État belge – SPF Finances

(Reference for a preliminary ruling from the Tribunal de première instance d’Arlon)

(First subparagraph of Article 104(3) of the Rules of Procedure – Freedom of establishment – Article 43 EC – Freedom to provide services – Article 49 EC – Motor vehicles – Use by a person residing in a Member State of a vehicle registered in another Member State – Taxation of that vehicle in the first Member State)

Summary of the Order

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Restrictions

(Arts 43 EC and 49 EC)

Articles 43 EC and 49 EC are to be interpreted as precluding national legislation of one Member State under which a self-employed person residing in that Member State is required to register there a vehicle leased from a company established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner.

A Member State may impose an obligation to register a motor vehicle leased by a worker residing in that Member State from a company established 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.

On the other hand, 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. In that regard, since those conditions do not apply to the use of his vehicle by the worker, the fact that he is self-employed in a Member State other than that in which he is resident as a natural person who owns a fixed establishment there and not as a director or manager of a company established there, or the fact that he has leased a vehicle from a company of that Member State himself and not through an employer who then made a vehicle available to him, cannot justify an obligation to register the vehicle in that worker’s Member State of residence.

(see paras 32-36, operative part)

24 October 2008 (*)

(First subparagraph of Article 104(3) of the Rules of Procedure – Freedom of establishment – Article 43 EC – Freedom to provide services – Article 49 EC – Motor vehicles – Use by a person residing in a Member State of a vehicle registered in another Member State – Taxation of that vehicle in the first Member State)

In Case C‑364/08,

REFERENCE for a preliminary ruling under Article 234 EC, from the tribunal de première instance d’Arlon (Belgium), made by decision of 24 July 2008, received at the Court on 7 August 2008, in the proceedings

État belge – SPF Finances,

THE COURT (Eighth Chamber),

composed of T. von Danwitz, President of Chamber, R. Silva de Lapuerta (Rapporteur) and E. Juhász, Judges,

Advocate General: M. Poiares Maduro,

Registrar: R. Grass,

the Court proposing to give its decision by reasoned order in accordance with the first subparagraph of Article 104(3) of its Rules of Procedure,

after hearing the Advocate General,

makes the following

This reference for a preliminary ruling concerns the interpretation of Articles 43 EC and 49 EC.

The reference was made in the context of proceedings between Mr Vandermeir and État Belge – SPF Finances – relating to the taxation of a vehicle registered and leased in Luxembourg.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

[1998] ECR I‑4695, paragraph 21; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 42; and Case C-414/06 Lidl Belgium [2008] ECR I-0000, paragraph 19).

26An obligation to register vehicles, such as that imposed by the legislation in question in the main proceedings on self-employed persons residing in Belgium, impedes access by those persons to self-employed work in other Member States and is thus liable to hinder or make less attractive their exercise of freedom of establishment (see, to that effect, Commission v Denmark, paragraph 46; Nadin and Nadin-Lux, paragraphs 36 and 37; and Commission v Finland, paragraph 40).

27As a result, that obligation constitutes a restriction on the freedom of establishment prohibited, as a rule, by Article 43 EC.

28Article 49 EC prohibits restrictions on freedom to provide services within the European Community.

29According to established case-law, that provision precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising that freedom or which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see Cura Anlagen, paragraphs 29 and 30, and orders in Case C-435/04 Leroy [2006] ECR I-4835, paragraph 11, and van de Coevering, paragraphs 19 and 20).

30An obligation to register vehicles, such as that at issue in the main proceedings, has the effect of making cross-border leasing activities more difficult (see Cura Anlagen, paragraph 37, and order in Leroy, paragraph 12).

31Therefore, that obligation constitutes a restriction within the meaning of Article 49 EC.

Justification for the restrictions on the freedom of establishment and freedom to provide services

32It is evident from the case-law of the Court that a Member State may impose an obligation to register a motor vehicle leased by a worker residing in that Member State from a company established 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).

33On the other hand, 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 order in van de Coevering, paragraph 26).

34With regard to a possible justification for the registration obligation in question in the main proceedings, the Court has already held, first, that it is contrary to Article 43 EC for the domestic legislation of one Member State to require a self-employed person residing in that Member State to register there a company vehicle made available to him by the company for which he works, established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner (see Nadin and Nadin-Lux, paragraph 55, and order in Leroy, paragraph 13) and, secondly, that it is contrary to Article 49 EC for the domestic legislation of one Member State to require a person residing in that Member State to register there a vehicle rented from a leasing company established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner (see order in Leroy, paragraph 14).

35It follows that, since Mr Vandermeir does not use his vehicle in the conditions set out in paragraph 32 above, the fact that he is self-employed in Luxembourg as a natural person who owns a fixed establishment in that Member State and not as a director or manager of a company established in that Member State, or the fact that he has leased a vehicle from a Luxembourg company himself and not through an employer who then made a vehicle available to him, cannot justify a registration obligation such as is at issue in the main proceedings.

36Taking all the above considerations into account, the answer to the question referred must be that Articles 43 EC and 49 EC are to be interpreted as precluding national legislation of one Member State, such as that in question in the main proceedings, under which a self-employed person residing in that Member State is required to register there a vehicle leased from a company established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner.

Costs

37Since 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.

On those grounds, the Court (Eighth Chamber) hereby rules:

Articles 43 EC and 49 EC are to be interpreted as precluding national legislation of one Member State, such as that in question in the main proceedings, under which a self-employed person residing in that Member State is required to register there a vehicle leased from a company established in another Member State, when it is not intended that that vehicle should be used essentially in the first Member State on a permanent basis and it is not, in fact, used in that manner.

[Signatures]

*

Language of the case: French.