1 This request for a preliminary ruling concerns the interpretation of Article 9 of the Agreement establishing an Association between the European Economic Community and Turkey signed on 12 September 1963 at Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, which was concluded, approved and confirmed on behalf of the latter by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘the EEC-Turkey Agreement’), of Articles 4, 5 and 7 of Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (OJ 1996 L 35, p. 1) (‘Decision No 1/95 of the Association Council’), of Article 3(2) TFEU, and of Article 1(2) and Article 1(3)(a) of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ 2009 L 300, p. 72).
2 The request has been made in proceedings between Istanbul Lojistik Ltd, a Turkish haulage company, and the Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság (Appeals Division of the National Tax and Customs Authority, Hungary) (‘the second-instance tax authority’) concerning the latter’s decision to make a heavy goods vehicle belonging to that company subject to payment of a tax by reason of the fact that it crossed the Hungarian border.
3 Under Article 9 of the EEC-Turkey Agreement: ‘The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.’
4 Article 62 of the Additional Protocol, signed on 23 November 1970 at Brussels, annexed to the EEC-Turkey Agreement and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1977 L 361, p. 60) (‘the Additional Protocol’), provides that the additional protocol forms an integral part of the EEC-Turkey Agreement.
5 Article 42(1) of the Additional Protocol reads as follows: ‘The Council of Association shall extend to Turkey, in accordance with the rules which it shall determine, the transport provisions of the Treaty establishing the Community with due regard to the geographical situation of Turkey. In the same way it may extend to Turkey measures taken by the Community in applying those provisions in respect of transport by rail, road and inland waterway.’
6 Under Article 1 of Decision No 1/95 of the Association Council: ‘Without prejudice to the provisions of the [EEC-Turkey Agreement], its Additional and Supplementary Protocols, the Association Council hereby lays down the rules for implementing the final phase of the Customs Union, laid down in Articles 2 and 5 of the abovementioned Agreement.’
7 Chapter I of the decision, on the free movement of goods and commercial policy, contains Section I, headed ‘Elimination of customs duties and charges having equivalent effect’. Article 4 of the decision, which forms part of that section, provides: ‘Import or export customs duties and charges having equivalent effect shall be wholly abolished between the Community and Turkey on the date of entry into force of this Decision. The Community and Turkey shall refrain from introducing any new customs duties on imports or exports or any charges having equivalent effect from that date. These provisions shall also apply to customs duties of a fiscal nature.’
8 Section II of that chapter, headed ‘Elimination of quantitative restrictions or measures having equivalent effect’, consists of Articles 5 to 11 of Decision No 1/95 of the Association Council. Article 5 thereof provides: ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between the Parties.’
9 Article 6 of the decision is worded as follows: ‘Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between the Parties.’
10 According to Article 7 of Decision No 1/95 of the Association Council: ‘The provisions of Articles 5 and 6 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions must not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties.’
11 Article 66 of the decision provides: ‘The provisions of this Decision, in so far as they are identical in substance to the corresponding provisions of the Treaty establishing the European Community, shall be interpreted for the purposes of their implementation and application to products covered by the Customs Union, in conformity with the relevant decisions of the Court of Justice of the European Communities.’
12 Article 1 of Regulation No 1072/2009, headed ‘Scope’, provides: ‘1. This Regulation shall apply to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the Community. 2. In the event of carriage from a Member State to a third country and vice versa, this Regulation shall apply to the part of the journey on the territory of any Member State crossed in transit. It shall not apply to that part of the journey on the territory of the Member State of loading or unloading, as long as the necessary agreement between the Community and the third country concerned has not been concluded. 3. Pending the conclusion of the agreements referred to in paragraph 2, this Regulation shall not affect: (a) provisions relating to the carriage from a Member State to a third country and vice versa included in bilateral agreements concluded by Member States with those third countries; …’
13 Article 18(3) of the International Road Haulage Agreement concluded between the Presidential Council and the Government of the Hungarian People’s Republic, of the one part, and the Government of the Republic of Turkey, of the other part, which was signed at Budapest on 14 September 1968 (Magyar Közlöny 1969/78 (X. 11.)) (‘the Hungary-Turkey Agreement’), provides: ‘Vehicles carrying goods through the territory of the other Contracting Party, including on the empty run, shall be subject to any charges, surcharges, duties and fees that are payable in respect of the carriage of goods and to cover costs in connection with the maintenance and repair of roads, including charges in respect of vehicles exceeding the permissible maximum weights under the national rules of the other Contracting Party.’
14 The preamble to the gépjárműadóról szóló 1991. évi LXXXII. törvény (Law No LXXXII of 1991 on Motor Vehicle Tax) (Magyar Közlöny 1991/145 (XII. 26.)) (‘the Law on Motor Vehicle Tax’) is worded as follows: ‘The National Assembly, in the interests of a more proportionate sharing of public costs in relation to motor vehicle traffic, increasing the revenue of the local authorities or, in the case of the capital, of the boroughs, and expanding the sources of funding needed to maintain and develop the public road network, [adopts the present law] on motor vehicle tax.’
15 Under Article 1 of that law: ‘1. Motor vehicle tax is payable on any vehicle or trailer with Hungarian registration plates and any heavy goods vehicle registered abroad being driven on Hungarian territory (referred to jointly as “the vehicle”) … 2. The scope of the present law does not include …, in the category of heavy goods vehicles registered abroad, those registered in a Member State of the European Union.’
16 Article 10 of the Law on Motor Vehicle Tax provides that ‘the tax shall be payable by the person operating the vehicle’.
17 According to Article 11 of that law, ‘tax liability shall begin on the day of entry into Hungarian territory’.
18 Article 15 of the law provides: ‘1. In the case of a vehicle (or, for the purposes of applying this paragraph, of coupled vehicles) with a maximum laden weight of no more than 12 tonnes, being driven under a transport licence used for local transport, a tax of 10000 [Hungarian forint (HUF)] [(approximately EUR 33)] shall be paid in respect of both the outward and the return journey, whereas, in the case of a vehicle with a maximum laden weight of more than 12 tonnes, being driven under a transport licence used for local transport, a tax of HUF 30000 [(approximately EUR 100)] shall be paid in respect of both the outward and the return journey. In the case of a vehicle with a maximum laden weight of no more than 12 tonnes, being driven under a transport licence used for transit purposes (which shall include use of an authorisation issued by a third country), a tax of HUF 20000 [(approximately EUR 66)] shall be paid in respect of both the outward and the return journey, whereas, in the case of a vehicle with a maximum laden weight of more than 12 tonnes, being driven under a transport licence used for transit purposes, a tax of HUF 60000 [(approximately EUR 200)] shall be paid in respect of both the outward and the return journey. The obligation to pay the tax pursuant to the aforementioned provisions shall also apply where the transport licence is not valid, or where the person liable for the tax used the licence unlawfully, or where he or she drove the vehicle without any transport licence. 2. The amounts of tax laid down in paragraph 1 shall be payable in respect of an outward or a return journey and for a stay on Hungarian territory not exceeding 48 hours per journey. If the stay is longer, the tax shall be paid, in accordance with the provisions of paragraph 1 above, in respect of each additional 48-hour period or part thereof. … 3. The amount of the tax payable under paragraph 1 shall be paid through the purchase of a revenue stamp to be affixed to the road transport licence - in the case of local transport, for the entire duration of the journey and, in the case of transport for transit purposes, separately for the outward and the return journey - at the time of entry into Hungarian territory. Once the stamp/stamps is/are affixed, the person liable for the tax is required to mark on it/them the date and time of entry (year-month-day-time). If the obligation to pay the tax (revenue stamp) is not met, it is possible to drive with a transport licence that is subject to tax and not incur a penalty only within a maximum radius of 5 km from the point of entry into Hungarian territory.’
19 Article 17(2) of the Law on Motor Vehicle Tax is worded as follows: ‘If the person liable for the tax has failed in part or in full to meet his or her obligation to pay the tax, the customs authority shall declare that a tax debt has arisen and impose a tax penalty equivalent to five times the amount of that debt. ...’
20 The közúti közlekedésről szóló 1988. évi I. törvény (Law No I of 1988 on Road Traffic) (Magyar Közlöny 1988/15 (IV. 21.)) provides, in Article 20(1)(a) thereof, that ‘a fine may be imposed on any person who infringes the provisions relating to national or international road transport services (carriage of persons or goods) that are subject to authorisation and the possession of a document, as provided for in this law or in specific legislation or acts of Community law’.
21 Under Article 4 of the díj ellenében végzett közúti árutovábbítási, a saját számlás áruszállítási, valamint az autóbusszal díj ellenében végzett személyszállítási és a saját számlás személyszállítási tevékenységről, továbbá az ezekkel összefüggő jogszabályok módosításáról szóló 261/2011. (XII. 7.) Korm. rendelet (Government Decree No 261/2011 (XII. 7.) on commercial road haulage, own-account road haulage, commercial passenger transport by coach and own-account passenger transport, amending the relevant legal rules relating to those activities) (Magyar Közlöny 2011/146 (XII. 7.)): ‘1. Commercial road haulage or own-account road haulage, in the context of international traffic through Hungarian territory, may be carried out with (a) a Community licence - issued for international road haulage -, as provided for in Article 4 of [Regulation No 1072/2009] … (b) an authorisation from the International Transport Forum …, or (c) a licence for heavy goods vehicles issued on the basis of a bilateral or multilateral agreement, in respect of the activity in question.’
22 Under Article 2 of the közúti árufuvarozáshoz, személyszállításhoz és a közúti közlekedéshez kapcsolódó egyes rendelkezések megsértése esetén kiszabható bírságok összegéről, valamint a bírságolással összefüggő hatósági feladatokról szóló 156/2009. (VII. 29.) Korm. rendelet (Government Decree No 156/2009 (VII. 29.) on the amount of fines liable to be imposed for infringements of certain provisions relating to the carriage by road of goods and persons and to road traffic, and on the tasks of the administrative authorities connected with the imposition of fines) (Magyar Közlöny 2009/107 (VII. 29.)): ‘For the purposes of Article 20(1)(a) of [Law No I of 1988 on Road Traffic], and save as otherwise provided, a fine of an amount laid down in Annex 1 shall be imposed on any person who … (b) infringes the provisions relating to the authorisations and documents required in order to operate road transport services, laid down in [Article 4(1)(c) of Government Decree No 261/2011 on the carriage of goods]. Pursuant to Point 5(a) of Annex 1, any haulier without a valid road haulage licence or who holds a road haulage licence that is not valid shall pay a fine of HUF 300000 [(approximately EUR 1000)].’
23 Istanbul Lojistik is a company registered in Turkey which carries goods by road from Turkey to various Member States, primarily to Germany, on behalf of undertakings established in Turkey and the European Union.
24 On 30 March 2015, the Nemzeti Adó- és Vámhivatal (National Tax and Customs Authority, Hungary) carried out an inspection in the vicinity of Nagylak (Hungary), near the border with Romania, on a coupled combination of vehicles with a maximum laden weight of more than 12 tonnes, registered in Turkey and operated by Istanbul Lojistik. That company held a Hungarian-Turkish transit licence for the heavy goods vehicle concerned, which it was using to transport textiles from Turkey to Germany via Hungary as State of transit. The transit licence contained all the information required under the Hungarian rules but the revenue stamp for the amount of motor vehicle tax required, which showed that that tax had been paid, had not been affixed to the licence.
25 By administrative decisions of 31 March 2015, adopted after that inspection, the national tax and customs authority declared that Istanbul Lojistik had not complied with its obligation to pay tax under the Law on Motor Vehicle Tax and, therefore, its transit licence was not valid. That authority required Istanbul Lojistik to pay the sum of HUF 60000 (approximately EUR 200) in respect of that tax, together with a tax penalty of HUF 300000 (approximately EUR 1000) and an administrative fine in the same amount, amounting to a total of HUF 660000 (approximately EUR 2200).
26 Istanbul Lojistik brought an administrative appeal against those decisions before the second-instance tax authority, which, by decisions of 13 May 2015, upheld them.
27 The company then brought an action before the Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) against the decisions of the second-instance tax authority.
28 In support of its action, Istanbul Lojistik claims that the provisions of the Law on Motor Vehicle Tax at issue infringe Articles 4 to 6 of Decision No 1/95 of the Association Council. It submits that the motor vehicle tax may be regarded as a charge having equivalent effect to a customs duty within the meaning of Article 30 TFEU and, therefore, of Article 4 of the decision. In its view, that tax is levied in a manner that is both discriminatory and protective and constitutes a restriction on the free movement of goods that is contrary to EU law.
29 The second-instance tax authority contends that the action should be dismissed.
30 The Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged) is uncertain whether the motor vehicle tax at issue constitutes a charge having equivalent effect to a customs duty contrary to Article 4 of Decision No 1/95 of the Association Council. The national court notes that, under the national legislation at issue, persons operating motor vehicles registered in a Member State are not required to pay the motor vehicle tax, whilst persons operating motor vehicles registered in Turkey must pay that tax in respect of transit through Hungary.
31 If the Court finds that the motor vehicle tax is not a charge having equivalent effect to a customs duty, the question will arise, according to the referring court, as to whether that tax is a measure having equivalent effect to a quantitative restriction and, accordingly, a measure contrary to Article 5 of Decision No 1/95 of the Association Council.
32 If that question is answered in the affirmative, the referring court asks whether the tax may be justified, pursuant to Article 7 of Decision No 1/95 of the Association Council, on road safety grounds and for the purposes of the prosecution of offences. The referring court states that the Law on Motor Vehicle Tax seeks, inter alia, to attain a more proportionate sharing of public costs in relation to motor vehicle traffic, to increase the revenue of local authorities, and to secure the sources of funding needed to maintain and develop the public road network. The referring court is also uncertain whether the motor vehicle tax is proportionate, appropriate for securing the attainment of the objectives pursued and non-discriminatory.
33 If that tax is neither a charge having equivalent effect to a customs duty nor a measure having equivalent effect to a quantitative restriction, the referring court asks whether the application of the Hungary-Turkey Agreement is compatible with Article 3(2) TFEU and with Regulation No 1072/2009, since transport, according to the referring court, falls within the exclusive competence of the European Union.
34 The referring court also entertains doubt as to whether the tax discriminates against Turkish hauliers within the meaning of Article 9 of the EEC-Turkey Agreement.
35 Against that background, the Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged) stayed the proceedings and referred the following questions to the Court for a preliminary ruling: ‘(1) Must Article 4 of [Decision No 1/95 of the Association Council] be interpreted as meaning that a tax such as that imposed by the Law on Motor Vehicle Tax, which, in accordance with [that law], is levied on heavy goods vehicles with a Turkish registration number operated by a Turkish haulier and used for the carriage of goods, by reason of the fact that such vehicles cross the Hungarian border in order to reach another Member State - starting from Turkey and passing through Hungary as the transit Member State - constitutes a charge having equivalent effect to a customs duty and is, therefore, incompatible with that provision? (2) (a) If the answer to the first question is no, must Article 5 of [Decision No 1/95 of the Association Council] be interpreted as meaning that a tax such as that imposed by the Law on Motor Vehicle Tax, which, in accordance with [that law], is levied on heavy goods vehicles with a Turkish registration number operated by a Turkish haulier and used for the carriage of goods, by reason of the fact that such vehicles cross the Hungarian border in order to reach another Member State - starting from Turkey and passing through Hungary as the transit Member State - constitutes a measure having equivalent effect to a quantitative restriction and is, therefore, incompatible with that provision? (b) Must Article 7 of [Decision No 1/95 of the Association Council] be interpreted as meaning that it is permissible, on road safety grounds and for the purposes of the prosecution of offences, to apply a tax such as that imposed by the Law on Motor Vehicle Tax, which, in accordance with [that law], is levied on heavy goods vehicles with a Turkish registration number operated by a Turkish haulier and used for the carriage of goods, by reason of the fact that such vehicles cross the Hungarian border in order to reach another Member State, starting from Turkey and passing through Hungary as the transit Member State? (3) Must Article 3(2) TFEU and Article 1(2) and (3)(a) of Regulation No 1072/2009 be interpreted as precluding the Member State of transit from applying, on the basis of a bilateral transport agreement concluded with Turkey, a tax such as that imposed by the Law on Motor Vehicle Tax, which, in accordance with [that law], is levied on heavy goods vehicles with a Turkish registration number operated by a Turkish haulier and used for the carriage of goods, by reason of the fact that such vehicles cross the Hungarian border in order to reach another Member State, starting from Turkey and passing through Hungary as the transit Member State? (4) Must Article 9 of [the EEC-Turkey Agreement] be interpreted as meaning that a tax such as that imposed by the Law on Motor Vehicle Tax, which, in accordance with [that law], is levied on heavy goods vehicles with a Turkish registration number operated by a Turkish haulier and used for the carriage of goods, by reason of the fact that such vehicles cross the Hungarian border in order to reach another Member State - starting from Turkey and passing through Hungary as the transit Member State - gives rise to discrimination on grounds of nationality and is, therefore, incompatible with that provision?’
36 By its first question, the referring court asks whether, in essence, Article 4 of Decision No 1/95 of the Association Council must be interpreted as meaning that a tax on motor vehicles such as that at issue in the main proceedings, which must be paid by persons operating heavy goods vehicles registered in Turkey in transit through Hungarian territory, constitutes a charge having equivalent effect to a customs duty within the meaning of that article.
37 It is apparent from Article 1 of that decision that it lays down the rules for implementing the final phase of the Customs Union between the European Union and the Republic of Turkey. According to Article 4 of the decision, on the date of its entry into force, import or export customs duties and charges having equivalent effect to a customs duty are to be wholly abolished between the European Union and the Republic of Turkey.
38 Article 66 of Decision No 1/95 of the Association Council provides that the provisions of the decision, in so far as they are identical in substance to the corresponding provisions of the EC Treaty, now the FEU Treaty, are to be interpreted in conformity with the relevant decisions of the Court of Justice. Since Article 4 of the decision is identical in substance to Article 30 TFEU, it must be interpreted in conformity with the case-law of the Court concerning the latter provision.
39 Accordingly, it should be noted that any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 28 and 30 TFEU (judgments of 18 January 2007, Brzeziński, C‑313/05, EU:C:2007:33, paragraph 22 and the case-law cited, and of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 23). The justification for the prohibition of charges having an effect equivalent to customs duties lies in the fact that those charges constitute an obstacle to the movement of goods, in that they artificially increase the price of imported or exported goods in relation to domestic products (judgment of 21 March 1991, Commission v Italy, C‑209/89, EU:C:1991:139, paragraph 7).
40 In addition, charges having equivalent effect to customs duties are prohibited irrespective of the purpose for which they were introduced and the destination of the revenue they generate (judgment of 21 June 2007, Commission v Italy, C‑173/05, EU:C:2007:362, paragraph 42 and the case-law cited).
41 It should also be observed that the grounds for justification listed in Article 36 TFUE apply exclusively to measures having equivalent effect to a quantitative restriction and not to charges having equivalent effect to a customs duty (see, inter alia, judgment of 14 June 1988, Dansk Denkavit, 29/87, EU:C:1988:299, paragraph 32).
42 Moreover, the Customs Union necessarily entails the free movement of goods between the Member States. That freedom could not itself be complete if it were possible for the Member States to impede or interfere in any way with the movement of goods in transit. It is thereof necessary, as a consequence of the Customs Union and in the mutual interest of the Member States, to acknowledge the existence of a general principle of freedom of transit of goods within the European Union (judgment of 21 June 2007, Commission v Italy, C‑173/05, EU:C:2007:362, paragraph 31 and the case-law cited). Indeed, the Member States would contravene that principle if they were to apply to goods in transit through their territory transit duties or other charges imposed in respect of transit (judgment of 16 March 1983, SIOT, 266/81, EU:C:1983:77, paragraph 19).
43 It must also be observed that the Court has previously held that a charge which is triggered by the carriage of goods and which is imposed not on a product as such, but on a necessary activity in connection with the product, may fall within the scope of Article 30 TFEU (judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 44 and the case-law cited). Indeed, such a charge is imposed on products, even where it has been levied on the transport of goods or the use of roads and has first to be paid by the person operating the heavy goods vehicle (see, to that effect, judgment of 17 July 1997, Haahr Petroleum, C‑90/94, EU:C:1997:368, paragraph 38).
44 For the reasons set out in paragraphs 37 and 38 above, the interpretation of the provisions of the FEU Treaty in respect of the free movement of goods within the European Union may be transposed to the provisions concerning the free movement of goods within the Customs Union stemming from the EEC-Turkey Agreement.
45 In the present case, the Law on Motor Vehicle Tax at issue in the main proceedings provides that the motor vehicle tax must be paid, with regard to heavy goods vehicles registered in third countries, at the time of entry into Hungarian territory, in respect of both the outward and the return journey. The amount of tax depends on criteria that are linked, inter alia, to the quantity of goods that can be carried and to their destination.
46 Accordingly, the Court finds that, in the light of the case-law cited in paragraphs 40 to 43 above, even though the motor vehicle tax is not levied on products as such, it is imposed on the goods transported by vehicles registered in a third country, in particular Turkey, when they cross the Hungarian border, and not, as submitted by the Hungarian and Italian Governments, on the transport service.
47 It is irrelevant in that regard, in the light of the case-law cited in paragraphs 39 to 41 above, that, as argued by the Hungarian Government, the amount of the tax is low and that the imposition of that tax is justified by the need to maintain the national road network and the ecological damage resulting from that mode of transport.
48 It follows that a motor vehicle tax such as that at issue in the main proceedings constitutes a charge having equivalent effect to a customs duty within the meaning of Article 4 of Decision No 1/95 of the Association Council since it amounts to a pecuniary charge imposed unilaterally and levied on goods by reason of the fact that they cross a border.
49 In the light of the foregoing, the answer to the first question is that Article 4 of Decision No 1/95 of the Association Council must be interpreted as meaning that a tax on motor vehicles such as that at issue in the main proceedings, which must be paid by persons operating heavy goods vehicles registered in Turkey and in transit through Hungarian territory, constitutes a charge having equivalent effect to a customs duty within the meaning of that article.
50 In the light of the answer to the first question, there is no need to answer the second to fourth questions.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.