Parties

In Case C‑18/08,

REFERENCE for a preliminary ruling under Article 234 EC, from the Tribunal d’instance de Bordeaux (France), made by decision of 4 December 2007, received at the Court on 21 January 2008, in the proceedings

Administration des douanes et droits indirects,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, K. Schiemann, J. Makarczyk, P. Kūris (Rapporteur) and C. Toader, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–Foselev Sud-Ouest SARL, by L. Menestrier, avocat,

–the French Government, by G. de Bergues and L. Butel, acting as Agents,

–the Italian Government, by R. Adam, acting as Agent, and F. Arena, avvocato dello Stato,

–the Commission of the European Communities, by D. Maidani, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 25 September 2008,

gives the following

Grounds

Legal background

3. Article 6(2) of Directive 1999/62 provides:

‘Member States may apply reduced rates or exemptions for:

…

(b) vehicles which travel only occasionally on the public roads of the Member State of registration and are used by natural or legal persons whose main occupation is not the carriage of goods, provided that the transport operations carried out by these vehicles do not cause distortions of competition, and subject to the Commission’s agreement.’

4. The enacting terms of Decision 2005/449 provide as follows:

‘Article 1

The Commission hereby gives its agreement to exempt until 31 December 2009 from vehicle tax in accordance with Article 6(2)(b) of Directive 1999/62/EC the following vehicles of 12 tonnes or more, which are used exclusively for the carriage of permanently installed equipment for public and industrial works in France:

…

Article 2

This Decision is addressed to the French Republic.’

5. The French authorities implemented Decision 2005/449 by Decree No 2006-818 of 7 July 2006 amending Decree No 70-1285 of 23 December 1970 on the transfer to the customs administration of the basis of assessment and the recovery of the special tax on certain road vehicles (JORF of 9 July 2006, p. 10311).

The dispute in the main proceedings and the question referred for a preliminary ruling

7. The Administration des douanes et droits indirects argues, however, that the exemption relied on by Foselev did not enter into force until the date on which Decree No 2006-818 was published in the Journal official de la République française, that is to say, 9 July 2006.

‘Article 6(2)(b) of Directive 1999/62 … provides for the possibility for a Member State to exempt [from the taxes covered by that directive] certain categories of vehicle. In this context, is the authorisation given to [the French Republic] by the Commission, in Decision [2005/449], to exempt certain categories of vehicle directly applicable to individuals or, as it concerns an authorisation decision addressed to [the French Republic], is a measure transposing it into national law necessary?’

The question referred for a preliminary ruling

10. In that connection, the fourth paragraph of Article 249 EC provides that a decision is to be binding in its entirety upon those to whom it is addressed. In the present case, it is evident that the addressee of Decision 2005/449 is the French Republic.

11. Furthermore, it should be borne in mind that the Court has held, first, that it would be incompatible with the binding effect attributed to decisions by Article 189 of the EEC Treaty (which became Article 189 of the EC Treaty, now Article 249 EC) to exclude in principle the possibility that persons affected may invoke the obligation imposed by the decision and, secondly, that a provision of a decision addressed to a Member State may be relied on as against that Member State where the provision in question imposes on its addressee an obligation which is unconditional and sufficiently clear and precise (Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I-5567, paragraphs 12 and 13 and the case-law cited).

12. It must therefore be determined whether Decision 2005/449 imposes on the French Republic an unconditional obligation which is sufficiently clear and precise.

13. In that regard, it should be noted that the legal basis for that decision is Article 6(2)(b) of Directive 1999/62, under which it is possible for a Member State to exempt certain vehicles from motor vehicle tax or to apply a reduced rate of taxation to such vehicles.

14. Furthermore, in accordance with that provision, use of that possibility by a Member State is conditional upon the Commission’s approval of a draft measure.

15. Accordingly, it is sufficient to hold that, in spite of the part played by the Commission, the Member States have a broad discretion both as regards their decision to make use of the possibility and as regards the content of the measure envisaged, without the Commission’s approval of that measure making it in any way obligatory to use that possibility.

16. Thus, the aim and effect of Decision 2005/449 is not to compel the French Republic to grant the exemption proposed in its request for authorisation, but to authorise it to make such an exemption if it so wishes.

17. Furthermore, the fact that Decision 2005/449 does not specify the date from which it first applies, but merely sets the expiry date for the approved exemption as 31 December 2009, does not affect the scope and the effects of that decision.

Costs

Operative part

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

Commission Decision 2005/449/EC of 20 June 2005 concerning a request for exemption from the vehicle tax rules submitted by France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging of heavy goods vehicles for the use of certain infrastructures cannot be relied on by an individual against the French Republic, to which that decision was addressed, in order to obtain the benefit of the exemption approved by that decision upon its notification or publication.