Staatssecretaris van Financiën v L.A.C. van Putten and Others.
Date: 2012-04-26
23. In that regard, even though, formally, the national court has limited its questions to the interpretation of Article 18 EC, that does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the questions (see, to that effect, Case C‑251/06 ING. AUER [2007] ECR I‑9689, paragraph 38 and the case‑law cited).
24. The questions referred must be resolved in the light of all the provisions of the Treaty and of secondary legislation which may be relevant to the problem (see Case 137/84 Mutsch  [1985] ECR 2681, paragraph 10).
28. With regard to a loan agreed between citizens residing in different Member States, the scope of Article 56 EC must first be considered. In that connection, it is settled case‑law that, in the absence of a definition in the Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the nomenclature annexed to Council Directive 88/361/EEC has indicative value, even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73B to 73G of the EC Treaty, now Articles 56 EC to 60 EC), subject to the qualification, contained in the introduction to the nomenclature, that the list set out there does not define exhaustively the concept of movements of capital (see, inter alia, Case C‑318/07 Persche [2009] ECR I‑359, paragraph 24 and the case‑law cited; Case C‑182/08 Glaxo Wellcome  [2009] ECR I‑8591, paragraph 39; Case C‑35/08 Busley and Cibrian Fernandez  [2009] ECR I‑9807, paragraph 17, and Case C‑25/10 Missionswerk Werner Heukelbach  [2011] ECR I‑497, paragraph 15).
29. Thus, the Court has held that inheritances and gifts, which fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal Capital Movements’, constitute movements of capital within the meaning of Article 63 TFEU, except in cases where their constituent elements are confined within a single Member State (see Case C‑450/09 Schröder [2011] ECR I‑2497, paragraph 26 and the case‑law cited). The same applies to ‘loans’ which fall within the same heading of Annex I to that directive.
33. Next, as regards gifts, the Court has already had occasion to hold that, in order to determine whether the tax treatment by a Member State of certain transactions is covered by the provisions on the free movement of capital, there is no need to distinguish between transactions effected in money and those effected in kind (see Persche , paragraph 26).
36. It follows that, as the Advocate General pointed out in point 31 of her Opinion, the cross-border lending of a vehicle free of charge constitutes a capital movement within the meaning of Article 56 EC.
Whether there is any restriction on the free movement of capital and the possible justification for such restriction
37. First of all, it should be noted that, apart from certain exceptions not relevant to the main proceedings, taxation of motor vehicles has not been harmonised at European Union level. The Member States are thus free to exercise their powers of taxation in that area provided that they do so in compliance with European Union law (see Case C‑451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 40; Case C‑464/02 Commission  v Denmark  [2005] ECR I‑7929, paragraph 74; Joined Cases C‑151/04 and C‑152/04 Nadin and Nadin-Lux  [2005] ECR I‑11203, paragraph 40; judgment of 23 February 2006 in Case C‑232/03 Commission  v Finland , paragraph 46; order in Case C‑242/05 van de Coevering  [2006] ECR I‑5843, paragraph 23; order of 22 May 2008 in Case C‑42/08 Ilhan , paragraph 17, and order in Case C‑364/08 Vandermeir [2008] ECR I‑8087, paragraph 22).
40. On the other hand, loans of a motor vehicle for use free of charge are not subject to that tax where the vehicle is registered in the Netherlands. Such a difference, or at least apparent difference, in treatment according to the State in which the loaned vehicle is registered is, therefore, liable to make such cross border capital movements less attractive, by dissuading residents of the Netherlands from accepting loans offered by residents of another Member State of a vehicle registered in that State. Measures taken by a Member State which are liable to dissuade its residents from obtaining loans or making investments in other Member States constitute restrictions on movements of capital within the meaning of that provision (see Case C‑478/98 Commission v Belgium  [2000] ECR I‑7587, paragraph 18 and the case‑law cited).
43. According to the case‑law of the Court the principle of non-discrimination, whether it has its basis in Article 12 EC or Articles 39 EC, 43 EC or 56 EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way (see, to that effect, Case C‑155/09 Commission  v Greece  [2011] ECR I‑65, paragraph 68 and the case‑law cited).
46. The Court has already held that a Member State may impose a registration tax on a motor vehicle registered in another Member State where that vehicle is intended to be used essentially in the first Member State on a permanent basis or where it is, in fact, used in that manner (see, to that effect, Cura Anlagen , paragraph 42; Commission  v Denmark , paragraphs 75 to 78; Nadin and Nadin-Lux , paragraph 41; and Commission  v Finland , paragraph 47, and the orders in van de Coevering , paragraph 24, and Vandermeir , paragraph 32).
47. However, if those conditions are not satisfied, the connection with one Member State of the vehicle registered in another Member State is weaker, so that another justification for the restriction in question is necessary (see Commission  v Denmark , paragraph 79; Commission  v Finland , paragraph 48; and orders in van de Coevering , paragraph 26, and Vandermeir , paragraph 33).
50. Thus, if the vehicles at issue in the main proceedings, which are not registered in the Netherlands, are intended to be used essentially in the Netherlands on a permanent basis or if they are, in fact, used in that way, there is not actually a difference in the treatment of a person who resides in the Netherlands and uses such a vehicle free of charge and a person who uses a vehicle registered in that Member State on the same conditions, since the latter vehicle, which is also intended to be used essentially in the Netherlands on a permanent basis, was already subject to vehicle tax on its first registration in the Netherlands.
51. In those circumstances, the charging of vehicle tax on first use on the road network in the Netherlands of vehicles which are not registered in the Netherlands, is justified in the same way as the tax due on the registration of the vehicle in the Netherlands, mentioned in paragraph 46 of the present judgment, is, provided that the tax takes account, as appears to be required by the 1992 Law, of the depreciation of the vehicle at the time of that first use.
53. Even if such a difference in treatment might, in some circumstances, be justified by an overriding reason in the general interest, it is also necessary for the tax to comply with the principle of proportionality (see, to that effect, the order in van de Coevering , paragraph 27 and the case‑law cited).