Opinion of the Advocate-General

I – Introduction

II – Legal framework

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. After the French Republic had applied for the Commission’s agreement to the exemption of certain vehicles, the Commission adopted, on 20 June 2005, Decision 2005/449/EC, which was published in the Official Journal of the European Communities on 21 June 2005. The Decision states:

‘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:

3. Mobile motor compressor sets permanently mounted on road chassis;

4. Concrete mixers and pumps permanently mounted on road chassis (except drum vehicles for transporting concrete);

Article 2

This Decision is addressed to the French Republic.’

III – The facts, reference for a preliminary ruling and proceedings

7. By judgment of 4 December 2007 the Tribunal d’instance de Bordeaux, before which the dispute was brought, referred the following question to the Court of Justice for a preliminary ruling:

Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures provides for the possibility for a Member State to exempt certain categories of vehicle [from vehicle tax]. In this context, is the authorisation given to France by the Commission, in Decision 2005/449/EC, to exempt certain categories of vehicles directly applicable to individuals or, as it concerns an authorisation decision addressed to France, is a measure transposing it into national law necessary?

IV – Legal assessment

10. However, as the Court has already held, it would be incompatible with the binding effect attributed to decisions by Article 249 EC to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision. Accordingly, 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.

11. Unlike the governments which submitted observations and the Commission, Foselev takes the view that Decision 2005/449 imposes an obligation on the French Republic to introduce the exemption referred to therein.

12. The question whether the Decision gives rise to an unconditional and sufficiently clear and precise obligation to exempt the vehicles specified from the tax from a certain date must be resolved having regard to its wording and the basis on which that decision is authorised, namely Article 6(2)(b) of Directive 1999/62.

13. The wording of Decision 2005/449 does not establish any such obligation. On the contrary, Article 1 of the Decision confines itself to giving the Commission’s agreement to the measures requested by France. It is true that the provision allows the exemption only until 31 December 2009. It does not, however, set a date from which the exemption is to begin to apply. The French Republic was therefore free, even after the adoption of the agreement decision, to introduce the approved exemption at any point in time prior to 31 December 2009 through the enactment of the corresponding decree or possibly even to make no use whatsoever of the authorisation.

14. Article 6(2)(b) of Directive 1999/62 gives the Member States the option of exempting from tax the vehicles referred to in the provision or of making them subject to reduced rates of tax, as is unambiguously clear from the use of the words ‘may apply’. Accordingly, the Member States enjoy discretion as to whether to make use of the option for which the Directive provides.

15. The application of the corresponding national exemption rules is conditional on the Commission’s agreement. As the Commission correctly states in its written observations, its decision to agree to the tax exemption cannot transform the discretion which the Directive confers on the Member State into a duty to adopt the exemption.

16. It is true that, in the judgment in Hansa Fleisch, the Court stated that the mere fact that a decision allows the Member States to which it is addressed to derogate from clear and precise provisions of that decision does not in itself deprive those provisions of direct effect.

17. The legal situation in Hansa Fleisch is not, however, comparable to that in the present case. The decision applicable in Hansa Fleisch set a flat-rate fee for meat hygiene inspections but allowed the Member States to apply fees which derogated from that flat-rate and which corresponded to the actual costs of the inspections. Unlike Decision 2005/449, the decision in Hansa Fleisch therefore laid down an obligation to charge certain fees. That decision did, admittedly, permit the Member States to set fees which derogated from the flat-rate fees. However, that decision also laid down conditions relating to the operation of those national derogations. In that situation, the Court considered it necessary that the individual person paying the charge should be able to rely directly on the decision before a national court for verification of whether the derogation from the flat-rate fees satisfied the terms of the decision.

21. The notification of Decision 2005/449 to the French Republic (or possibly also its publication in the Official Journal of the European Communities) therefore has the effect that the agreement to the application of the exemption takes effect. If the French legislature had already enacted the decree before the agreement had been given and made application of the decree subject to the suspensive condition that the Commission should agree to the measure, Foselev could already have relied on the exemption from the time at which the Decision took effect. In that case, however, the exemption would not have resulted directly from the Decision but from the decree. However, the national legislature chose a different course of action, which was also open to it: it waited for the Commission’s agreement and enacted the decree which incorporated the exemption into national tax law only after that agreement had been given. The fact that more than one year elapsed between the two measures is irrelevant from the point of view of Community law.

V – Conclusion

22. In the light of the foregoing considerations, I propose that the Court should reply as follows to the question referred for a preliminary ruling by the Tribunal d’instance de Bordeaux:

Commission Decision 2005/449/EC of 20 June 2005, by which the Commission gave its agreement to the French Republic to exempt certain categories of vehicles from vehicle tax pursuant to Article 6(2)(b) of Directive 1999/62/EC, does not confer on individuals any direct entitlement to exemption. Rather, entitlement to the tax exemption arises only once the Member State concerned has adopted a measure transposing the exemption into national law.

(1) .

(2) – OJ 1999 L 187, p. 42.

(3) – 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 (OJ 2005 L 158, p. 23).

(4) – Case 9/70 Grad [1970] ECR 825, paragraph 5, and Case C‑156/91 Hansa Fleisch [1992] ECR I‑5567, paragraph 12. See in detail, also, as regards the direct effect of decisions, the Opinion of Advocate General Trstenjak in Case C‑80/06 Carp [2007] ECR I‑4473, point 55 et seq.).

(5) – Grad (cited in footnote 4), paragraph 9, and Hansa Fleisch (cited in footnote 4), paragraph 13.

(6) – Hansa Fleisch (cited in footnote 4), paragraph 15.

(7) – See Hansa Fleisch (cited in footnote 4), paragraph 15, which refers to Case 41/74 Van Duyn [1974] ECR 1337, paragraph 7.

(8) – See also, on the connection between notification and publication in the Official Journal, my Opinion of 13 December 2007 in Case C‑413/06 P Bertelsmann and Others v Impala, not yet published in the ECR, point 82.

(9) – If one were to go along with Foselev’s legal position, the French legislature would either have had to proceed in this way or give retroactive effect to the exemption, since otherwise there would still have been an infringement of the ‘obligation’ to introduce the exemption in the period between the notification of the decision and the enactment of the decree.