Regionalna Mitnicheska Direktsia - Plovdiv v Petar Dimitrov Kalinchev.

• Jurisdiction: European Union
• Celex Number: 62009CJ0002
• ECLI: ECLI:EU:C:2010:312
• Docket Number: C-2/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 03 June 2010

Case C-2/09

Direktor na Agentsia ‘Mitnitsi’, formerly known as Regionalna Mitnicheska Direktsia – Plovdiv

v

Petar Dimitrov Kalinchev

(Reference for a preliminary ruling from the Varhoven administrativen sad)

(Excise duties – Taxation of used vehicles – Taxation of imported used vehicles higher than that imposed on vehicles which are already in circulation in the national territory – Taxation according to the year of manufacture and mileage of the vehicles – Concept of ‘similar domestic products’)

Summary of the Judgment

1. Tax provisions – Internal taxation – Excise duty imposed on second-hand motor vehicles on their introduction into national territory

(Council Directive 92/12, Art. 3(3) and para. 1)

2. Tax provisions – Internal taxation – Prohibition of discrimination between imported products and similar domestic products – Like products

(Art. 110, first para., TFEU)

3. Tax provisions – Internal taxation – Excise system applied to second-hand motor vehicles

(Art. 110, first para., TFEU)

1. The first subparagraph of Article 3(3) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products does not apply to a case such as that in the main proceedings and cannot therefore preclude a Member State from laying down provisions levying excise duty on the introduction of used motor vehicles into its territory, when that duty is not directly payable on the second-hand purchase of such vehicles which are already in the country and on which excise duty has already been paid on first introduction into the territory of the Member State, provided that such a system does not give rise to border-crossing formalities in trade between Member States.

It is for the referring court to ascertain whether the legislation as a whole at issue in the main proceedings may be interpreted in the sense that the obligation to declare the introduction of a vehicle into the national territory is not a border-crossing formality, but rather a formality concerning the subsequent calculation of the amount of the excise duty at the time when it becomes payable. Although the declaration had to be submitted at the time of the intra-Community acquisition of the vehicle, and thus at the time of crossing a border, that formality would, however, relate not to that ‘crossing’ for the purposes of the first subparagraph of Article 3(3) of Directive 92/12, but to the obligation to pay the excise duty. In that case, the purpose of that declaration being to ensure payment of the debt corresponding to the excise duty, that formality would thus relate to the event giving rise to the excise duty.

(see paras 27-28, operative part 1)

2. The first paragraph of Article 110 TFEU must be interpreted as meaning that used vehicles imported into a Member State must be regarded as products similar to used vehicles already registered in that State which were imported into that State as new vehicles, independently of their origin.

(see para. 33, operative part 2)

3. The first paragraph of Article 110 TFEU precludes a Member State from applying differing rules on the levying of excise duty on motor vehicles when that excise duty is levied differently on used vehicles imported from other Member States and used vehicles already registered in that State and which were imported into that State as new vehicles.

In particular, the excise system that, for the purposes of the calculating of the excise duty for used vehicles imported from other Member States, does not take account either of the year of manufacture or the mileage of vehicles at the time of their importation into the national territory, but provides that the basis of assessment and the rate of excise duty are calculated solely according to the engine output which is a fixed characteristic of a vehicle, independent of its actual condition, whereas used vehicles are however taxed according to different criteria from new vehicles, does not allow a neutral calculation of excise duty for imported used vehicles. Taking into account the fact that the excise duty is levied on imported goods once only, in accordance with that system, the calculation of excise duty for new vehicles is always more favourable than for used vehicles. Since used vehicles already in circulation in the territory of the Member State, namely, vehicles that were imported as new vehicles, are taxed at the time of their entry into the territory as new vehicles, it is relatively more expensive to import a used vehicle from another Member State than to purchase a vehicle of the same type, the same engine output and mileage, that is to say, in the same condition, in the territory of the Member State. That fact is likely to influence the choice made by consumers.

(see paras 43-47, operative part 3)

JUDGMENT OF THE COURT (First Chamber)

3 June 2010 (*)

(Excise duties – Taxation of used vehicles – Taxation of imported used vehicles higher than that imposed on vehicles which are already in circulation in the national territory – Taxation according to the year of manufacture and mileage of the vehicles – Concept of ‘similar domestic products’)

In Case C‑2/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Varhoven administrativen sad (Bulgaria), made by decision of 13 November 2008, received at the Court on 6 January 2009, in the proceedings

Regionalna Mitnicheska Direktsia – Plovdiv

v

Petar Dimitrov Kalinchev,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet, M. Ilešič (Rapporteur), M. Safjan and M. Berger, Judges,

Advocate General: E. Sharpston,

Registrar: N. Nanchev, Administrator,

having regard to the written procedure and further to the hearing on 10 February 2010,

after considering the observations submitted on behalf of:

– P.D. Kalinchev, by M. Ekimdžiev, аdvokat,

– the Bulgarian Government, by A. Ananiev and T. Ivanov, acting as Agents,

– the Commission of the European Communities, by D. Triantafyllou and S. Petrova, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 25 EC, the first paragraph of Article 90 EC, and Article 3(3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

2 The reference was made in the course of proceedings between Mr Kalinchev and the Regionalna Mitnicheska Direktsia – Plovdiv (Regional Customs Directorate, Plovdiv) concerning the latter’s refusal to grant a reduction of the excise duty imposed on Mr Kalinchev when his vehicle was imported.

Legal context

European Union legislation

3 Article 3(1) and (3) of Directive 92/12 provides:

‘1. This Directive shall apply at Community level to the following products as defined in the relevant Directives:

– mineral oils,

– alcohol and alcoholic beverages,

– manufactured tobacco.

…

3. Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.

Subject to the same proviso, Member States shall also retain the right to levy taxes on the supply of services which cannot be characterised as turnover taxes, including those relating to products subject to excise duty.’

National legislation

4 In accordance with Article 2 of the Law on excise duties and tax warehouses (Zakon za aktsizite i danachnite skladove, DV No 91 of 15 November 2005), as amended by the Law DV No 6 of 23 January 2009 (‘the ZADS’), excise duty is levied on alcohol and alcoholic drinks, tobacco products, energy products and electrical energy and motor vehicles.

5 Under Article 4(16) of the ZADS:

‘A “new motor vehicle” is a motor vehicle in respect of which, at the date of importation or the date of the lodging of the declaration to the customs authorities pursuant to Article 76d, one of the following conditions is fulfilled:

(a) since the date of its first registration (which may be abroad), no more than six months have elapsed; or

(b) it has travelled no more than 6 000 km.’

6 Under Article 18 of...