61995J0389

1 Tax provisions - Harmonization of laws - Tax exemptions applicable to temporary importation of means of transport - Directive 83/182 - Restriction of the number of private vehicles which one person can import free of tax - No such restriction

(Council Directive 83/182, Art. 3)

2 Tax provisions - Harmonization of laws - Tax exemptions applicable to temporary importation of means of transport - Directive 83/182 - Article 3 - Direct effect

(Council Directive 83/182, Art. 3)

3 Tax provisions - Harmonization of laws - Tax exemptions applicable to temporary importation of means of transport - National rules penalizing the importation of a second private vehicle free of tax by requiring the immediate payment of the customs duties and charges normally applicable and payment of a surcharge of an amount equal to those duties and charges - Not permissible

(Council Directive 83/182, Art. 3)

4 Article 3 of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another must be interpreted as meaning that the exemption for which it provides may be granted in respect of more than one private vehicle per person.

First, the Directive does not place any express limit on the number of private vehicles for which exemption may be claimed, nor is any such limitation evident from the wording of Article 3.

Second, such a limitation is liable to hinder freedom of movement of persons resident within the Community, whereas the objective pursued by the directive is the elimination of obstacles to the establishment of an internal market resulting from the taxation arrangements applied to the temporary importation of certain means of transport for private or business use.

5 Article 3 of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another has direct effect and confers on individuals rights which they may assert against a Member State that has failed to transpose that directive into domestic law, or has transposed it incorrectly, and which the national courts must safeguard.

That provision - which requires the Member States to grant individuals, subject to the conditions which it specifies, exemption from taxes where they temporarily import certain means of transport for private use - appears, as far as its subject-matter is concerned, to be unconditional in so far as it is not qualified by any condition and is not made subject, in its implementation or effects, to the adoption of any measure either by the Community institutions or by the Member States, and is unequivocal, that is to say, sufficiently precise to be relied on by an individual and applied by the courts.

6 Article 3 of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another must be interpreted as precluding domestic legislation under which the customs duties and other taxes applicable together with additional duty equal to the amount of those duties and taxes are to be payable immediately where a second private vehicle is imported temporarily. National legislation cannot penalize such temporary importation, which is authorized by that provision, without undermining the effect of the Directive.

In Case C-389/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Diikitiko Protodikio Thessaloniki (Greece) for a preliminary ruling in the proceedings pending before that court between

Siegfried Klattner

and

Greek State

on the interpretation 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 (OJ 1983 L 105, p. 59),

THE COURT

(Fifth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, C. Gulmann, D.A.O. Edward, J.-P. Puissochet (Rapporteur) and P. Jann, Judges,

Advocate General: A. La Pergola,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Mr Klattner, by Alexandros Tsamis and Ekaterini Sgouridou, of the Thessaloniki Bar,

- the Greek Government, by Georgios Kanellopoulos, Assistant Legal Adviser to the State Legal Service, and Ioanna Galani-Maragkoudaki, Special Assistant Legal Adviser in the Special European Communities Legal Department of the Ministry of Foreign Affairs, acting as Agents,

- the Commission of the European Communities, by Maria Patakia and Hélène Michard, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Klattner, the Greek Government and the Commission at the hearing on 23 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 20 March 1997,

gives the following

Judgment

1 By judgment of 28 February 1995, received at the Court on 25 January 1996, the Diikitiko Protodikio (Administrative Court of First Instance), Thessaloniki, referred to the Court for a preliminary ruling under Article 177 of the Treaty four questions on the interpretation 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 (OJ 1983 L 105, p. 59, `the Directive').

2 Those questions were raised in the course of an action brought by Mr Klattner for annulment of a notice of assessment requiring him to pay customs duties, taxes and additional duty for failure to comply with the national arrangements for the temporary importation free of tax of certain means of transport.

3 The purpose of the Directive, according to its preamble, is to eliminate the obstacles to freedom of movement and the establishment of a single market created by the taxation arrangements which the Member States apply to the temporary importation of certain means of transport (see the first and second recitals in the preamble).

4 Article 1 accordingly requires the Member States, under the conditions laid down in the Directive, to exempt temporary imports from another Member State of certain means of transport, including motor-driven road vehicles, from turnover tax, excise duties, consumption taxes and various other taxes (one of which is the circulation tax provided for by Greek Law No 2367/53). In order to qualify for exemption, the means of transport mentioned in the Directive must have been acquired or imported in accordance with the general conditions of taxation in force on the domestic market of a Member State and must not be subject, by reason of their export, to any exemption from or refund of turnover tax, excise duty or any other consumption tax.

5 Article 3 of the Directive concerning `temporary importation of certain means of transport for private use' provides:

`Where a private vehicle (...) is imported temporarily, the item imported shall be exempt from the taxes specified in Article 1 for a period, continuous or otherwise, of not more than six months in any 12 months, provided that:

(a) the individual importing such goods:

(aa) has his normal residence in a Member State other than the Member State of temporary importation;

(bb) employs the means of transport in question for his private use;

(b) the said means of transport is not disposed of or hired out in the Member State of temporary importation or lent to a resident of that State',

and Article 9(1) provides:

`Member States may maintain or introduce more liberal arrangements than those provided for in this directive. In particular, they may, at the request of the importer, permit temporary importation for a period longer than those referred to in Articles 3 and 4(2). In the latter event, Member States may levy the taxes mentioned in the Annex for periods exceeding those laid down by this directive (...)'.

6 The Directive was transposed into domestic law by Order of the Minister for Finance No D-1254/141/1984 of 1 November 1984, subsequently amended by Order of the Minister for Finance No D-247/13 of 1 March 1988 (`the Order').

7 Article 1(1) of the Order authorizes the temporary importation into Greece `free of customs duties and other charges of means of transport for private use (...) intended to remain temporarily in the country before being reexported at the end of the period provided for in each case'.

8 Exemption is granted for six months, consecutive or otherwise, in a 12-month period. It may be extended for nine more months (Article 4(2)).

9 According to Article 8(4) of the Order, the same person may not import a second means of transport tax-free.

10 Article 10(7) of the Order provides that where an offence under that last-mentioned provision is committed `the customs duties and other taxes applicable to the means of transport and items of personal use on the day on which it was found that the offence had been committed, and additional duty equal to 100% of the above duties and other taxes, shall be payable immediately'.

11 Mr Klattner, who resides in Germany, imported into Greece, where he frequently stays, a first private car from 27 November 1989 to 30 April 1990, followed by a second car from 14 April 1990 to 16 July 1991, in respect of which he benefited from the exemption arrangements provided for by the Order.

12 The contested notice of assessment was issued following checks carried out on 16 July 1991 by the customs authorities in Doïrani when Mr Klattner was attempting to reimport his second car free of tax. It charged him with the following offences, described as simple customs offences: first, that during the same period of 16 days (from 14 to 30 April 1990) he had had two private vehicles in circulation in Greece; and second, that by means of renewing the exemption, he had had a private vehicle in circulation for a period 134 days longer than the prescribed period. Pursuant to Article 10 of the Order, the notice of assessment required Mr Klattner to pay DR 21 043 856 by way of customs duties, other taxes and additional duties and also DR 29 430 by way of circulation tax.

13 Mr Klattner applied to the Diikitiko Protodikio Thessaloniki for annulment of the notice of assessment on the ground that the prohibition laid down by Article 8(4) of the Order was contrary to the provisions of the Directive.

14 Since the national court was uncertain whether various provisions of the Order were compatible with the Directive, it decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

`(1) Where certain means of transport for private use within the Community are temporarily imported within the meaning of Article 3 of Council Directive 83/182/EEC of 28 March 1983, is the exemption from tax granted for a single private vehicle or for more than one? Does the abovementioned directive in fact draw a distinction concerning the number of private vehicles which may be temporarily imported free of tax according to whether they are intended for private or business use?

(2) Does the directive specifically require the competent Greek authorities not to restrict by legislation the parallel or simultaneous temporary importation free of tax of more than one vehicle for private use by one and the same person? May an individual rely on Articles 3 and 9 of the directive against the authorities before a national court, claiming that the rules contained in a provision of law are incompatible with those articles of the directive?

(3) Is it compatible with the objective and terms of the directive for the national legislature to provide that where certain provisions (such as Article 8(4) which prohibits the importation of a second vehicle by the same person) of the ministerial order transposing the directive into national law are infringed, the applicable customs duties and other taxes and additional duty of the same amount as well are payable immediately, inasmuch as it is shown that the private vehicle is imported temporarily and not permanently?$

(4) Is it compatible with the Community principle of proportionality to provide, as in the above case, for additional duty equal to 100% of the applicable duties and other taxes to be levied regardless of the length of time for which the second private vehicle remained in Greece?'

Question 1

15 By its first question, the national court is essentially asking whether Article 3 of the Directive must be interpreted as meaning that the exemption for which it provides may be granted in respect of more than one private vehicle per person.

16 Mr Klattner and the Commission argue that Article 3 of the Directive does not restrict the number of private vehicles which may be exempted. They state that most language versions of the Directive use the plural in designating the means of transport which may be exempted. Furthermore, in their view restriction of the number of vehicles which may be exempted is liable to impede the free movement of persons within the Community and encourage double taxation. The Commission adds that the risk of tax evasion can be limited by less coercive measures, in particular by stamping the passports of persons claiming exemption.

17 The Greek Government, in contrast, maintains that Article 3 of the Directive must be interpreted as meaning that exemption can be granted for only one private vehicle per person. It considers that that interpretation follows in the first place from the actual wording of Article 3, read in conjunction with Articles 4 and 5, of the Directive. It states, in particular, that the use of the plural in Article 3 can be explained by the fact that several categories of means of transport are mentioned in that provision. In its opinion, that interpretation finds further support in the fact that the Directive did not create the conditions for the free movement of vehicles within the Community and confined exemption to vehicles imported for private use. Lastly, the Greek Government submits that it is with a view to avoiding tax evasion and disturbances on the domestic market in new or second-hand vehicles that the number of vehicles for which exemption may be claimed is limited.

18 It should first be noted that the Directive does not place any express limit on the number of private vehicles, or even on the number of means of transport, for which exemption may be claimed.

19 Nor is any such limitation evident in the wording of Article 3 of the Directive.

20 The goods which may be imported free of tax for private use are defined in non-exhaustive terms in most of the language versions, in particular in the Greek version of that article (`indførsel af private køretøjer', `Einfuhr von Personenfahrzeugen', `importación ... de vehículos de turismo', `importation ... des véhicules de tourisme', `importazione ... dei veicoli da turismo', `åéòáãùãÞ åðéâáôéêþí ï÷çìÜôùí', `invoer van personenvoertuigen', `importaçao ... de veículos de turismo', `yksityisajoneuvot on maahantuotaessa').

21 The Greek Government cannot validly maintain that such a restriction follows by analogy from the wording of Articles 4 and 5 of the Directive concerning temporary importation of private vehicles for business use and specific cases of temporary importation of private vehicles respectively.

22 In addition to the fact that those provisions apply to imports other than those covered by Article 3 of the Directive, it is clear both from the general scheme of those articles and from the words used in the various language versions that the word `un' used in the Spanish and French versions, like `um' in the Portuguese, and `a' in the English, cannot be construed, as the Greek Government would have it, as meaning that exemption may be granted for one vehicle only.

23 Nor can a limitation of the number of vehicles imported which may qualify for exemption be inferred from the objectives pursued by the Directive.

24 The Directive was adopted on the basis of Article 99 of the EEC Treaty and seeks to eliminate obstacles to the establishment of an internal market resulting from the taxation arrangements applied to temporary and permanent importation of certain means of transport for private or business use (Case C-9/92 Commission v Greece [1993] ECR I-4467, paragraph 6).

25 As the Court has already held, the provisions of the Directive must be interpreted in the light of the fundamental aims of the endeavour to harmonize VAT, in particular the promotion of freedom of movement for persons and goods and the prevention of double taxation (Case 249/84 Profant [1985] ECR 3237, paragraph 25; Case 127/86 Ledoux [1988] ECR 3741, paragraph 11, and Case C-297/89 Ryborg [1991] ECR I-1943, paragraph 13). In particular, account must be taken of the fact that it is stated in the preamble to the Directive 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 (Ryborg, cited above, paragraph 14).

26 Limiting the number of vehicles which may qualify for exemption is liable to hinder freedom of movement of persons resident within the Community, a freedom which, to the contrary, the Directive is intended to facilitate. A person may need to import other vehicles or other means of transport temporarily for private use especially, as the Advocate General pointed out in paragraphs 26 and 27 of his Opinion, where he has had to use other means of transport to return to his own State, for example following illness, breakdown or accident, or more generally where he owns several vehicles for his own use or for use by members of his family. Moreover, the Greek Government itself acknowledges that in some circumstances it must be possible for exemption to be granted for a second vehicle.

27 While the risk of tax evasion may, as the Greek Government claims, be increased if more than one vehicle can be imported tax-free, and in some Member States, such as the Hellenic Republic, in which second-hand vehicles are expensive the risk of disturbing the domestic market may be increased, the fact remains that, as the Commission has pointed out, various methods of control exist for limiting those risks, in particular stamping the vehicle owner's documents.

28 Furthermore, although there is no fixed limit on the number of vehicles which a person may import free of tax, various conditions must none the less be satisfied, concerning in particular the `temporary' character of the importation and the `private' use, that is to say, according to Article 2(d) of the Directive, `any use other than business use' of the vehicle.

29 The answer to the first question must therefore be that Article 3 of the Directive must be interpreted as meaning that the exemption for which it provides may be granted in respect of more than one private vehicle per person.

Question 2

30 Having regard to the answer given to the first question, the second question must be understood as seeking to ascertain whether Article 3 of the Directive has direct effect and confers on individuals rights which they may assert against a Member State that has failed to transpose the Directive into domestic law, or has transposed it incorrectly, and which the national courts must safeguard.

31 Mr Klattner, the Greek Government and the Commission consider that Article 3 of the Directive, which is unconditional and sufficiently precise, may be relied upon directly against a Member State.

32 The Court has consistently held (Case 8/81 Becker [1982] ECR 53, paragraph 25, and Joined Cases C-246/94, C-247/94, C-248/94 and C-249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373, paragraph 17) that, whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon before the national courts by an individual against the State where the State has failed to transpose the Directive into domestic law by the end of the period prescribed or where it has failed to implement the Directive correctly.

33 A Community provision is unconditional where it lays down an obligation which is not qualified by any condition and is not made subject, in its implementation or effects, to the adoption of any measure either by the Community institutions or by the Member States (Case 28/67 Molkerei-Zentrale Westfalen Lippe [1968] ECR 211, 226, and Cooperativa Agricola Zootecnica S. Antonio and Others, cited above, paragraph 18). It is sufficiently precise to be relied on by an individual and applied by the courts where it lays down an obligation in unequivocal terms (Case 152/84 Marshall [1986] ECR 723, paragraph 52, and Cooperativa Agricola Zootecnica S. Antonio and Others, cited above, paragraph 19).

34 Article 3 of the Directive has precisely those characteristics. It unconditionally and unequivocally requires the Member States to grant individuals, subject to the conditions which it specifies, exemption from taxes where they temporarily import certain means of transport for private use.

35 The answer to the second question must therefore be that Article 3 of the Directive has direct effect and confers on individuals rights which they may assert against a Member State that has failed to transpose the Directive into domestic law, or has transposed it incorrectly, and which the national courts must safeguard.

Questions 3 and 4

36 By its last two questions the national court asks whether the provisions of the Directive or the principle of proportionality preclude domestic legislation under which the customs duties and other taxes applicable together with additional duty equal to the amount of those duties and taxes are to be payable immediately where a second private vehicle is imported temporarily.

37 Mr Klattner and the Commission maintain in the first place that a Member State cannot penalize the temporary importation of a second vehicle, as the Greek rules do, without contravening the provisions of the Directive. Mr Klattner adds that the penalties imposed under the Greek legislation are disproportionate to the offence he committed. The Commission, for its part, submits that national legislation cannot require customs duties to be paid on vehicles originating within the Community, as is the case in the main proceedings, and can demand immediate payment of the taxes normally payable only where the importation ceases to be temporary in nature as a consequence of the offence committed. Lastly, the Commission states that the penalties applicable to imported vehicles must not be considerably more severe than those applicable to domestic vehicles.

38 In that regard, it is sufficient to point out that national legislation cannot penalize the temporary importation of a second vehicle for private use, which is authorized by Article 3 of the Directive, without undermining the effect of the Directive.

39 It must accordingly be stated in reply to the third and fourth questions that Article 3 of the Directive must be interpreted as precluding domestic legislation under which the customs duties and other taxes applicable together with additional duty equal to the amount of those duties and taxes are to be payable immediately where a second private vehicle is imported temporarily.

Costs

40 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Fifth Chamber),

in answer to the questions referred to it by the Diikitiko Protodikio Thessaloniki by judgment of 28 February 1995, hereby rules:

1. Article 3 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 must be interpreted as meaning that the exemption for which it provides may be granted in respect of more than one private vehicle per person.

2. Article 3 of Directive 83/182 has direct effect and confers on individuals rights which they may assert against a Member State that has failed to transpose that directive into domestic law, or has transposed it incorrectly, and which the national courts must safeguard.

3. Article 3 of Directive 83/182 must be interpreted as precluding domestic legislation under which the customs duties and other taxes applicable together with additional duty equal to the amount of those duties and taxes are to be payable immediately where a second private vehicle is imported temporarily.