NM v Autoridade Tributária e Aduaneira.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:888
• Date: 16 November 2023
• Docket Number: C-349/22
• Celex Number: 62022CJ0349
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

16 November 2023 (*)

(Reference for a preliminary ruling – Article 110 TFEU – Internal taxation – Prohibition of discriminatory taxation – Tax on vehicles – Second-hand vehicles imported from other Member States – Application of different tax rates depending on the date of registration of a vehicle in Portugal)

In Case C‑349/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal), made by decision of 23 May 2022, received at the Court on 31 May 2022, in the proceedings

NM

v

Autoridade Tributária e Aduaneira

THE COURT (Eighth Chamber),

composed of N. Piçarra, President of the Chamber, M. Safjan and N. Jääskinen (Rapporteur), Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– NM, by P. Carido, advogado,

– the Portuguese Government, by P. Barros da Costa, A. Pimenta, A. Rodrigues and N. Vitorino, acting as Agents,

– the European Commission, by M. Björkland and I. Melo Sampaio, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 110 TFEU.

2 The request has been made in proceedings between NM and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) (‘the tax authority’) concerning the payment notice for the tax on vehicles (‘the tax’) provided for in the Código do Imposto sobre Veículos (Vehicle Tax Code) affecting a vehicle imported into Portugal by NM.

Legal context

3 Article 2 of the Vehicle Tax Code, entitled ‘Objective scope’, provides in paragraph 1(a):

‘The following vehicles shall be subject to the tax:

(a) light passenger motor vehicles, which shall mean vehicles with a gross weight of up to 3 500 [kilogrammes (kg)] and capacity of not more than nine seats, including the driver’s seat, intended to transport people.’

4 Article 3 of that code, entitled ‘Subjective scope’, provides in paragraph 1:

‘The tax shall be payable by registered operators, authorised operators and private individuals, as defined in this code, engaged in the release for consumption of vehicles liable to the tax, such persons being considered to be those persons in whose name the vehicle customs declaration is made.’

5 Article 5 of the code, entitled ‘Chargeable event’, is worded as follows:

‘1 – The chargeable event for the tax shall be the manufacture or assembly in, or admission or import into the national territory of taxable vehicles that are subject to a registration requirement in Portugal.

…

3 – For the purposes of this code:

(a) “admission” means the entry into the national territory of a vehicle which comes from another Member State of the European Union or is released for free circulation in that State’.

6 Article 6 of that code, entitled ‘Due payment of the tax’, states:

‘1 – In the situations referred to in paragraph 1 of the previous article, the tax becomes chargeable at the time of release for consumption, which is deemed to occur:

…

(b) when the vehicle customs declaration is submitted for private individuals;

…

3 – The applicable rate shall be the rate in force when the tax becomes chargeable.’

7 Article 7 of the Vehicle Tax Code, entitled ‘Standard rates – motor cars’, provides in paragraph 1(a):

‘I – Table A, below, sets out the tax rates, which are based on the cubic capacity and the environmental component; it applies to the following vehicles:

(a) passenger motor vehicles’.

8 In the version amended by Lei n.º 82-D/2014 que procede à alteração das normas fiscais ambientais nos sectores da energia e emissões, transportes, água, resíduos, ordenamento do território, florestas e biodiversidade, introduzindo ainda um regime de tributação dos sacos de plástico e um regime de incentivo ao abate de veículos em fim de vida, no quadro de uma reforma da fiscalidade ambiental (Law No 82-D/2014 amending environmental tax rules in the energy and emissions, transport, water, waste, spatial planning, forests and biodiversity sectors, and introducing a taxation scheme for plastic bags and an incentive scheme for scrapping end-of-life vehicles, as part of a reform of environmental taxation), of 31 December 2014 (Diário da República, 1st series, No 252 of 31 December 2014), in force between 1 January 2015 and 31 December 2020 (‘Law No 82‑D/2014’), Article 8 of the Vehicle Tax Code, entitled ‘Intermediate rates – motor cars’, provided in paragraph 1(d):

‘An intermediate rate – calculated by applying the percentages stated below to the amount arrived at by applying Table A in paragraph 1 of the previous article – shall apply to the following vehicles:

(d) 25%, for light passenger motor vehicles equipped with plug-in hybrid engines where the battery can be charged from the electricity network and the vehicle has a minimum range of 25 km in electric mode.’

9 In the version amended by Lei n.º 75-B/2020, Orçamento do Estado para 2021 (Law No 75-B/2020, State Budget Law for 2021) of 31 December 2020 (Diário da República, 1st series, No 253 of 31 December 2020), in force since 1 January 2021 (‘Law No 75-B/2020’), Article 8 of the Vehicle Tax Code, entitled ‘Intermediate rates – motor cars’, provides in paragraph 1(d):

‘An intermediate rate – calculated by applying the percentages stated below to the amount arrived at by applying Table A in paragraph 1 of the previous article – shall apply to the following vehicles:

…

(d) 25%, for light passenger motor vehicles equipped with plug-in hybrid engines where the battery can be charged from the electricity network and the vehicle has a minimum range of 25 km in electric mode and official emissions of 50g of CO2 per km.’

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