Important legal notice

61990C0052

European Court reports 1992 Page I-02187

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts of the case

3. The aims of the directive are outlined in the first two recitals of the preamble, as follows:

"Whereas the freedom of movement of Community residents within the Community is hampered by the taxation arrangements applied to the temporary importation of certain means of transport for private or business use;

Whereas the elimination of the obstacles resulting from these taxation arrangements is particularly necessary if an economic market having features similar to those of a domestic market is to be established;"

4. Accordingly, Articles 3 to 6 of the directive contain - as regards turnover tax, excise duties and any other consumption tax, together with the taxes listed in the Annex (in Denmark, the Vaegtafgift af motorkoeretoejer) - provisions on the tax-free importation of certain means of transport, in particular private vehicles. In addition, Articles 7, 8 and 9(3) lay down rules for determining "normal residence" and thus provide, in cases of uncertainty, the criterion for settling the question as to which of two potentially eligible countries is empowered to charge the tax and - conversely - which country is the country of "temporary importation".

"Normal residence, within the meaning of Article 7(1) of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another, corresponds to the permanent centre of interests of the person concerned, which must be determined with the aid of all the criteria set out in that provision and all the relevant facts. In that regard, the mere fact that a national of one Member State (B) moved to another Member State (A), in which he found a job and a dwelling, but as from a certain date and for more than one year spent practically every night and every weekend with a girl-friend in Member State B, whilst retaining his job and his dwelling in Member State A, is insufficient to support the conclusion that he transferred his normal residence to Member State B."

6. The Hoejesteret also asked about the interpretation and direct effect of Article 10(2) of the directive, worded as follows:

"Where the practical application of this Directive gives rise to difficulties, the competent authorities of the Member States concerned shall take the necessary decisions by mutual agreement, particularly in the light of the Conventions and Community Directives on mutual assistance."

7. The Court ruled as follows:

"Article 10(2) of Directive 83/182 does not require the Member States to cooperate in each individual case in which the application of that directive raises difficulties.

Article 10(2) of Directive 83/182 cannot be relied upon by individuals before a national court."

8. The decisions given in this case by the judicial instances of the defendant State, which had been delivered before the preliminary reference by the Hoejesteret, prompted Mr Ryborg to complain both to the European Parliament and to the Commission, as may be seen from a memorandum of the Commission of 11 July 1985 to the defendant Member State (Annex 2 to the application). In the memorandum the Commission pointed out that Mr Ryborg' s journeys in no way changed his legal position under the Community provisions on residence. The Commission cited Article 9(3) of the directive, which provides inter alia that:

"The Kingdom of Denmark is authorized to maintain the rules applying to that country in connection with normal residence according to which any person, including a student, in respect of the case referred to in Article 5(1)(b), is regarded as having his normal residence in Denmark if he lives there for a year or 365 days in a period of 24 months.

However, to avoid double taxation:

- where, as a result of the application of these rules, a person is considered to have two residences, the normal residence of that person is situated where his spouse and children live,

- in similar cases, the Kingdom of Denmark shall consult with the other Member States concerned to decide which of the two residences should be used for the purposes of taxation."

10. That memorandum marked the beginning of an exchange of correspondence which included the notices required under Article 169 of the EEC Treaty (the notice calling for observations, and the reasoned opinion) and culminated in the present application. In the notice requesting the observations of the Danish Government the Commission alludes to a second case (besides Ryborg), namely Hansen. The details of that case are later set out in the reasoned opinion: Mr Hansen, a German national, travelled to Denmark at weekends and occasionally during the week as well, in order to visit his son living there with his mother to whom Mr Hansen was not married; on those facts Mr Hansen was convicted (apparently for non-payment of tax).

12. In both memoranda the Commission also observed that the term "spouse" referred only to a person lawfully married to the person whose place of residence was in dispute.

13. From the account given above the Commission infers that Article 9(3) of the directive, which alone is applicable to Denmark, has been disregarded, whilst Article 7 has no bearing on Denmark.

14. Lastly, referring to the Abbink judgment, (4) the Commission relies in the reasoned opinion on the prohibition of double taxation when a vehicle is used temporarily in a Member State other than the State of registration.

15. In its reply to the reasoned opinion the Danish Government submits that the legislation applicable to Denmark as regards "normal residence" includes the general rule under Article 7 as well as Article 9(3). In addition to its submissions relating to the Commission' s assertions in the reasoned opinion, it makes an observation on the second indent of the second paragraph of Article 9(3) of the directive. It submits that Denmark had discussed matters with the Federal Republic of Germany in 1986 and 1987, under the consultation procedure set out in that provision, and that the result of those discussions was recorded in an exchange of letters. This exchange allegedly shows that the German authorities are in full agreement with the way in which the directive (and in particular Article 9 thereof) should be implemented in Danish territory.

16. The Commission' s application falls into two parts. In the first part ("Facts and Procedure") the aims and relevant provisions of the directive are first reviewed (heading A) and the correspondence prior to the action is summarized (B); lastly, "for the sake of completeness" reference is made to the Ryborg case, still pending at the time (C). The order for reference in that case reveals, according to the Commission, the importance of the taxation issues raised by the present case and the aim of the directive, namely freedom of movement for the inhabitants of the Community.

17. The second part of the application to the Court, which the Commission has entitled "Legal Position", begins with a section on the "Prevention of Double Taxation" in which the Commission, with reference to the second paragraph of Article 9(3) of the directive and to the judgments in Profant, (5) Ledoux (6) and Abbink, (7) analyses various aspects of existing safeguards against double taxation on the temporary importation of means of transport registered in other Member States. In the second section, on "Cooperation with the Tax Authorities of Other Member States", the Commission then gives its views on the interpretation of Article 10(2) and Article 9(3) (meaning the second indent of the second paragraph of that provision), concluding that the Member States are required by those provisions to cooperate in order to prevent the duplication of taxes on motor-driven vehicles in cases where two States claim to register one and the same vehicle. At the end of that section it is stated that, on the evidence of its replies (to the memorandum of 11 July 1985, to the notice requesting observations and to the reasoned opinion), Denmark never conceded that the Danish authorities are obliged, when settling complaints about the practical application of the directive, to consult the other Member State concerned about ways of avoiding double taxation.

18. In concluding its application the applicant claims that the Court should:

(i) declare that, by failing to apply the provisions of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another, and in particular Article 9(3) thereof, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty;

(ii) order the Kingdom of Denmark to pay the costs.

(i) dismiss the application as inadmissible;

(ii) in the alternative, dismiss the application as unfounded and set aside the accusations made against Denmark;

(iii) order the Commission to pay the costs.

B - Opinion

20. I - Before examining the admissibility of the application I wish to make it clear that, in its unambiguous wording, the applicant' s claim consists solely of accusations that the directive was infringed. Although in its application the Commission, citing the Abbink judgment, discusses the duty of Member States under Article 95 of the EEC Treaty - expounded in the Schul (8) judgment - to take into account the residual amount of the value-added tax paid in the Member State of exportation and still contained in the value of the goods at the time of importation, that is not the purpose of the application. Nor does the application cover, in connection with the taxation of motor vehicles registered in other Member States, those cases which the Commission considers to lie outside the scope of the directive because they occurred before it became effective. Although the Commission alludes to such cases under the heading "Prevention of Double Taxation", citing the Profant and Ledoux judgments, these are to be viewed merely as an illustration of the problems involved. In short, the appraisal of admissibility cannot extend to double-taxation problems, which are not the subject of the directive to which the application refers.

21. II - The first point to be established as part of the appraisal of admissibility within those limited terms of reference is whether the Commission complied with Article 38(1)(c) of the Rules of Procedure, under which an application to the Court must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based.

22. 1. I intend once again to take the form of order sought by the Commission as the starting point for inquiring whether the subject-matter of the proceedings and the pleas in law on which the application is based are set out clearly enough, or - conversely - whether the pleas in the application should have supplied further information in order to satisfy Article 38(1)(c).

23. (a) Turning first to the subject-matter of the proceedings, I note that, according to the form of order it has formulated, the Commission accuses the defendant Member State of failing to apply the provisions of Directive 82/182, and in particular Article 9(3) thereof. The rule of law whose infringement is alleged is thus identified merely by the citing of the directive in question, albeit with particular reference to one of its provisions. Examination of that directive will show that it covers a whole range of situations involving widely different importations and widely different problems in determining "normal residence". Furthermore, Article 10 imposes certain ancillary duties on Member States, quite apart from the obligation to implement the directive. It follows that the subject-matter of the proceedings was not adequately defined in the form of order sought by the applicant. The Commission should therefore have included in its application submissions indicating which of the rules of law created by the directive the defendant Member State had infringed. It is indispensable for an accurate delineation of the dispute that the application shall set out the complaints on which the Court is called upon to rule. (9)

24. (b) As far as the pleas in law are concerned, such delineation is even more necessary. In stating the form of order it seeks, the Commission totally omits - contrary, I would say, to its usual practice - even the merest outline of the actual facts (that is, the conduct) which allegedly infringed the Treaty. (10) The formulation of the order sought remains wholly abstract: Denmark is to be declared to have infringed the Treaty by not applying the directive.

25. 2. I now turn to consider what the Commission' s application contains in the way of essential particulars.

26. (a) As regards the allegation of infringement of rules of law, the application, apart from mentioning under the heading "Prevention of Double Taxation" a few rules which do not appear in the declaration which the Court is requested to make, (11) refers only to Articles 9(3) and 10(2) of the directive. That reference, however, does not meet the aforesaid requirements under Article 38(1)(c) of the Rules of Procedure.

27. (aa) In respect, first, of Article 9(3), the Commission appears to infer from it two different rules, whose infringement might be regarded as the subject of the application. In describing the pre-litigation procedure the Commission seems to suggest that in the cases before it Article 9(3) affords no basis for assuming that the motorists concerned had their normal residence in Denmark, (12) and that the Danish practice of refusing a tax exemption on the temporary importation of a motor vehicle contravenes the provisions of the directive. (13) At this point, therefore, the Commission appears to be arguing that Denmark has misconstrued the term "normal residence" as used in the directive (and was thus in breach of its duty to allow a tax exemption under the directive whenever, in the absence of a normal residence in Denmark, the importation is merely temporary).

28.In the last part of the application (headed "Cooperation with the Tax Authorities of the other Member States") the Commission draws from Article 9(3) - now read in conjunction with Article 10(2) - the following conclusion:

"The provisions of Article 9(3) and 10(2) of Council Directive 83/182 must therefore necessarily be construed as obliging Member States to cooperate in the avoidance of any duplication of taxes on motor vehicles in cases where two States demand the registration of the same vehicle."

29.Thus Article 9(3) is now regarded as the basis for a duty of cooperation on the part of the Member States.

30.Nowhere in the application is it clearly stated that Denmark has infringed either (or both) of the above rules of law. Only with reference to the duty of cooperation does the Commission make the abovementioned observation that Denmark "never conceded" the existence of that duty. However, that does not necessarily mean that the Commission considers that duty (or the rule under which it arises) to have been infringed.

31.Nor can the Commission' s intentions be deduced from the bald reference to those two arguments. The provision whose infringement is the subject of its accusation in both cases - Article 9(3) - is so constructed that the part from which the Commission infers the duty of cooperation - the second indent of the second paragraph - can operate only if the other provisions of that paragraph afford a basis for regarding Denmark as the country of "normal residence". In particular, the second paragraph can come into play only when the conditions under the first paragraph of Article 9(3) are satisfied, since it is only in those circumstances that Article 9 can lead to double taxation. The application does not disclose whether or not the Commission assumes that these conditions were met in the cases brought before it. In the pre-litigation procedure, summarized in the first part of the application, the Commission had argued at one point that Denmark applied the first paragraph even though the conditions governing its operation were not fulfilled, (14) and yet objected elsewhere that Denmark had misconstrued the term "spouse", (15) thereby appearing to suggest that it did consider the conditions of the first paragraph to have been fulfilled.

32.Consequently, apart from the uncertainty as to which of the provisions regarding "normal residence" has allegedly been contravened, the possibility cannot be ruled out that the Commission is complaining about a breach of legal provisions which it is impossible to contravene simultaneously in any given set of circumstances. (16)

33.In that connection I believe that two further comments are called for.

34.First, as far as the infringement of the duty of cooperation is concerned, it may be seen from the above quotation from the application that the Commission is concerned with the alleged duty of cooperation in individual cases, rather than with any obligation to establish universal procedures for cooperation. That reading of the application is unequivocally confirmed by the submissions made in the statement of reply.

35.Secondly, it is only in that reply that the Commission indicates that it no longer stands by the view expressed in the pre-litigation procedure, that Article 7 of the directive does not apply to Denmark. (17) The application to the Court, on the other hand, conveys the impression that it can only have been due to an infringement (misapplication) of Article 9(3) that Denmark found that the person concerned in the importation at issue here had his normal residence in Denmark (so that it could not grant a tax exemption).

36.It follows that in its application the Commission has not explicitly or conclusively stated which of the rules of law allegedly contained in Article 9(3) of the directive, and hence which obligations, the defendant Member State is supposed to have infringed.

37.(bb) Those considerations also demonstrate that the plea of infringement of the obligation under Article 10(2) of the directive is not sufficiently clear, because that provision is not discussed separately but is cited together with Article 9(3) as the basis for the obligation of Member States to cooperate.

38.(b) I am also of the opinion that the Commission has not based its application on adequate pleas in law for the purpose of Article 38(1)(c) of the Rules of Procedure. Although Article 38(1)(c) requires the Commission, as applicant, to present specific evidence in support of its accusation, that requirement was not met.

39.The only specific facts put forward in the application - as they had been throughout the pre-litigation procedure - are those of the Hansen and Ryborg cases. However, as is clear from paragraph I.B.5 of the application, those cases do not form the subject-matter of the proceedings. That paragraph states that the complaints cited by the Commission had merely served to demonstrate the extent to which the Danish practice of refusing tax exemption in the case of motor vehicles temporarily imported from another Member State infringed the directive. The Commission does not say wherein the contentious practice lies, otherwise than in those two cases.

40.The omission of specific evidence is not remedied by the Commission' s special reference, under heading I.C. of its application, to Case C-297/89, since the latter is mentioned merely "for the sake of completeness" and as a demonstration of the importance not only of the tax issues raised by the present case but also of the aims pursued by the directive.

41.The Commission' s counter-argument to the thesis that the evidence adduced is insufficient, namely that the application is to be read in conjunction with the documents produced in the pre-litigation procedure (the notice requesting observations and the reasoned opinion) does not hold water. In the first place, as the Court of Justice has held, in proceedings under Article 169 the elements of fact and law supporting the Commission' s complaints must be included - at least in summary form - in the application itself; a reference to the documents used in the pre-litigation procedure is insufficient. (18) At most, such references can be taken into account when they are designed to clarify the scope of the individual points of criticism raised in the application. (19) In the light of those principles it is still less admissible for the Commission - as here - not even to refer expressly to the documents of the pre-litigation procedure and thus leave the Court and the defendant Member State in doubt as to the real basis for the action. In the second place, this deficiency attaches not only to the application to the Court but also to the reasoned opinion - as I shall explain - with the result that even the inclusion of the documents of the pre-litigation procedure is to no avail.

42.III - Lastly, the application is inadmissible because the pre-litigation procedure was not correctly conducted.

44.According to established case-law it is an essential requirement of a proper pre-litigation procedure under Article 169 of the EEC Treaty that the Member State shall have the opportunity to submit its observations. Even if the Member State does not consider it necessary to avail itself of that opportunity, it constitutes an essential guarantee demanded by the Treaty. (20) The Court of Justice inferred from that principle (21) that the reasoned opinion

"must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty".

45.Those requirements are not satisfied if the Commission does not specify the acts or omissions allegedly constituting the infringement. The Member State is then expected to speculate as to the actual grounds for the Commission' s criticisms, so that its right to express its view is thereby nullified and the constitutional aims of the pre-litigation procedure are disregarded.

47.In keeping with the purpose of the pre-litigation procedure, as defined above, the Court has consistently assumed that the notice requesting observations is designed to delimit the subject-matter of the dispute. (23) The reasoned opinion and the application to the Court must be founded on the same submissions. (24) In the case of the accusation under discussion those conditions are not met. Nor has the Commission provided any other memorandum addressed to the Danish Government containing the necessary information, which might possibly have allowed an exception to be made to the above requirements for notices and reasoned opinions under Article 169. (25)

48.3. The defects of the pre-litigation procedure, found to exist on both of the above scores, are not cured by the fact of the Member State' s having stated, in its reply to the reasoned opinion, its position regarding the Ryborg and Hansen cases and on the duty of consultation under Article 9(3) (second indent of the second paragraph) of the directive. Such a reply serves neither to enlarge the scope of the pre-litigation procedure nor to eliminate its defects. (26)

C -Conclusion

49.It is clear from all those considerations that the present application must be regarded as inadmissible on a whole range of grounds. In view of the unclear definition of the subject-matter of the proceedings and of the applicant' s pleas I find it impracticable, and in any case - given the numerous serious defects involved - inappropriate to examine in the alternative the substance of the application. In my opinion the Court should:

(1) dismiss the application as inadmissible;

(2) order the Commission to pay the costs under Article 69 of the Rules of Procedure.

(*) Original language: German.

(1) - Judgment in Case C-297/89 Rigsadvokaten v Ryborg [1991] ECR I-1943.

(2) - Council Directive of 28 March 1983; OJ 1983 L 105, p. 59.

(3) - In its application to the Court the Commission alleged that, as it appears in the notice under Article 169, the phrase reads less than a year ... on account of a transcription error; it should properly read more than a year ... . Leaving aside the Commission' s inability to amend the content of the notice at the time of bringing the action, I find that the reformulated phrase does not make sense.

(4) - Judgment in Case 134/83, criminal proceedings against Abbink [1984] ECR 4097.

(5) - Judgment in Case 249/84 Ministère Public v Profant [1985] ECR 3237.

(6) - Judgment in Case 127/86 Ministère Public and Belgian Ministry of Finance v Ledoux [1988] ECR 3741.

(7) - Cited above.

(8) - Judgment in Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409; judgment in Case 47/84 Staatssecretaris van Financien v Schul [1985] ECR 491; see also the judgments in Case 39/85 Bergères-Becque Chef de Service Interrégional des Douanes [1986] ECR 259, Case 299/86, criminal proceedings against Drexl [1988] ECR 1213, Case 120/88 Commission v Italy [1991] ECR I-621, Case 119/89 Commission v Spain, and Case 159/89 Commission v Greece.

(9) - Judgment in Case C-347/88 Commission v Greece [1990] ECR I-4747, at paragraph 29.

(10) - See judgment cited in the previous footnote, at paragraph 28.

(11) - See above, at paragraph 20.

(12) - See paragraph I.B.3 of the application (p. 7).

(13) - See paragraph I.B.5 of the application (p. 8).

(14) - See paragraph 11 above.

(15) - See paragraph 12 above.

(16) - The Commission' s application firmly precludes the explanation that it wished to present two fundamentally dissimilar situations as the subject of the proceedings. Although it refers to actual events (the Ryborg and Hansen cases), there is no evidence that the provisions or obligations infringed in the first case are different from those infringed in the second; see also below, paragraph 38 et seq.

(17) - See paragraph 13 above.

(18) - Judgment in Case C-347/88 Commission v Greece [1990] ECR I-4747, at paragraph 16 et seq.

(19) - Opinion of Mr Advocate General Tesauro in Case C-347/88 [1990] ECR I-4767, at the end of paragraph 8; Opinion of Mr Advocate General Darmon in Case C-43/90 Commission v Germany [1992] ECR I-1909, at paragraph 4.

(20) - See for example the judgment in Case 31/69 Commission v Italy [1970] ECR 25, at paragraph 13.

(21) - Judgment in Case 274/83 Commission v Italy [1985] ECR 1077, at paragraph 21; judgment in Case 347/88 Commission v Greece [1990] ECR I-4747 at paragraph 24; see also the earlier judgment in Case 325/82 Commission v Germany [1984] ECR 777 at paragraph 8.

(22) - In the context of the less rigorous requirements for the notice under Article 169, see for example the judgment in Case C-274/83 Commission v Italy [1985] ECR 1077.

(23) - Judgment in Case 211/81 Commission v Denmark [1982] ECR 4547, at paragraph 8; judgment in Case 229/87 Commission v Greece [1988] ECR 6347, at paragraph 12.

(24) - Judgment in Case 211/81, cited above (previous footnote), at paragraph 14; judgment in Case 298/86 Commission v Belgium [1988] ECR 4343, at paragraph 10.

(25) - See the judgment in Case 211/81, cited above, at paragraph 11.

(26) - See judgment in Case 51/83 Commission v Italy [1984] ECR 2793, at paragraph 6 et seq.; judgment in Case 217/88 Commission v Germany [1990] ECR I-2879, at paragraph 11, read in conjunction with section I.3 of the Report for the Hearing (p. 2884, right-hand column, second paragraph).