OPINION OF ADVOCATE GENERAL

delivered on 31 March 1992 (*1)

Mr President,

Members of the Court,

1.In this case, the Tribunal Fiscal Aduaneiro do Porto (Customs Court, Oporto) asks the Court about the compatibility with Articles 12 and 95 of the EEC Treaty of the ‘Imposta Automóvel’ (motor-vehicle tax) introduced by Decree-Law No 152 of 10 May 1989.

According to Article 1 of the Decree-Law, that tax is a specific, one-off tax which varies with cubic capacity and is levied on light passenger vehicles — including multipurpose vehicles, racing cars and other vehicles primarily for the carriage of persons, excluding motor caravans — whether imported, new or secondhand, and assembled or manufactured in Portugal, which have been duly registered.

2.The facts as they emerge from the national court's order and the case-file are as follows. In November 1989, Automóveis Citroen SA, a company based in Lisbon, imported into Portugal a new Citroën of 1360 cc. The customs authorities regarded it as a light goods vehicle, since it was fitted with a fixed panel completely separating the driver's and passengers' compartment from the goods compartment.

On that ground, the import was not subjected to the motor-vehicle tax provided for by Decree-Law No 152/89. However, the importer was under a duty not to modify the characteristics which enabled the vehicle in question to be classified for tax purposes as a light goods vehicle, failing which it would be guilty of tax fraud and liable to a fine of between ESC 10000 and 10000000.

Subsequently, before 31 December 1989, the vehicle was sold to a Portuguese company which registered it as a light goods vehicle.

On 20 July 1990, the Polícia de Segurança Pública summoned Mr Lourenço Dias, an employee of that company, for tax fraud for driving the vehicle with the panel separating the driver's compartment from the goods compartment removed.

3.When ordered to pay a fine of ESC 200000, Mr Lourenço Dias brought an action in the Tribunal Fiscal Aduaneiro claiming that the fine should be quashed; the court in which the action was brought had doubts as to the compatibility of Decree-Law No 152/89 with Community law and referred the following eight questions to the Court of Justice for a preliminary ruling:

‘(1) Does the first paragraph of Article 95 of the EEC Treaty authorize Portugal to charge the motor-vehicle tax (“LA”) on secondhand vehicles imported from the Community, whilst exempting secondhand vehicles purchased in Portugal?

(2) Does the second paragraph of Article 95 of the EEC Treaty permit the application on the basis of a table of specific rates of the Portuguese motor-vehicle tax, which increases sharply as from a specified cylinder capacity in the case of vehicles which are neither assembled nor manufactured in Portugal in such a way as to affect exclusively those that are imported?

(3) Does Article 95 of the EEC Treaty allow Portugal to ensure or attempt to ensure that purchases of motor vehicles are confined to an economical model whose cylinder capacity is between 801 cc and 1500 cc by granting a reduction in the motor-vehicle tax in the case of vehicles having that cylinder capacity?

(4) Does the second paragraph of Article 95 of the EEC Treaty allow the motor-vehicle tax on imports to differ, as regards the methods of collection and periods for payment, from the tax payable on vehicles manufactured in Portugal?

(5) Does the second paragraph of Article 95 of the EEC Treaty allow Portugal to impose a restriction on the circulation of imported vehicles, without imposing such a restriction on vehicles assembled or manufactured in Portugal, taking into account the fact that imported vehicles may not circulate for longer than 48 hours after being brought into the country?

(6) Does the second paragraph of Article 95 of the EEC Treaty allow Portugal to prescribe a period for the submission to the competent customs office of the documents relating to the importation of a vehicle without laying down a period for the submission of the relevant customs documents in the case of vehicles assembled or manufactured in Portugal?

(7) Does Article 95 of the EEC Treaty permit Portugal to grant exemption from the motor-vehicle tax in respect of the importation of “vintage” cars provided certain conditions involving a subjective assessment have been met?

(8) If, on the eve of its accession to the European Economic Community, a Member State imposes an internal tax on specific consumer goods which is charged not only on products imported from the Community but also on products allegedly manufactured in that State, but which are in fact not manufactured in that State or, if they are, the quantities manufactured are so small as to have no impact on the market, does that constitute a covert and disguised infringement of Article 95 of the EEC Treaty? If so, does that tax constitute a charge having an effect equivalent to a customs duty, contrary to Article 12 of the EEC Treaty?’

4.I would preface my remarks by stating that the Portuguese Government, the Public Prosecutor attached to the Tribunal Fiscal Aduaneiro and, to a lesser extent, the Commission have expressed strong doubts about the relevance of the questions referred to the Court.

I must state that, with the exception of the eighth question, which in any event needs reformulating and with which I shall be dealing later, I consider those reservations to be completely justified. In view of the matters at issue, it is incomprehensible how the Court's replies to the questions as formulated could be useful to the national court for the purposes of giving judgment in the proceedings pending before it; in fact, the Court seems to be being asked to set out in completely general, abstract terms an assessment of the compatibility of the Portuguese legislation with Community law on the basis of domestic provisions which have nothing to do with the subject-matter of the proceedings and therefore go beyond the function conferred on the Court by Article 177 of the Treaty.

It appears from the wording of Article 177 and from that which the Court itself has held that the procedure provided for in Article 177 of the Treaty is an instrument of cooperation between the Court of Justice and the national courts whereby the former supplies the latter with information on the interpretation of Community law which is necessary in order to enable them to settle disputes which are brought before them; moreover, Article 177 does not confer on the Court the function of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States.

Moreover, by way of implementation of those principles the Court has, on the one hand, consistently refused to reply to questions put by national courts where it was plain that the provision of Community law in question could not be applied and, on the other hand, has very often reformulated questions inappropriately put by national courts.

The Court has in fact consistently held that, as regards the division of jurisdiction between the national courts and the Court of Justice under Article 177 of the Treaty it is for the national court, which is alone in having a direct knowledge of the facts of the case and of the arguments put forward by the parties, and which will have to give judgment in the case, to appreciate, with full knowledge of the matter before it, the relevance of the question of law raised by the dispute before it and appreciate the necessity for a preliminary ruling so as to enable it to give judgment. However, the Court has also held that it is for the Court, when faced with questions which are not framed in an appropriate manner or which go beyond its functions under Article 177, to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of Community law which require interpretation or whose validity is at issue, having regard to the subject-matter of the dispute.

5.Having said this, I shall briefly explain why I shall be proposing that the Court should refrain from answering almost all of the questions referred by the national court.

The first question is concerned with the possibly discriminatory nature of the Portuguese legislation as respects secondhand vehicles imported from other Member States. However, as has already been mentioned, the vehicle at issue in this case was imported new and hence Mr Lourenço Dias' position in the proceedings would be affected in no way by a finding that the legislation in question was discriminatory as far as secondhand vehicles were concerned.

The same is true of the second and third questions if account is taken of the fact that the vehicle in question is of 1360 cc, which clearly emerges from the national court's order, whereas the national court asks whether the more severe taxation imposed on vehicles of over 1750 cc is contrary to Community law, and emphasizes that the legislation in question favours models with an engine size in the range 801 cc to 1500 cc.

It seems all too clear to me that, even if the Court should consider that the legislation at issue is incompatible with Article 95 of the Treaty in so far as it penalizes imported vehicles with a cylinder capacity in excess of 1500 cc or 1750 cc, to give a ruling to that effect would have no effect on the charging of the tax on smaller-engined vehicles.

It follows, to my mind, that the Court should not answer those questions; at the most, for the sake of completeness, it might call to mind the criteria laid down in the case-law with regard to progressive tax systems while referring to the specific tax at issue in these proceedings, namely the tax charged on vehicles of 1360 cc.

The fourth, fifth and sixth questions are concerned with the methods for collecting the tax and the customs formalities laid down by Portuguese law.

However, in this connection, too, it can only be found that the vehicle in question was imported free of motor-vehicle tax, whilst the tax did not become payable until after the vehicle was modified and then on the same terms as a vehicle manufactured in Portugal; in this case, too, a finding that the methods of collecting the tax at the time of importation were discriminatory would manifesdy be of no use for the purposes of resolving the dispute before the Tribunal Fiscal Aduaneiro.

Similar considerations apply to the seventh question, by which the national court raises the question of the legality of the provisions of Decree-Law No 152/89 on ‘vintage’ cars.

6.In the light of those considerations and having regard to the information provided by the national court and the case-file, it seems to me that the only question requiring an answer from the Court is the eighth relating to the categorization of the tax as a charge having equivalent effect within the meaning of Articles 9 and 12 of the EEC Treaty or as internal taxation within the meaning of Article 95. (6)

In that regard, I would observe in the first place that, as the Court has consistently held, (7) the same tax cannot, under the system of the Treaty, be both a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12 and 13 of the Treaty and internal taxation within the meaning of Article 95, since Articles 9 and 12 prohibit, as between Member States, the imposition of customs duties on imports and exports or charges having equivalent effect, whilst Article 95 merely prohibits internal taxation which discriminates against products from other Member States.

More specifically, the essential feature of a charge having an effect equivalent to a customs duty which distinguishes it from an internal tax resides in the fact that the former is borne solely by an imported product as such whilst the latter is borne by imported and domestic products.

Lastly, it is also clear from the case-law of the Court that a charge which is borne by a product imported from another Member State, when there is no identical or similar domestic product, does not constitute a charge having equivalent effect but internal taxation within the meaning of Article 95 of the Treaty if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.

7.If the legislation at issue is considered in the light of the aforementioned principles, it must be held that the ‘Imposta Automóvel’ applies to vehicles assembled or manufactured in Portugal and to imported vehicles alike, whether they be new or secondhand, on the basis of bands of cylinder capacities for which figures per cubic centimetre are laid down, and hence, in principle, exhibits features such that it may be regarded, in the light of the Court's case-law, as internal taxation within the meaning of Article 95 of the Treaty.

Furthermore, contrary to the view which the national court seems to take, it appears from the information provided by the Portuguese car industry (which is not contested by the Commission) that Portuguese production of cars (manufactured or assembled) is by no means negligible.

8.On the basis of those findings, I therefore consider that the reply to the aforementioned question should be that a tax described as a motor-vehicle tax, which is charged both on imported and domestic products, does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 9 and 12 of the Treaty if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products; it is internal taxation within the meaning of Article 95 of the Treaty.

9.As far as Article 95 of the Treaty is concerned, it is sufficient to observe that, according to the Court's case-law, as Community law stands at present, the Member States are at liberty to subject products such as cars to a system of tax which increases progressively in amount according to an objective criterion (8) , such as fiscal horsepower or cylinder capacity; (9) furthermore, in the case at issue, as the national court itself seems to acknowledge and as is clear from the table annexed to Decree-Law.

10.In the light of the foregoing considerations, I propose that the Court should reply as follows to the national court's questions:

A tax described as a motor-vehicle tax, which is charged both on imported and domestic products, does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 9 and 12 of the Treaty if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.

*1 Original language: Italian.

1 Order in Case C-286/88 Falciola [1990] ECR I-191, paragraph 7.

2 Judgment in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18.

3 Case C-231/89 Gmurzynska-Bischer v Oberfinanzdirektion Köln [1990] ECR I4003, paragraph 23, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I3763, paragraph 40, Case C-132/81 Rijksdienst voor Werknemerspensioenen v Vlaeminck [1982] ECR 2953, paragraphs 13 and 14, and Case C-126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6.

4 Case C-53/79 O. N. P. T. S. v Damiani [1980] ECR 273, paragraph 5, Case C-83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 25, and Case C-117/77 Pierik [1978] ECR 825, paragraphs 6 and 7.

5 Case C-35/85 Tissier [1986] ECR 1207, paragraph 9, Case C-54/80 Wilner [1980] ECR 3673, paragraph 4, Case C-4/79 Providence Agricole de la Champagne [1980] ECR 2823, paragraph 15, and Pigs Marketing Board v Redmond, cited above, paragraph 26.

6 As it is worded, the eighth question seems to relate to a piece of legislation which is no longer in force. It refers in fact to a tax which was introduced in Portugal shortly before its accession to the Community, that is to say, Decree-Law No 679/73 of December 1973, as amended by Decree-Law No504/F/85 of December 1985. That law, however, was repealed by Decree-Law No 405/87 and, what is more, unlike Decree-Law No 152/89, which applies to Mr Lourenço Dias, it determines the amount of the tax on an ad valorem basis and not on the basis of the cylinder capacity of the vehicle.

7 Case C-193/85 Co-Frutta [1987] ECR2085, paragraphs 8 and 11, and Case C-78/76 Steinike [1977] ECR 595, paragraphs 27 and 28.

8 Case C-132/88 Commission v Greece [1990] ECRI1576, paragraph 17, and Case C-112/84 Humblot [1985] ECR 1367, paragraph 12. No 152/89, the tax charged on cars with a cylinder capacity of 1360 cc is not such as to have discriminatory or protectionist effects.

Between 1 501 and 1 750

390 ESC/cc

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Between 1 751 and 2 000

1 040 ESC/cc

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Over 2000

1 700 ESC/cc

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