31996Y0513(01)

Commission interpretative communication on procedures for the type-approval and registration of vehicles previously registered in another Member State (96/C 143/04)

I. INTRODUCTION

This interpretative Communication sets out the principles of Community law governing the conditions for the type-approval and registration in the Member States of vehicles previously registered in other Member States and describes the rights which individuals derive from the direct applicability of Community law and the procedural guarantees to which they are entitled in such a case. This Communication updates Commission Communication 88/C 281/08 (1) which it replaces in its entirety.

Communication 88/C 281/08 has proved to be most persuasive and helpful, resulting in the settlement of many disputes. By adopting and publishing its interpretation of the principles of Community law applicable in this field, the Commission is providing economic operators, authorities in the Member States and Community citizens in general, who as consumers have an especial interest in this Communication, with a clear indication of its position in defending the Community interest in this matter, in accordance with its powers and duties under Article 155 of the Treaty.

Over the past few years the Commission has received numerous complaints about national procedures for the type-approval and registration of vehicles that question the compatibility of such procedures with Community law, and in particular with Articles 30 and 36 of the Treaty concerning the free movement of goods.

The experience acquired by the Commission in approaching the Member States in order to improve these procedures has enabled it to establish a number of general principles for assessing the compatibility of the abovementioned national procedures with Articles 30 and 36 of the Treaty.

The Commission is guided by, and secures the application of, the judgments of the Court of Justice of the European Communities, which is required to ensure that in the interpretation and application of the Treaty the law is observed (Article 164 of the Treaty). The Court of Justice has considered various aspects of these procedures in its judgments in a number of cases, including the following: its Judgment of 12 June 1986 in Case No 50/85, Schloh v. Auto Contrôle Technique (2); its Judgment of 11 June 1987 in Case No 406/85, Procureur de la République v. Gofette and Gilliard (3); its Judgment of 17 June 1987 in Case No 154/85, Commission v. Italy (4). These judgments largely confirmed the principles that the Commission had itself established while adding important details regarding certain other elements in this context.

The Commission is therefore able to restate and draw together in this Communication the principles governing the application of Articles 30 and 36 of the Treaty and of Community secondary legislation to procedures introduced by the Member States for the type-approval and registration of vehicles from other Member States.

The objective of this interpretative Communication is thus to clarify Community law in an area of practical importance to the citizens of the Union. It reflects an everyday situation in the operation of the internal market within the new context of the European Union as established by the Treaty of Maastricht.

Since 1 January 1993 the internal market has formed an area without internal frontiers, in which goods, persons, services, and capital can move freely. Since that date, the Member States have applied Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (5), as amended by Directive 92/53/EEC (6), and must apply the laws, regulations, and administrative provisions necessary to comply with the Directive. Directive 92/53/EEC entails the gradual replacement of the national schemes for the type-approval of the Member States by a Community type-approval procedure.

In accordance with the conditions and time-table fixed by the Directive, when EC type-approval has been obtained in one Member State, it is possible, subject to any tax considerations, to register, sell or put into service new vehicles with EC type-approval in any other Member State on presentation of a valid certificate of conformity.

II. GENERAL

1. Categories of vehicles covered

The objective of this Communication is to make it easier for citizens of the Union to transfer and register private vehicles within the Union. Consequently this Communication relates first and foremost to category M1 vehicles, hereinafter referred to as 'private vehicles`, i.e. motor vehicles for the transport of up to eight persons including the driver (7).

In practice, every year thousands of citizens of the Union apply to the Member State in which they live to register a private vehicle previously registered in another Member State.

It may be, for example:

- a vehicle owned by the applicant which he brings with him on transferring his place of residence,

- a second-hand vehicle acquired in another Member State either by a dealer or by the applicant himself,

- a vehicle bought new on the market which the applicant has acquired either himself or via a third party, usually to take advantage of lower pre-tax purchase prices in that State, the vehicle being temporarily registered there in order to deliver it by road.

Although the abovementioned situations are very different in many aspects, in particular from the point of view of taxation, they raise similar problems as regards the conditions governing type-approval and registration in the Member State of destination.

The EC type-approval system has been operational since 1 January 1993 on a voluntary basis but became obligatory from 1 January 1996 for new makes of passenger cars.

The principles contained in this Communication will also apply to heavy vehicles (lorries, motorbuses and motor coaches), motor vehicles in categories other than M1 and two or three-wheel motor vehicles (mopeds, motorcycles, tricycles and also quadricycles). However, private citizens will be involved more rarely in these cases. It will also be necessary to take into account the characteristics and particular use of some of these vehicles in applying the principles set out in this Communication, in accordance with the principle of proportionality.

With regard to heavy vehicles (lorries, motobuses and motor coaches) and those in categories other than M1, national type-approval will remain, pending the adoption of the final specific directives and the mandatory application of EC type-approval.

With regard to two- or three-wheel motor vehicles (mopeds, motorcycles, tricycles, and also quadricycles covered by Council Directive 92/61/EEC (8), national approvals will remain valid but are restricted to the systems and components which have not been harmonized by specific directives. In this field, the specific directives which have been adopted are already mandatory for all Member States.

Therefore, when EC type-approval is in place for heavy vehicles and two and three-wheel vehicles, the legal principles described above, based on EC type-approval as already in existence for private vehicles, will also apply. Until then the guidelines set out in this Communication for national type-approval will apply both to private vehicles with national type-approval and to heavy vehicles and two or three-wheel vehicles.

2. The distinction between new and used vehicles

The distinction between vehicles previously registered in another Member State and those which have not been registered does not necessarily coincide with the difference between new and used vehicles. The situation differs depending on whether it is viewed from an administrative, commercial or tax standpoint. In any case, this Communication covers vehicles previously registered in another Member State regardless of whether they are new or used.

Furthermore, it is illogical to submit a new vehicle to more stringent controls, for example safety checks, than those undergone by the same model when it is used; if such controls are required for road-safety reasons, then a new car should in principle be safer.

3. The definition of registration

The Commission further considers that, for the purposes of this Communication, registered vehicles are those which bear a permanent number-plate issued by the competent authorities of a Member State and those bearing a provisional number-plate ('transit` or 'customs` plates) which, although issued to meet a particular situation, proves that tax and roadworthiness requirements have been fulfilled. Further, the period during which a vehicle has been registered in one Member State before its transfer to another has no legal significance for the classification of the vehicle as registered nor, accordingly, for the purposes of this Communication, apart from the tax aspects set out in section V.

4. Intermediaries

This interpretative Communication covers State measures, widely interpreted, including certain activities on the part of manufacturers or their representatives when certain public-law functions devolve upon them by delegation. On the other hand, it does not apply to purely private-law measures on the part of economic operators, which can be viewed in terms of Community competition law (Articles 85 et seq., of the EC Treaty and corresponding secondary legislation).

Nevertheless, it is useful to clarify the procedures under Community law as it stands at present whereby private citizens can acquire a new vehicle in a Member State other than their country of residence. The Commission is often called upon to deal with issues in this field. Three possibilities are open to private citizens:

(a) to acquire the vehicle personally from a distributor in another Member State;

(b) to acquire the vehicle through an intermediary. It should be pointed out here that the provisions governing the activities of motor-vehicle intermediaries (which must be the subject of a prior written authority) are clarified in Commission Communication 91/C 329/06 (9). The present Communication does not affect the application of the Communication concerning such intermediaries;

(c) to acquire the vehicle through a transaction involving distributors for the same company in different Member States who belong to the same distribution network (for example, through a dealer in the Member State where the purchaser resides, who orders the vehicle from a distributor for the same company in another Member State) (10).

The Commission further points out that, with the entry into force on 1 January 1994 of the Agreement on the European Economic Area, the principles enshrined in this Communication on the basis of Articles 30 and 36 of the EC Treaty must be applied to products originating in the EFTA states which are Contracting Parties to the Agreement.

These provisions of the EC Treaty form part of existing Community law and are reproduced word for word in Articles 11 and 13 of the Agreement on the European Economic Area; without prejudice to the future development of case-law, these Articles must, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of the Agreement.

However, although the foregoing clearly does not affect the rules on the free movement of goods applicable between the Member States of the Community, the Agreement on the European Economic Area limits the application of the principles mentioned above to products originating in the Contracting Parties. Consequently, the extension of the arrangements made for products originating in the Community must be limited to products originating in the EFTA States which are Contracting Parties to the Agreement.

With regard to the application of secondary legislation cited in this Communication to EFTA States which are Contracting Parties to the Agreement, reference should be made to the terms of the Agreement, and in particular to the special rules on motor vehicles included in Annex II. Moreover, the Contracting Parties have expressly taken note of the Commission Communication 88/C 281/08, which this Communication updates.

III. COMPATIBILITY WITH COMMUNITY LAW OF PROCEDURES FOR THE TYPE-APPROVAL AND REGISTRATION OF VEHICLES PREVIOUSLY REGISTERED IN OTHER MEMBER STATES

The type-approval and registration in a Member State of a vehicle previously registered in another Member State raises two problems which must be distinguished:

- the first concerns the examination of the technical characteristics of the vehicle and the relevant documents (see 1 below);

- the second concerns the inspection of the physical condition of the vehicle (see 2 below).

Certain procedural guarantees also have to be provided for the person applying to register the vehicle if registration is refused (see 3 below).

1. Examination of the technical characteristics of the vehicle and the relevant documents (type-approval)

Motor vehicles must generally satisfy certain technical requirements that are laid down in the form of mandatory provisions. As has been mentioned above, these provisions were harmonized at Community level with effect from 1 January 1993 in respect of private vehicles. For other categories of vehicles, the technical requirements have been largely, though not completely, harmonized. Consequently the two cases set out below arise.

1.1. National type-approval

From 1 January 1996, type-approval for new makes of private cars will be based on EC type-approval.

For other types of vehicles, national type-approval will continue in the absence of a comprehensive system of EC type-approval. This, however, includes elements of EC type-approval (partial EC type-approval), some of which are mandatory, and others of which are optional, according to the manufacturer's choice.

Where national type-approval has been granted for models, individuals often encounter a variety of problems.

The basic rule is that, if the application for registration in a Member State is made at a time when the vehicle is already registered in another Member State, the technical characteristics of that vehicle will in principle already have been checked in the other Member State. When this check is carried out as part of national type-approval, it is intended to ensure compliance with the technical requirements applicable, either harmonized or national, as the case may be. The outcome of this check is set out in the type-conformity certificate issued by the manufacturer.

However, as the Court stated in its Judgment in Case No 406/85, Gofette and Gilliard, the introduction by a Member State of a procedure for the type-approval of vehicles imported (11) from another Member State where they have already undergone type-approval is not in itself incompatible with Articles 30 and 36 of the EC Treaty, provided that certain conditions are met. Although Member States are entitled, where national type-approval has been granted, to invoke Article 36 in order to adopt provisions and provide for checks to guarantee road safety, they may do so only in compliance with the conditions laid down by that Article, as interpreted by the Court.

In its Judgment in Gofette and Gilliard, and in its other Judgments cited in this Communication, the Court of Justice did not rule specifically on the difficulties involved in the transfer of vehicles between Member States, but only on the derogations contained in Article 36 of the EC Treaty, in particular those concerning the protection of health and life of humans, which may justify an examination of vehicles' technical characteristics or physical condition. However, in the Commission's view, which is in accordance with the case-law of the Court in other areas, the same standpoint can be adopted when Member States justify certain measures by other objectives which are legitimate in Community law. These grounds, which are not present in Article 36 of the EC Treaty, were established by the Court as overriding requirements which can justify measures capable in principle of hindering intra-Community trade. These measures must be proportionate to their purpose and must never discriminate against vehicles originating in other Member States.

Nonetheless, two aspects of the procedures for the type-approval and registration of vehicles originating in other Member States deserve special attention:

- the first is a matter of substance since it relates to what technical requirements the vehicle is required to satisfy,

- the second is a matter of proof that concerns the documents relating to the technical characteristics of the vehicle.

1.1.1. Technical requirements to be satisfied by a vehicle previously registered in another Member State

Member States may not make the registration of a vehicle from another Member State, where it has been previously type-approved and registered, conditional upon its conformity with an approved type or upon its strict compliance with requirements in force on their territory. It should be borne in mind that this point only arises in the case of national type-approval since, where EC type-approval has been obtained, by definition it is valid for that model in all Member States.

As the Court stated in its judgment of 28 January 1986 in Case No 188/84, Commission v. France (12), it would be contrary to the principle of proportionality for national regulations to require that imported products literally and exactly meet the technical requirements or characteristics laid down for products manufactured in the Member State in question if the imported products guarantee the same level of safety for users. The Court has consistently held that it is for the national authorities that invoke Article 36 of the Treaty to prove, in each specific case, that a measure that hinders intra-Community trade is necessary for the effective protection of an interest referred to by that provision and, in particular, that importation of the product concerned would constitute a serious risk to human health and life.

It cannot reasonably be argued that the mere fact that a vehicle has been type-approved according to the rules of another Member State and possibly, but not necessarily, has certain technical characteristics that differ from those laid down in the law of the Member State of destination or those of the equivalent type approved in that State constitutes a serious risk to human health and life or to the environment.

It follows that Member States may not object to the type-approval and registration of a vehicle previously type-approved and registered in another Member State, for reasons relating to the technical characteristics of that vehicle, unless the reasons specified in Article 36 or imperative considerations are involved, in which case they must state them in detail and substantiate them. The fact that a vehicle type-approved and registered in another Member State does not correspond to a type approved in the Member State of destination or that its technical characteristics differ from those laid down in the law of that State does not of itself constitute adequate grounds for refusing the type-approval and registration of the vehicle concerned.

1.1.2. Documents relating to the technical characteristics of the vehicle

In its Judgment in Gofette and Gilliard, the Court of Justice ruled that, at the present stage in the development of Community law, 'Articles 30 and 36 of the EEC Treaty are to be interpreted as meaning that an approval procedure laid down in a Member State for vehicles imported from another Member State and already approved for use in that State only complies with the Treaty if:

- the testing procedure does not entail unreasonable costs or delays and the public authorities ensure that those conditions are fully met where the manufacturer or his authorized agent has the task of carrying out the necessary checks,

- the importer may, as an alternative to the checking procedure, produce documents issued in the exporting Member State where those documents provide the necessary information based on tests already carried out.`

(a) Alternative

As regards the documentation on the technical characteristics of the vehicle that the applicant is required to produce in support of his application, it follows that Member States must offer the alternative between:

- the production of a document issued by the manufacturer or his authorized agent in the Member State of destination which describes the vehicle in terms of the identical type or, failing that, the most similar type that has been approved in that State,

- the production of documents (certificate of conformity) issued in the Member State of origin, provided that they contain the information required.

Certain other conditions, as described below, also have to be satisfied in both cases.

(b) Action by the manufacturer or his authorized agent

If the Member States delegate certain public-law functions, such as the issue of documents needed for the type-approval and registration of a vehicle, originating in another Member State, to manufacturers or their authorized agents, they are required to ensure that those persons carry out those functions in a manner compatible with the requirements of the free movement of goods within the Union. In particular, manufacturers or their authorized agents are required to issue the documents requested of them:

- without requiring the presentation of the vehicle, since their action concerns the technical characteristics of the vehicle at the time it is first put on the road and not its physical condition at the time of transfer,

- without requiring the presentation of commercial documents relating to the vehicle (sales invoice, tax receipt, etc.,) except where these are absolutely necessary in order to establish the exact make of the vehicle (where the documents from the Member State of origin are insufficient for this purpose),

- at reasonable cost and within a reasonable period of time (as a guide, the cost should not exceed ECU 100 and the time should not be more than three weeks).

If the documents prepared in the Member State of origin contain the information required for registration in the Member State of destination, the latter is required to accept these documents in the form and manner in which they are legally valid in the Member State in which they were prepared. In particular, Member States are not empowered to make the acceptance of documents issued in other Member States conditional upon their being validated or authenticated or on their compliance with a model laid down by the importing Member State (see in this context the Judgment of the Court in Commission v. Italy).

Where there is a suspicion of theft, a Member State may take necessary measures which comply with the rules of the Treaty.

1.2. EC type-approval

The cornerstone of harmonization in this sector is Directive 70/156/EEC, as amended by Directive 92/53/EEC, which provides for a Community type-approval procedure known as 'EC type-approval` available at the request of the manufacturer. As mentioned above, EC type-approval became obligatory for M1 vehicles from 1 January 1996.

The EC type-approval set out in Directive 70/156/EEC marks the end of the procedure whereby a Member State states that a type of vehicle conforms to the technical requirements of the specific Community directives which form an integral part of this procedure.

In this way vehicles meeting the harmonized technical requirements may be freely placed on the market in the Community with the certificate of conformity issued by manufacturers who have requested EC type-approval.

Under the system set up by Directive 92/53/EEC, a Member State may not refuse to register or permit the sale or entry into service of new vehicles on grounds relating to their design and operation if they have been granted EC type-approval and are accompanied by a valid certificate of conformity. Refusal or prohibition constitutes a breach of the Directive.

With regard to used vehicles with a certificate of conformity corresponding to a vehicle type for which EC type-approval has been granted, the carrying out of checks by the authorities of the Member State of destination on registration of the vehicle is no longer justified since the vehicle is registered on the basis of EC type-approval, which is valid in all Member States. On the other hand, roadworthiness tests on the physical condition of the vehicle are permissible provided that they are non-discriminatory, that is, they are based on the same conditions and procedures as are applied to vehicles previously registered in the Member State of destination (see section 2 below).

Article 8 of Directive 70/156/EEC establishes certain derogations from the Community type-approval procedure for various categories of vehicles, for example, vehicles produced in small series or end-of-series vehicles. For both cases, it is necessary to specify the requirements for the application of those derogations in order to ensure that the Directive is properly applied.

First, under Article 8 (2) of Directive 70/156/EEC, a manufacturer may request each Member State to grant exemption from one or more Directives.

- in the case of vehicles produced in small series, Member States may, after being informed by the Member State granting the national exemptions from type-approval, accept or refuse type-approval for such vehicles. A Member State, in accepting, may make acceptance conditional on the alteration of certain provisions. Nevertheless, modifications demanded by the Member State of destination must be based on roadworthiness requirements. Moreover, the Member State must establish that these amendments are relevant and they must be proportionate to the objective in view,

- with regard to end-of-series vehicles, there is an identical procedure. The Member State of destination, acting on an application from the manufacturer and after being informed by the Member State which granted the derogation, may grant or refuse registration and entry into service of such vehicles. In this case, acceptance cannot be made subject to particular conditions.

2. Inspection of the physical condition of the vehicle (roadworthiness tests)

Council Directive 77/143/EEC (13), as amended by, inter alia, Council Directives 88/449/EEC (14) and 91/328/EEC (15), renders it obligatory in all Member States to carry out periodic roadworthiness tests for passenger cars. For certain specified vehicles, this obligation applies from 1 January 1995, or from 1 January 1998 in Member States where there was no comparable system of periodic roadworthiness tests at the time the Directives were adopted. Consequently, in the present state of Community law, national roadworthiness tests are or will be carried out on the basis of certain harmonized minimum requirements (relating to frequency of tests, list of points to be examined, etc.). Even if these Directives are not wholly applicable to the particular cases referred to in this Communication, the provisions can be used as an interpretative source in verifying whether a measure is compatible with Community law, for example with regard to the matters already covered by specific directives (braking system, exhaust emissions and effectiveness of brakes).

So long as roadworthiness tests on vehicles are not completely harmonized at Community level, the two cases set out below can occur in connection with the compatibility of such tests with Community law.

2.1. Vehicles with national type-approval

As the Court held in its Judgment in Schloh v. Auto Contrôle Technique, roadworthiness testing is a formality which makes the registration of imported vehicles more difficult and more expensive and consequently amounts to a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty. Nevertheless, Article 36 may justify such a formality on grounds of the protection of human health and life, provided that it is established, on the one hand that the test at issue is necessary for the attainment of that objective and on the other that it does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

As far as the first condition is concerned, the Court indicated that roadworthiness testing may be regarded as necessary for the protection of human health and life where the vehicle in question has already been put on the road, i.e. if it has previously been registered in the Member State of origin, even if only provisionally. In such cases, roadworthiness testing performs a useful function inasmuch as it makes it possible to check that the vehicle has not been damaged or modified and that it is in a good state of repair.

As far as the second condition is concerned, the Court stressed that the roadworthiness testing of imported vehicles cannot be justified under Article 36 if it is established that such testing is not required in the case of vehicles of local origin presented for registration in the same circumstances. If that were the case, it would become apparent that the measure in question was not in fact inspired by a concern for the protection of human health and life but in reality constituted a means of arbitrary discrimination in trade between Member States.

It follows that, in the present state of Community law, Member States may not inspect the physical state of a vehicle previously registered in another Member State for the purpose of registering it unless such an inspection is also called for, in the same circumstances, where the registration of a vehicle previously registered on its territory is changed.

The Commission further considers that, if a vehicle has failed a roadworthiness test in another Member State or a third country, there may be a presumption that the vehicle is not roadworthy, which would justify requiring a further roadworthiness test.

2.2. Vehicles with EC type-approval

- The requirement of a roadworthiness test for new vehicles with EC type-approval for which a valid certificate of conformity has been produced constitutes a breach of the directive establishing EC type-approval.

- The requirement, for the registration of a used vehicle with EC type-approval acquired in another Member State, of a roadworthiness test in the Member State of destination is compatible with Community law only if such a test is also carried out, in the same circumstances where the registration of vehicles previously registered on the territory of the Member State of destination is changed. For example, there is a breach of Article 30 if the Member State of destination makes registration of used vehicles with EC type-approval acquired in another Member State conditional on undergoing a roadworthiness test while vehicles in the same situation but acquired and registered in the Member State of destination must undergo the roadworthiness test only after the expiry of a certain period. The principles established by the Court in its interpretation of Articles 30 and 36 of the Treaty which are set out above in Section 2.1 are also applicable to this case.

3. Procedural guarantees for applicants for registration

The Commission has very often found that, whatever the grounds for refusing to register a vehicle previously registered in another Member State, these grounds are not always made clear to the person applying for registration. For the applicant, refusal to disclose the precise reasons for refusal of registration, effectively preventing him from seeking a remedy, constitutes at least as great a difficulty as the refusal of registration itself.

In this respect, the Commission would draw attention to Article 12 of Directive 70/156/EEC, as amended by Directive 92/53/EEC, which provides that in respect of new vehicles 'all decisions taken pursuant to the provisions adopted in implementation of this Directive and refusing or withdrawing type-approval, or refusing registration or prohibiting sale, shall state in detail the reasons on which they are based. Any decisions shall be notified to the party concerned, who shall, at the same time, be informed of the remedies available to him under the laws in force in the Member States and of the time limits allowed for the exercise of such remedies`.

The Commission therefore considers that the procedural guarantees provided for in that Article should be extended to any person applying for registration, whatever the legal grounds for the registration.

IV. EXAMPLES

A number of examples are provided below in order to provide a detailed illustration of how the above principles are to be applied in practice.

1. Acquisition of vehicles with EC type-approval

1.1. Mr Pérez, resident in Member State A, buys a new vehicle in Member State B. Since EC type-approval has been granted for this type of vehicle, it can be registered in Member State A without any formalities concerning its technical characteristics. If the vehicle is not brought into Member State A by a separate means of transport, such as a train or lorry, it must carry provisional (i.e.: 'transit`) plates. The principles in this example also apply, mutatis mutandis, if the vehicle is bought for Mr Pérez by an intermediary.

1.2. If Ms Dupont, resident in Member State A, buys in Member State B a used vehicle with a certificate of conformity to the effect that it corresponds to a type of vehicle for which EEC type-approval has been granted, Member State A cannot require a roadworthiness test of the vehicle's physical condition unless such a check is also required in comparable circumstances (age of vehicle, new registration, etc.) in the case of transactions taking place within Member State A.

2. Acquisition of vehicles with national type-approval

2.1. Mr Smith, resident in Member State A, goes to Member State B in order to buy a new vehicle corresponding to a type for which national type-approval has been obtained in his country of residence or orders such a vehicle through a dealer established in B. The vehicle is thus supplied to him together with a certificate of conformity with a type that has been approved in Member State A. In this instance the authorities in Member State B are required to register that vehicle under the same conditions as if the vehicle had been bought from a dealer established in Member State A.

2.2. Mr Maier, resident in Member State A, buys, in Member State B, a new vehicle intended for the market in Member State B and corresponding to a type which has received national type-approval in B. The vehicle is registered in B, on a temporary basis ('transit` plate), and transferred to A. Mr Maier contacts the official representative of the manufacturer of the vehicle for Member State A and requests a certificate of conformity or equivalent document. The manufacturer's representative confirms that the vehicle is similar to a type that has been approved in A, except for a few details, for example, the vehicle has three doors instead of five. The manufacturer's representative thus issues a document certifying that the vehicle cooresponds to the type that has been approved in A, apart from the small number of points that he mentions. Mr Maier submits this document together with his application for registration. Since the points mentioned by the manufacturer's representative do not raise any safety problem, the vehicle must be registered forthwith.

2.3. If in the above two examples the vehicle was not new but used, Member State A would be entitled to require it to undergo a roadworthiness test of its physical condition when it was registered, provided that such a test did not constitute discrimination in relation to vehicles in the same situation in Member State A.

V. VARIOUS MATTERS RELATING TO TRANSFERS OF VEHICLES BETWEEN MEMBER STATES

It may be helpful to supplement this Communication with information on questions which, although without a legal link to its subject-matter, inevitably confront private individuals acquiring a vehicle in another Member State.

1. In what Member State must a vehicle be registered?

The taxation systems applicable to vehicles still vary cosiderably from one Member State to another. An individual therefore cannot register his vehicle in the Member State of his choice as this would mean that all vehicles would be registered in the Member State with the lowest tax rates.

In principle, everyone has to register his vehicle in the Member State in which he has his normal residence. If the vehicle was acquired under the general conditions of taxation in force on the domestic market of that Member State, it may be temporarily used in other Member States exempt of the taxes applied by those States under the conditions laid down in Council Directive 83/182/EEC (16).

That Directive defines 'normal residence` as 'the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living`. Additional, more specific rules are laid down for persons whose occupational ties are with a place other than that of their personal ties.

A Member State which grants the temporary duty-free use of a vehicle obviously cannot demand that the vehicle be registered on its territory.

2. What taxes are payable on permanent transfer of a vehicle from one Member State to another?

The answer to this question obviously depends on the circumstances in which the vehicle is transferred. A distinction must be drawn between VAT and other taxes which may be payable.

2.1. VAT

Since 1 January 1993, the Member State of destination has been unable to impose VAT on the personal property accompanying persons changing their normal place of residence from another Member State. This also holds good for vehicles.

With regard to the acquisition of a motor vehicle in one Member State with a view to registering and using it in another, the position is set out below: (see Directive 91/680/EEC (17)).

VAT is payable on new motor vehicles in the Member State of destination, i.e. the State where the vehicle will be used. New motor vehicles bought in a Member State other than the State of destination can therefore be acquired in the former State without payment of VAT.

Used motor vehicles are subject to VAT in the Member State in which they are bought.

For the purposes of the application of the abovementioned tax principles:

- 'motor vehicles` means motorized land vehicles the capacity of which exceeds 48 cubic centimetres or the power of which exceeds 7,2 kilowatts, intended for the transport of persons or goods,

- 'new vehicles` means vehicles which were supplied less than six months after the date of first entry into service or those which have travelled less than 6 000 kilometres (see Council Directive 95/4/EC (18)).

2.2. Taxes other than VAT

Member States may also impose taxes other than VAT on vehicles, always provided that those taxes do not give rise to border-crossing formalities in trade between Member States (see Article 3 (3) of Council Directive 92/12/EEC (19)). Thus, Member States can impose taxes in connection with the registration of vehicles.

Depending on the characteristics of such taxes, there may be an exemption under Community law if the vehicle is transferred from one Member State to another as a result of a transfer of the place of normal residence of the vehicle's proprietor. In that case, the vehicle must have been acquired on the general conditions applicable to tax on the domestic market of another Member State and the owner should genuinely have had the use of it in that State for a period of at least six months (see Council Directive 83/183/EEC (20)).

3. How long may temporary registration last?

It is for the Member State which issues a temporary registration ('customs`, 'transit`, etc., plates) to determine the period of validity of the registration, which therefore varies from one Member State to another according to the registration series. The Commission considers that, if the authorities of the Member States of the destination of the vehicle authorize it to be operated on its original registration for a specified period of time or on a provisional registration they themselves have granted, they are precluded from instituting proceedings on the grounds that the period of validity of the authorization or registration has been exceeded if they themselves are responsible for the delay in final registration.

4. Is a vehicle from another Member State covered by the manufacturer's guarantee?

Each manufacturer's distribution-network outlets provide the minimum level of guarantee, free service and service following a recall laid down by the manufacturer, whatever the place of purchase of the vehicle within the common market (see Regulation (EC) No 1475/95) on presentation of the guarantee documents signed by a member of the official distribution network.

5. What action should be taken if difficulty is encountered in transferring or registering a vehicle?

Any person who finds that the principles set out in this interpretative Communication are not complied with or encounters any difficulties in transferring or registering a vehicle from another Member State, should contact the Commission either directly through the:

- European Commission,

Secretariat-General,

Rue de la Loi/Wetstraat 200,

B-1049, Brussels;

- or through one of its information offices, a list of which is given below.

Furthermore, the principles set out in this Communication may be relied upon in all actions brought before any national court, relating to the approval or registration of an imported vehicle. Articles 30 and 36 of the EC Treaty are provisions of the Treaty with direct effect which confer rights on individuals which national courts are obliged to uphold (see Judgment of the Court in Case 74/76, Iannelli & Volpi (21)).

Offices of the Commission

AUSTRIA

Vienna

Europäische Kommission

Vertretung in Österreich

Hoyosgasse 5

AT-1040 Wien

Austria

Tel. (43-1) 505 33 79;

documentation: (43-1) 505 74 52

Fax (43-1) 505 33 79-7

BELGIUM

Brussels

Commission européenne

Bureau en Belgique

Rue Archimède 73

B-1040 Bruxelles

Belgique/België

Tel. (32-2) 295 38 44

Fax (32-2) 295 01 66

Europese Commissie

Bureau in België

Archimedesstraat 73

B-1040 Brussel

Belgique/België

Tel. (32-2) 295 38 44

Fax (32-2) 295 01 66

DENMARK

Copenhagen

Europa Kommissionen

Repræsentation i Danmark

Højbrohus, Ostergade 61

DK-1004 København K

Denmark

Tel. (45-33) 14 41 40

Fax secretariat: (45-33) 11 12 03, 14 13 92;

documentation: (45-33) 14 14 47

Postal address:

Postbox 144

DK-1004 København K

Denmark

FINLAND

Helsinki

Euroopan komissio

Suomen edustusto

Pohjoisesplanadi 31

FIN-00131 Helsinki

Finland

Tel. (358-0) 65 64 20

Fax (358-0) 65 67 28;

presse et information: (358-0) 62 68 71

Postal address:

Euroopan komissio

PO Box 234

FIN-00131 Helsinki

Finland

FRANCE

Paris

Commission européenne

Représentation en France

288, boulevard Saint-Germain

F-75007 Paris

France

Tel. (33-1) 40 63 38 00

Fax (33-1) 45 56 94 17/18/19

Telex CCE BRF 20227 1 F

Marseille

Commission européenne

Représentation à Marseille

2. rue Henri-Barbusse (CMCI)

F-13241 Marseille Cedex 01

France

Tel. (33) 91 91 46 00

Fax (33) 91 90 98 07

Telex (042) 402538 EURMA

GERMANY

Bonn

Europäische Kommission

Vertretung in der BRD

Zitelmannstraße 22

D-53113 Bonn

Germany

Tel. (49-228) 530 09-0

Fax (49-228) 530 09-50, 530 09-12

Telex (041) 886648 EUROP D

Postal address:

Europäische Kommission

Postfach 53106

D-53113 Bonn

Germany

Berlin

Europäische Kommission - Vertretung in der BRD

Vertretung in Berlin

Kurfürstendamm 102

D-10711 Berlin

Deutschland

Tel. (49-30) 896 09 30

Fax (49-30) 892 20 59

Telex (041) 184015 EUROP D

Munich

Europäische Kommission - Vertretung in der BRD

Vertretung in München

Erhardtstraße 27

D-80331 München

Tel. (49-89) 202 10 11

Fax (49-89) 202 10 15

Telex (041) 5218135

GREECE

Athens

ÅõñùðáúêÞ ÅðéôñïðÞ

Áíôéðñïóùðåßá óôçí ÅëëÜäá

2 Vassilissis Sofias

GR-10674 Athina

Greece

Tel. (30-1) 725 10 00

Fax (30-1) 724 46 20

Telex (0601) 219324 ECAT GR

IRELAND

Dublin

EC Representation in Ireland

Jean Monnet Centre

39 Molesworth Street

Dublin 2

Ireland

Tel. (353-1) 671 22 44

Fax (353-1) 671 26 57

ITALY

Rome

Commissione europea

Rappresentanza in Italia

Via Poli, 29

I-00187 Roma

Italy

Tel. (39-6) 69 99 91

Fax (39-6) 679 16 58, 679 36 52

Milan

Commissione europea

Ufficio di Milano

Corso Magenta 59

I-20123 Milano

Italy

Tel. (39-2) 48 01 25 05

Fax (39-2) 481 85 43

Telex (043) 316200 EURMIL I

LUXEMBOURG

Luxembourg

CE Représentation au Luxembourg

Bâtiment Jean Monnet

Rue Alcide de Gasperi

L-2920 Luxembourg

Tel. (352) 43 01-1

Fax (352) 43 01-344 33

Telex 3423, 3446, 3476 COMEUR LU

THE NETHERLANDS

The Hague

Europese Commissie

Bureau in Nederland

Korte Vijverberg 5

2513 AB Den Haag

The Netherlands

Tel. (31-70) 346 93 26

Fax (31-70) 364 66 19

Telex (044) 31094 EURCO NL

Postal address:

Europese Commissie

Postbus 30465

2500 GL Den Haag

The Netherlands

PORTUGAL

Lisbon

CE Gabinete em Portugal

Centro Europeu Jean Monnet

Largo Jean Monnet 1-10º

P-1200 Lisboa

Portugal

Tel. (351-1) 350 98 00

Fax (351-1) 350 98 01/02/03

Telex (0404) 18810 COMEUR P

SPAIN

Madrid

Comisión Europea

Representación en España

Paseo de la Castellana, 46

E-28046 Madrid

Spain

Tel. (34-1) 431 57 11

Fax (34-1) 576 03 87, 577 29 23

Barcelona

Comisión Europea

Representación en Barcelona

Av. Diagonal, 407 bis, planta 18

E-08008 Barcelona

Spain

Tel. (34-3) 415 81 77 (5 lignes)

Fax (34-3) 415 63 11

SWEDEN

Stockholm

Europeiska kommissionen

Delegation i Sverige

Hamngatan 6, Box 7323

S-10390 Stockholm

Sweden

Tel. (46-8) 611 11 72

Fax (46-8) 611 44 35

UNITED KINGDOM

London

EC Representation in United Kingdom

Jean Monnet House

8, Storey's Gate

London SW1P 3AT

United Kingdom

Tel. (44-71) 973 19 92

Fax (44-71), reception: 973 19 00;

policy and coordination: 973 19 10;

administration: 973 18 95;

media: 973 19 07

Telex (051) 23208 EURUK G

Belfast

European Commission

Representation in Northern Ireland

Windsor House, 9/15 Bedford Street

Belfast BT2 7EG

United Kingdom

Tel. (44-232) 24 07 08

Fax (44-232) 24 82 41

Cardiff

European Commission

Representation in Wales

4 Cathedral Road

Cardiff CF1 9SG

United Kingdom

Tel. (44-222) 37 16 31

Fax (44-222) 39 54 89

Edinburgh

European Commission

Representation in Scotland

9 Alva Street

Edinburgh EH2 4PH

United Kingdom

Tel. (44-31) 225 20 58

Fax (44-31) 226 41 05

UNITED STATES

Washington

2100 M Street, NW (7th floor)

DC 20037 Washington

United States of America

Tel. (1-202) 862 95 00, 862 95 01, 862 95 02

Fax (1-202) 429 17 66

New York

(United Nations)

3, Dag Hammarskjöld Plaza

305 East, 47th Street

NY 10017 New York

United States of America

Tel. (1-212) 371 38 04

Fax delegation: (1-212) 758 27 18,

press and public affairs: (1-212) 688 10 13

JAPAN

Europa House

9-15 Sanbancho-Chiyoda-Ku

102 Tokyo

Japan

Tel. direct line, head of press and information:

(81-3) 32 39 04 61

Fax (81-3) 32 61 51 94, 32 39 93 37

Telex (072) 28567 COMEUTOK J

(1) OJ No C 281, 4. 11. 1988, p. 9.

(2) [1986] ECR 1855.

(3) [1987] ECR 2525.

(4) [1987] ECR 2717.

(5) OJ No L 42, 23. 2. 1970, p. 1.

(6) OJ No L 225, 10. 8. 1992, p. 1.

(7) See Annex II to Council Directive 70/156/EEC.

(8) OJ No L 225, 10. 8. 1992, p. 72.

(9) OJ No C 329, 18. 12. 1991, p. 20.

(10) See Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85 (3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements: (OJ No L 145, 29. 6. 1995, p. 25).

(11) Following the establishment of the internal market and the abolition of checks at its frontiers from 1 January 1993, it is no longer appropriate to speak of 'importation` and 'exportation`. Consequently, these terms are used here only in citing Court Judgments before that date.

(12) [1986] ECR 419.

(13) OJ No L 47, 18. 2. 1977, p. 47.

(14) OJ No L 222, 12. 8. 1988, p. 10.

(15) OJ No L 178, 6. 7. 1991, p. 29.

(16) OJ NO L 105, 23. 4. 1983, p. 59.

(17) OJ No L 376, 31. 12. 1991, p. 1.

(18) OJ No L 60, 3. 3. 1994, p. 16.

(19) OJ No L 76, 23. 3. 1993, p. 1.

(20) OJ No L 105, 23. 4. 1983, p. 64.

(21) [1977] ECR 557.