Georgios Alevizos v Ypourgos Oikonomikon.
Date: 2007-04-26
36. It is clear that the scope of Directive 92/12 is defined in Article 3(1) thereof by reference to three categories of products constituting an exhaustive list, which correspond, as is clear from the third recital in the preamble to the directive, to goods which are treated as subject to excise duty ‘in all the Member States’. That list does not include motor vehicles, which are thus excluded from the scope of that directive.
38. Moreover, whilst for the products referred to in Article 3(1) of Directive 92/12, the harmonisation carried out by that directive – particularly through the standardisation of requirements for levying excise duties in the Community, to ensure the establishment and functioning of the internal market (see the fourth recital in the preamble to Directive 92/12; see also Case C‑296/95 EMU Tabac and Others  [1998] ECR I‑1605, paragraph 22; Case C‑325/99 Van de Water  [2001] ECR I‑2729, paragraph 39; and Case C‑240/01 Commission  v Germany  [2004] ECR I‑4733, paragraph 36) – makes it possible to avoid double taxation in relations between Member States and therefore renders unnecessary the application to those products of the provisions of Directive 83/183 concerning exemptions from excise duty on imports (see recital 20 in the preamble to Directive 92/12), conversely, it applies differently for other products.
42. In that respect, it is necessary to state at the outset that Directive 83/183 was adopted on the basis of Article 99 of the EC Treaty (now Article 93 EC). That provision empowers the Council to harmonise national legislation concerning, inter alia, excise duties, to the extent necessary to ensure the establishment and functioning of the internal market ( Commission  v Germany , paragraph 35).
48. One of the taxes at issue in the main proceedings constitutes, under the applicable national legislation, ‘excise duty’ (see paragraph 26 of this judgment) and therefore normally comes within the scope of the tax exemption provided for by Article 1(1) of Directive 83/183. While the name given to a tax in national law is not as such decisive (see Case C-365/02 Lindfors  [2004] ECR I-7183, paragraph 24), it is nevertheless for the national court to determine whether that tax may be considered to be normally chargeable on the permanent import into Greece of a vehicle for personal use from another Member State, as required by Article 1(1).
49. As regards the special registration tax, also the subject of complaint by Mr Alevizos (see paragraph 26 of this judgment), it must be stated that it is settled case‑law of the Court that, in order for it to fall within the scope of the tax exemption provided for in Article 1(1) of Directive 83/183, the tax at issue must correspond, according to the national law applicable, to a levy linked to actual importation. Conversely, where the national provisions governing the tax concerned identify the operative event giving rise to the tax as something other than importation, such as a first registration or the use of a vehicle on national territory, the tax does not come within the scope of Article 1(1) of Directive 83/183 (see Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 47; Lindfors , paragraph 26; and the judgment of 16 June 2005 in Case C‑138/04 Commission  v Denmark , not published in the ECR, paragraph 13).
53. It is important, first, to note that the objective of Directive 83/183, in the light of which the question raised must be answered, is, according to the recitals in its preamble, to encourage free movement of persons within the Community. The elimination of obstacles to the importation into one Member State of personal property from another is, from that point of view, particularly necessary for the creation of conditions analogous to those of an internal market (see, by analogy, Case C‑262/99 Louloudakis  [2001] ECR I‑5547, paragraph 58).
54. Secondly, with regard to Article 7 of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (OJ 1983 L 105, p. 59), which defines the concept of normal residence in terms analogous to those used in Article 6 of Directive 83/183, the Court has already held that the criteria for determining that concept refer both to a person’s occupational and personal ties with a particular place and to the duration of those ties. Consequently, they must be examined in conjunction with each other (see Case C‑297/89 Ryborg  [1991] ECR I‑1943, paragraph 19, and Louloudakis , paragraph 51).
55. Normal residence must be regarded as the place where a person has established his permanent centre of interests (see, by analogy, Ryborg , paragraph 19, and Louloudakis , paragraph 51).
57. All of the relevant facts must be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned (see Ryborg , paragraph 20), namely, in particular, the actual presence of the person concerned and of the members of his family, the availability of accommodation, the place where the children actually attend school, the place where business is conducted, the place where property interests are situated, that of administrative links to public services and social services, inasmuch as those factors express the intention of that person to confer a certain stability on the place of connection, by reason of the continuity arising from a way of life and the development of normal social and occupational relationships ( Louloudakis , paragraph 55).
58. It must be pointed out that, although, in accordance with the second subparagraph of Article 6(1) of Directive 83/183, the aspect of attendance at an educational establishment does not imply transfer of normal residence as regards the person concerned himself, it may none the less, considered in a family context, be evidence of such transfer, as stated by Mr Alevizos in his written observations, with regard to his children (see, by analogy, Louloudakis , paragraph 56).
60. Secondly, it is clear from the second subparagraph of Article 6(1) of Directive 83/183 that that provision gives priority to personal ties where the person concerned does not have personal and occupational ties concentrated in a single Member State (see, by analogy, Louloudakis , paragraph 52).
61. Thus, Article 6(1) of Directive 83/183 provides for both occupational and personal ties to a given place to be taken into account and must be interpreted as meaning that, in the event that an overall assessment of occupational and personal ties does not suffice to locate the permanent centre of interests of the person concerned, primacy must be given, for the purposes of locating it, to personal ties (see, by analogy, Louloudakis , paragraph 53).
64. Even if, formally, the national court has limited its question to the interpretation of Article 6 of Directive 83/183, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, Case C-241/89 SARPP  [1990] ECR I-4695, paragraph 8; Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola  [1999] ECR I‑1301, paragraph 16; Weigel , paragraph 44; and Lindfors , paragraph 32).
66. According to settled case‑law, Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to freedom of movement for workers (see Case C‑100/01 Oteiza Olazabal  [2002] ECR I‑10981, paragraph 26, and Case C‑520/04 Turpeinen  [2006] ECR I‑0000, paragraph 13). It is therefore necessary to ascertain first whether the case in the main proceedings can come within the scope of Article 39 EC.
67. In that respect it is necessary to point out that the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to the case-law of the Court, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C-138/02 Collins  [2004] ECR I‑2703, paragraph 26; and Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 15).
68. As follows from well-established case‑law, the legal nature of the employment relationship is of no consequence in regard to the application of Article 39 EC (see, in particular, Case 152/73 Sotgiu  [1974] ECR 153, paragraph 5; Case 344/87 Bettray  [1989] ECR 1621, paragraph 16; and Trojani , paragraph 16). The fact that the worker is employed as a civil servant, or even that the employment relationship is governed by public law rather than by private law, is irrelevant in that respect (see Sotgiu , paragraph 5).
69. Moreover, whilst acknowledging that the position occupied by Mr Alevizos in the Greek Air Force before his temporary posting to a position in NATO might fall within the concept of ‘employment in the public service’ within the meaning of Article 39(4) EC in so far as it involves direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities (see, to that effect, Case 149/79 Commission  v Belgium  [1980] ECR 3881, paragraph 10; Case C‑290/94 Commission  v Greece  [1996] ECR I‑3285, paragraph 2; Case C‑47/02 Anker and Others  [2003] ECR I‑10447, paragraph 58), it must be noted that, taking account of the fundamental nature, in the scheme of the EC Treaty, of the principles of freedom of movement and equality of treatment of workers within the Community, the exceptions made by that provision cannot have a scope going beyond the aim in view of which that derogation was included ( Sotgiu , paragraph 4).
70. That aim is to allow only Member States the opportunity of restricting admission of foreign nationals to certain positions in the public service ( Sotgiu , paragraph 4), which presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality (see Commission  v Belgium , paragraph 10). Article 39(4) EC cannot, conversely, have the effect of disentitling a worker, once admitted into the public service of a Member State, to the application of the provisions contained in Article 39(1) to (3) EC (see, to that effect, Sotgiu , paragraph 4).
72. Concerning Mr Alevizos’s temporary posting to a position in NATO, it is settled case‑law that a Community national working in a Member State other than his State of origin does not lose his status as a ‘worker’ within the meaning of Article 39(1) EC through occupying a post in an international organisation (see, inter alia, Joined Cases 389/87 and 390/87 Echternach and Moritz  [1989] ECR 723, paragraphs 11 and 15; Case C‑209/01 Schilling and Fleck-Schilling [2003] ECR I‑13389, paragraph 28; Case C‑293/03 My  [2004] ECR I‑12013, paragraph 37; and Case C‑185/04 Öberg  [2006] ECR I‑1453, paragraph 12).
73. It follows that a national of a Member State such as Mr Alevizos may not be refused the rights and protection which Article 39 EC affords him (see, to that effect, Öberg , paragraph 13).
74. It is settled case‑law of the Court that all of the Treaty provisions relating to the freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community (see, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 94; Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 37; Case C‑190/98 Graf  [2000] ECR I‑493, paragraph 21; and Weigel , paragraph 52).
75. In the present case, the levying of the taxes in the case in the main proceedings could have the effect for Mr Alevizos of making return to his Member State of origin less attractive if, owing to the legislation of that State, that return, after the completion of professional activities in another Member State, is accompanied by unfavourable consequences in respect of the tax situation of workers who have availed themselves of their right to free movement. Such consequences would thus be likely to dissuade a national of one Member State from leaving it in order to carry on an activity in another Member State and to exercise his right to free movement (see, to that effect, Case C‑370/90 Singh  [1992] ECR I‑4265, paragraphs 19 and 23, and Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 31).
76. However, the EC Treaty offers no guarantee to a worker that transferring his activities to a Member State other than that in which he previously resided will be neutral as regards taxation. Given the disparities in the tax legislation of the Member States, such a transfer may be to the worker’s advantage in terms of indirect taxation or not, according to circumstance. It follows that, in principle, any disadvantage, by comparison with the situation in which that worker carried on activities prior to that transfer, is not contrary to Article 39 EC, provided, however, that the legislation concerned does not place that worker at a disadvantage as compared with those already subject to such a tax (see Weigel , paragraph 55, and Lindfors , paragraph 34).
78. In the present case, it will be for the national court to determine whether the national provisions governing the taxes at issue in the main proceedings are based on objective criteria and ensure, in particular as regards the account to be taken of the actual depreciation of the vehicle subject to tax (see, to that effect, Case C‑47/88 Commission  v Denmark  [1990] ECR I‑4509, paragraphs 19 to 22; Weigel , paragraph 70; and Joined Cases C‑290/05 and C‑333/05 Nádasdi and Németh [2006] ECR I‑0000, paragraphs 47 and 51 to 57), that Mr Alevizos is not placed in a less favourable position than that of workers who have been permanently resident in Greece (see, to that effect, Lindfors , paragraph 35).
79. Should the national court find that such a less favourable situation exists, it would then have to examine whether that difference in treatment is justified by objective considerations that are independent of the residence of the persons concerned and proportionate to the legitimate aim pursued by national law (see D’Hoop , paragraph 36, and Lindfors , paragraph 35).
80. Since the case in the main proceedings is capable of falling within the scope of Article 39 EC, it is not necessary to rule on the interpretation of Article 18 EC (see, to that effect, Oteiza Olazabal , paragraph 26).