61989J0297

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1. Tax provisions - Harmonization of laws - Tax exemptions for temporary imports of means of transport - 'Normal residence' for the purposes of Directive 83/182 - Meaning - Criteria

(Council Directive 83/182, Art. 7(1))

2. Tax provisions - Harmonization of laws - Tax exemptions for temporary imports of means of transport - Member States' obligation under Directive 83/182 to consult each other - Scope - Right of individuals to rely on the provision imposing that obligation - None

(Council Directive 83/182, Art. 10(2))

1. For the purposes of Article 7(1) of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another 'normal residence' 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 context it should be noted that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member State B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

2. Article 10(2) of Directive 83/182 requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, which will enable them to cope with any future difficulties which may arise in individual cases. However, that provision does not require the Member States to cooperate in each individual case in which the application of the directive raises difficulties.

Since that provision requires the Member States to cooperate only if difficulties arise in applying the directive and thus leaves them a wide discretion, it may not be relied on by individuals before national courts.

In Case C-297/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hoejesteret (Supreme Court), Denmark, for a preliminary ruling in the proceedings pending before that court between

Rigsadvokaten

and

Nicolai Christian Ryborg,

on the interpretation of the second subparagraph of Article 7(1) and Article 10 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 (Official Journal L 105, p. 59),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, T.F. O' Higgins, M. Díez de Velasco, C.N. Kakouris and P.J.G. Kapteyn, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

N.C. Ryborg, by G. Lett, of the Copenhagen Bar,

the Danish Government, by J. Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

the United Kingdom, by J.E. Collins, Treasury Solicitor, and D. Anderson, Barrister, acting as Agents,

the French Government, by E. Belliard, Assistant Director in the Directorate for Legal Affairs, Ministry of Foreign Affairs, acting as Agent, and M. Giacomini, Secretary for Foreign Affairs in the same ministry, acting as Agent,

the Commission, by J.F. Buhl, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of Mr Ryborg (represented by G. Lett and by E. Johansson, of the Kiel Bar), the Danish Government, the United Kingdom and the Commission at the sitting on 3 October 1990,

after hearing the Opinion of the Advocate General at the sitting on 27 November 1990, gives the following

Judgment

1 By order of 22 August 1989, which was received at the Court on 28 September 1989, the Hoejesteret referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 7 and 10 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 (Official Journal L 105, p. 59).

2 The questions were raised in criminal proceedings brought against Mr Ryborg for bringing into Denmark on 12 November 1982 a private car purchased and registered in the Federal Republic of Germany and for using it in Denmark without having paid tax on it and without having registered it in Denmark.

3 On 6 April 1973, Mr Ryborg, a Danish national, moved to the Federal Republic of Germany where he found work and accommodation. During the subsequent years, he frequently went to Denmark in a car registered in Germany. According to his statements, since 1981 he frequently stayed with a Danish woman friend residing in Denmark. Subsequently, from July or August 1982, he spent almost every night and most of his weekends there.

4 In October 1982, Mr Ryborg purchased a new car which he registered in Germany. During the period from 12 November 1982 to 17 January 1984, he used that vehicle to visit his friend. On 17 January 1984, the Danish authorities confiscated his car, on the ground that it had not been registered in Denmark.

5 Having been fined and ordered to pay an amount due in respect of value added tax ("VAT") by a judgment of the Kriminalret (Criminal Court), Soenderborg, of 6 September 1984, which was confirmed by judgment of the Vestre Landsret (Western Regional Court) of 28 October 1984, Mr Ryborg appealed to the Hoejesteret seeking acquittal.

6 The Hoejesteret decided to refer three questions to the Court for a preliminary ruling, the first question being given in two alternative versions:

"1. (Alternative 1)

On the basis of what criteria is it to be decided whether, by virtue of the second subparagraph 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, a national of country B has his normal residence in country A or country B, where it is established that

(a) he declared to the authorities of both countries that he had moved to country A,

(b) his job and normal residence were thereafter in country A,

(c) as from a later date, without declaring that he had moved to country B and whilst maintaining his dwelling and job in country A, he stayed overnight, over a period of more than one year, at the home of a woman friend in country B on all weekdays except for one night every three weeks when, in connection with night duty at his place of work, he stayed overnight in his dwelling in country A, and also stayed overnight some week-ends with the friend, sometimes at her dwelling in country B and sometimes at his dwelling in country A, and spent holidays with her?

1. (Alternative 2)

On the basis of what criteria is it to be decided whether, by virtue of the second subparagraph 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, a national of country B has his normal residence in country A or country B, where it is established that

(a) he declared to the authorities of both countries that he had moved to country A,

(b) his job and normal residence were thereafter in country A,

(c) as from a later date, without declaring that he had moved to country B and whilst maintaining his dwelling and job in country A, he stayed overnight on all weekdays over a period of more than one year at the home of a woman friend in country B?

2. Does the requirement contained in Article 10 of Directive 83/182/EEC concerning cooperation between the competent authorities of the countries concerned on the practical application of the directive preclude a Member State B from requiring, without prior agreement with Member State A, one of its nationals who has registered his car and paid taxes thereon in Member State A to register the car and pay additional taxes thereon in Member State B, if Member State B is of the opinion that the person concerned now has his normal residence in Member State B?

3. Does Article 10 of the Directive create rights for citizens which can be relied on before a national court?"

The Hoejesteret states that it considered it necessary to give alternative versions of the first question in order to set out the precise facts on which the judgments of the Kriminalret, Soenderborg, and the Vestre Landsret were based.

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 It should first be observed that the events giving rise to the main proceedings occurred between 12 November 1982 and 17 January 1984, whilst Directive 83/182, to which the questions relate, should have been implemented in national law no later than 1 January 1984 and was in fact not fully implemented in Danish law until 30 January 1984, by Ministerial Order No 24, which entered into force on 1 February 1984 (Lovtidende A, 1984, p. 173).

9 However, it must be observed that under Article 177 of the Treaty, which requires cooperation and a clear division of functions as between the national courts and the Court of Justice, the Court may not criticize the grounds of the order for reference or the relevance of the questions submitted. However, it must be stated, within that context of cooperation between national courts and the Court of Justice, that the order for reference contains a detailed account of the facts of the main proceedings and that the Hoejesteret expressly refers in its questions to the provisions of Directive 83/182.

10 It is therefore necessary to give an answer to the questions submitted on the understanding that the national court will consider the matters at issue on the basis of national legislation in the light of Directive 83/182.

The first question

11 In the first question, the national court asks essentially what criteria must be adopted, under Article 7 of Directive 83/182, in order to determine the normal residence of a person in circumstances such as those of the accused in the main proceedings.

12 In order to answer that question, it must first be observed that Directive 83/182 contains, with respect to the temporary importation of certain means of transport and in relation to VAT, Community tax rules of the kind provided for in Article 14(2) of the Sixth Directive, Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common System of value added tax: uniform basis of assessment (Official Journal L 145, p. 1, hereinafter referred to as "the Sixth Directive").

13 Accordingly, Directive 83/182 must be interpreted in the light of the fundamental aims of the VAT harmonizing measures, in particular the promotion of freedom of movement for persons and goods and the prevention of double taxation (judgments in Case 249/84 Profant [1985] ECR 3237, paragraph 25, and Case 127/86 Ledoux [1988] ECR 3741).

14 In particular, account must be taken of the fact that it is stated in the preamble to Directive 83/182 that 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, that the elimination of the obstacles resulting from those taxation arrangements is particularly necessary if an economic market having features similar to those of a domestic market is to be established and that it must be possible for that purpose to establish definitely whether or not a person is in fact resident in a given Member State.

15 As far as normal residence is concerned, it must be observed that Articles 3, 4 and 5 of Directive 83/182 make the grant of tax exemption by the Member States referred to in Article 1 for temporary importation of a private car conditional upon the requirement that the individual importing a means of transport has his normal residence in a Member State other than the Member State of temporary importation.

16 It follows that once the place of normal residence has been established in accordance with Articles 7(1) and 9(3) of Directive 83/182 it is possible to determine into which Member State the vehicle concerned has been temporarily imported, and which Member State is entitled to apply its tax legislation to the vehicle.

17 According to the first subparagraph of Article 7(1) of the directive, "normal residence" means the place where a person usually lives, that is to say 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.

18 The second subparagraph of Article 7(1) relates to persons whose occupational ties are with a place other than that of their personal ties and who consequently live in turn in different places situated in two or more Member States. It provides that in such circumstances a person' s normal residence is regarded as being the place of his personal ties, provided that he returns there regularly. That place must be determined in accordance with the first subparagraph of Article 7(1).

19 It must be stated, first, that the criteria laid down in those provisions refer both to a person' s occupational and personal ties with a place and to the duration of those ties and consequently that they must be examined in conjunction with each other. Normal residence must, according to consistent decisions of the Court in other spheres of Community law, be regarded as the place where a person has established his permanent centre of interests (see judgments in Case 13/73 Angenieux [1973] ECR 935, Case 284/87 Schaeflein v Commission [1988] ECR 4475 and Case C-216/89 Reibold [1990] ECR I-4163).

20 It follows that all the relevant elements of fact must, in the light of the criteria laid down in the abovementioned provisions, be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned.

21 It must also be borne in mind that, whilst it is for the Court of Justice to lay down the criteria by which the national court must be guided in applying a rule of Community law and it is for the national court to make the factual assessments required for the application of those criteria to the particular circumstances giving rise to the main proceedings, it is the responsibility of the Court, under Article 177 of the Treaty, to inform the national court of the conditions under which the circumstances of fact mentioned in the questions submitted may be taken into account in applying those criteria (see judgment in Reibold, supra, paragraph 18).

22 It is apparent from the terms of the first question that the case before the national court concerns a national of Member State B who for several years has been employed and had his normal residence in Member State A and that the issue of his normal residence arose only because after a certain date and for over a year he spent nearly every night and weekend with a woman friend in State B.

23 It is also apparent from the preliminary question that the person concerned retains occupational ties with Member State A and that he retains his dwelling there.

24 In those circumstances, the mere fact that a person spends nights and weekends for more than a year with a woman friend in State B is not sufficient for it to be concluded that he has moved the permanent centre of his interests to that State.

25 The position would be different if the person concerned settled in Member State B and manifested an intention to live there with his woman friend and not to return to Member State A (see the judgment in Profant, supra, paragraph 27).

26 It is also apparent from the order for reference and from the observations made at the hearing that the Danish authorities consider that Mr Ryborg transferred his normal residence to Denmark as from the date on which they established for the first time that he was crossing the frontier in a new car.

27 The concept of residence, for the purposes of Directive 83/182, serves to determine whether a means of transport has been temporarily imported. However, the logic of that approach may not be reversed so that a person' s normal residence is conditional upon importation. The fact that a person who has been going to another Member State does so after a certain date in a new car is therefore not relevant in determining his normal residence.

28 It must therefore be stated in reply to the first question that for the purposes of Article 7(1) of Directive 83/182 "normal residence" 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.

29 It must also be made clear that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member State B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

The second question

30 In its second question, the national court seeks essentially to know whether Article 10(2) of Directive 83/182 requires the Member States to consult each other in advance in specific cases, such as the case at issue in the main proceedings.

31 It must first be observed that, according to Article 10(1) and (3), Directive 83/182 is to be applied by the Member States to individual cases within the framework of the provisions of their national law which implement the directive or which may be adopted subsequently in the area covered by the directive.

32 It must then be pointed out that, according to the last recital in the preamble thereto, Directive 83/182 merely marks the first stage of harmonization of the provisions governing temporary imports of certain means of transport and that other measures may be necessary to establish a uniform system in all the Member States in accordance with Article 10(4) of the directive.

33 It is therefore against that general and changing background that Article 10(2) must be analysed. Like the other paragraphs of Article 10, it concerns the general functioning of Directive 83/182.

34 Article 10(2) thus requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, which will enable them to cope with any future difficulties which may arise in individual cases.

35 It must therefore be stated in reply to the second question that 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.

The third question

36 In its third question, the national court seeks essentially to know whether Article 10(2) of Directive 83/182 may be relied on by individuals before the national courts.

37 It has been consistently held by the Court (see, in particular, the judgment in Case 31/87 Beentjes [1988] ECR 4635, paragraph 40) that only those provisions of a directive which appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise may be relied on by individuals against the State.

38 However, Article 10(2) of Directive 83/182 is conditional, in so far as it requires the Member States to cooperate only if difficulties arise in applying the directive, and thus leaves them a wide discretion.

39 It must therefore be stated in reply to the third question submitted by the Hoejesteret that Article 10(2) of Directive 83/182 may not be relied on by individuals before national courts.

Costs

40 The costs incurred by the Kingdom of Denmark, the French Republic, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in reply to the questions submitted by the Hoejesteret, Copenhagen, by order of 22 August 1989, hereby rules:

1. For the purposes 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 'normal residence' 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 context it should be noted that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member state B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

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

3. Article 10(2) of Directive 83/182/EEC cannot be relied upon by individuals before national courts.