In Case C-343/90,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal Fiscal Aduaneiro do Porto (Portugal) for a preliminary ruling in the proceedings pending before that court between
Manuel José Lourenço Dias
and
Director da Alfândega do Porto,
on the interpretation of Articles 12 and 95 of the EEC Treaty,
THE COURT (Fifth Chamber),
composed of: R. Joliet, President of the Chamber, G.F. Mancini, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Zuleeg, Judges,
Advocate General: G. Tesauro,
Registrar: H.A. Ruehl, Principal Administrator,
after considering the written observations submitted on behalf of:
° the public prosecutor attached to the Tribunal Fiscal Aduaneiro do Porto, by Isabel Aguiar;
° the Portuguese Government, by Luís Fernandes, Director of the Legal Service of the Directorate General for the European Communities, and Maria Luísa Duarte, Legal Adviser in the Legal Service of the Directorate General for the European Communities;
° the United Kingdom, by Hussein A. Kaya, of the Treasury Solicitor' s Department, acting as Agent;
° the Commission of the European Communities, by António Caeiro, Legal Adviser, and Daniel Calleja Crespo, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the Portuguese Government and the Commission at the hearing on 20 February 1992,
after hearing the Opinion of the Advocate General at the sitting on 31 March 1992,
gives the following
Judgment
1 By order of 18 October 1990, received at the Court on 16 November 1990, the Tribunal Fiscal Aduaneiro do Porto (Customs Court, Oporto) (Portugal) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty eight questions on the interpretation of the provisions of the EEC Treaty on taxes having an effect equivalent to customs duties on imports and discriminatory internal taxation, with a view to assessing the compatibility with Community law of national legislation imposing a motor-vehicle tax.
2 The questions arose in proceedings between Manuel José Lourenço Dias and the Director da Alfândega do Porto (Director of the Oporto Customs Office). The latter accused Mr Lourenço Dias of modifying some of the technical characteristics of a motor vehicle without paying the tax to which that modification gave rise.
3 The tax in question was introduced by Decree-Law No 152 of 10 May 1989 (Diário da República, series I, No 107, of 10 May 1989, p. 1858, hereinafter "the Decree-Law"). It is charged in principle on all motor vehicles, whether imported into Portugal or locally assembled or manufactured. However, under an exception provided for by Article 2(2) of the Decree-Law, vehicles with characteristics such as a fixed panel separating the goods compartment from the driver' s and passengers' compartment and in which the goods compartment is fitted with a floor, are considered to be "light goods vehicles" and may be imported into Portugal free of the tax.
4 It appears from the order for reference that the vehicle at issue in the main proceedings was imported into Portugal from France in November 1989 by Automóveis Citroën SA, a company incorporated under Portuguese law. At that time, the vehicle was fitted with a fixed separating panel and a continuous floor. As a result, the importer was not charged the motor-vehicle tax.
5 On 31 December 1989, Automóveis Citroën SA sold the vehicle to the employer of Mr Lourenço Dias, who registered it for the first time on 2 January 1990 as a "light vehicle, type: goods transport". Some months later in July 1990, Mr Lourenço Dias, who was driving the vehicle for his employer, was stopped by the Oporto police, who found that the separation panel had been removed. The police considered that, as a result, the vehicle had become, under the Decree-Law, a "light motor vehicle for passenger transport or multi-purpose use" and hence that motor-vehicle tax should have been imposed on it.
6 Article 1(2) of the Decree-Law provides that the motor-vehicle tax is also to be charged on light goods vehicles which, after having been placed into circulation, are converted into passenger vehicles or multi-purpose passenger and goods vehicles.
7 The Director da Alfândega do Porto held Mr Lourenço Dias responsible for the modification and imposed a fine on him for customs fraud contrary to Article 11 of the Decree-Law on the ground that the changes made to the characteristics determining the tax classification of the vehicle had not been declared.
8 Mr Lourenço Dias contested this and brought an action in the Tribunal Fiscal Aduaneiro in which he sought to be released from the fine.
9 That court deemed it necessary to refer to the Court for a preliminary ruling eight questions on the interpretation of Articles 12 and 95 of the EEC Treaty. The questions read as follows:
"(1) Does the first paragraph of Article 95 of the EEC Treaty authorize Portugal to charge the motor-vehicle tax (' IA' ) on second-hand vehicles imported from the Community, whilst exempting second-hand vehicles purchased in Portugal?
(2) Does the second paragraph of Article 95 of the EEC Treaty permit the application on the basis of a table of specific rates of the Portuguese motor-vehicle tax, which increases sharply as from a specified cylinder capacity in the case of vehicles which are neither assembled nor manufactured in Portugal in such a way as to affect exclusively those that are imported?
(3) Does Article 95 of the EEC Treaty allow Portugal to ensure or attempt to ensure that purchases of motor vehicles are confined to an economical model whose cylinder capacity is between 801 cc and 1 500 cc by granting a reduction in the motor-vehicle tax in the case of vehicles having that cylinder capacity?
(4) Does the second paragraph of Article 95 of the EEC Treaty allow the motor-vehicle tax on imports to differ, as regards the methods of collection and periods for payment, from the tax payable on vehicles manufactured in Portugal?
(5) Does the second paragraph of Article 95 of the EEC Treaty allow Portugal to impose a restriction on the circulation of imported vehicles, without imposing such a restriction on vehicles assembled or manufactured in Portugal, taking into account the fact that imported vehicles may not circulate for longer than 48 hours after being brought into the country?
(6) Does the second paragraph of Article 95 of the EEC Treaty allow Portugal to prescribe a period for the submission to the competent customs office of the documents relating to the importation of a vehicle, without laying down a period for the submission of the relevant customs documents in the case of vehicles assembled or manufactured in Portugal?
(7) Does Article 95 of the EEC Treaty permit Portugal to grant exemption from the motor-vehicle tax in respect of the importation of 'vintage' cars provided certain conditions involving a subjective assessment have been met?
(8) If, on the eve of its accession to the European Economic Community, a Member State imposes an internal tax on specific consumer goods which is charged not only on products imported from the Community but also on products allegedly manufactured in that State, but which are in fact not manufactured in that State or, if they are, the quantities manufactured are so small as to have no impact on the market, does that constitute a covert and disguised infringement of Article 95 of the EEC Treaty? If so, does that tax constitute a charge having an effect equivalent to a customs duty, contrary to Article 12 of the EEC Treaty?"
10 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the observations of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The relevance of the national court' s questions
11 It should be observed in limine that all the parties who submitted observations to the Court cast doubt on the relevance of the questions, or at least of some of them, for the purposes of deciding the case before the national court.
12 In particular, the Portuguese Government argues that the sole basis for the actual dispute before the national court lies in the distinction made by the national tax system between "light motor vehicles intended for passenger transport or multi-purpose use" and "light motor vehicles intended for the transport of goods" and that none of the questions referred is connected with that distinction.
13 In that regard, it is necessary to rehearse and clarify a number of principles relating to the Court' s jurisdiction under Article 177 of the Treaty.
14 The Court has consistently held (see, in the first place, Case 16/65 Schwarze v Einfuhr- und Vorratsstelle Getreide [1965] ECR 877 and, most recently, Case C-147/91 Criminal proceedings against Ferrer Laderer [1992] ECR I-4097, paragraph 6) that the procedure provided for in Article 177 of the Treaty is an instrument for cooperation between the Court of Justice and the national courts.
15 It is also settled law (see, in the first place, Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 25, and, most recently, Case C-186/90 Durighello v INPS [1991] ECR I-5773, paragraph 8), that in the context of that cooperation, the national court, which alone has direct knowledge of the facts of the case, is in the best position to assess, having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment.
16 Consequently, since the questions submitted by the national court concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (see Case C-231/89 Gmurzynska-Bischer v Oberfinanzdirektion Koeln [1990] ECR I-4003, paragraph 20).
17 Nevertheless, in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 21, the Court considered that, in order to determine whether it has jurisdiction, it is a matter for the Court of Justice to examine the conditions in which the case has been referred to it by the national court. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (Foglia v Novello, cited above, paragraphs 18 and 20, and Case 149/82 Robards v Insurance Officer [1983] ECR 171, paragraph 19).
18 In view of that task, the Court considers that it cannot give a preliminary ruling on a question raised in a national court where, inter alia, the interpretation requested relates to measures not yet adopted by the Community institutions (see Case 93/78 Mattheus v Doego [1978] ECR 2203, paragraph 8), the procedure before the court making the reference for a preliminary ruling has already been terminated (see Case 338/85 Pardini v Ministero del commercio con l' estero [1988] ECR 2041, paragraph 11) or the interpretation of Community law or the examination of the validity of a rule of Community law sought by the national court bears no relation to the actual nature of the case or to the subject-matter of the main action (Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6, and, most recently, Durighello, cited above, paragraph 9).
19 It should also be borne in mind that, in order to enable the Court to provide a useful interpretation of Community law, it is appropriate that, before making the reference to the Court, the national court should establish the facts of the case and settle the questions of purely national law (see Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735, paragraph 6). By the same token, it is essential for the national court to explain the reasons why it considers that a reply to its questions is necessary to enable it to give judgment (see, in the first place, Foglia v Novello, cited above, paragraph 17, and, most recently, Joined Cases 98, 162 and 258/85 Bertini v Regione Lazio [1986] ECR 1885, paragraph 6).
20 With this information in its possession, the Court is in a position to ascertain whether the interpretation of Community law which is sought is related to the actual nature and subject-matter of the main proceedings. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.
21 It is in the light of those guidelines that the objections alleging the absence of a connection between the questions referred to the Court for a preliminary ruling in the instant case and the actual dispute on which the national court is called upon to give judgment should be considered.
22 Three matters should be taken into consideration in this regard. In the first place, it appears from the documents provided by the national court itself and from a document annexed to the observations of the public prosecutor that the vehicle whose conversion gave rise to the proceedings was new, having been manufactured and purchased in 1989, and had a cubic capacity of 1 360 cc. Secondly, as regards national law, the Portuguese Government informed the Court at the hearing that, since the separation panel in question had been replaced shortly after it was found to have been removed, motor-vehicle tax is not due and all the national court has to do is to determine the amount of any fine payable, the legal basis for which is to be found in other legal provisions and not in the Decree-Law. Thirdly, the national court expresses its doubts about the compatibility with Community law of certain provisions of the Decree-Law, but has omitted to inform the Court how those provisions are to be applied in the context of the proceedings before it.
23 In the light of those considerations, it is necessary to start by considering the national court' s first, third, fourth, fifth, sixth and seventh questions.
The question concerning the different tax system for imported second-hand vehicles and second-hand vehicles registered in Portugal
24 In its first question, the national court asks whether the first paragraph of Article 95 prohibits a Member State from imposing a motor-vehicle tax on second-hand vehicles imported from other Member States when it is not charged on second-hand vehicles which were new when they were imported or were originally assembled or manufactured in Portugal.
25 It is sufficient to recall in that connection that the motor vehicle which gave rise to the main proceedings was new when it was imported and purchased.
The question concerning the abatements designed to encourage the purchase of vehicles of a particular cubic capacity
26 In its third question, the national court asks whether Article 95 prohibits a Member State from encouraging, by means of a reduction in the amount of the tax payable, the purchase of vehicles whose cubic capacity is between 801 and 1 500 cc at the expense of vehicles with a larger cubic capacity.
27 This question relates to the schedule annexed to the Decree-Law.
28 Even if Mr Lourenço Dias' vehicle had not qualified for the exemption granted for "light goods vehicles", it would qualify for the reduction since its cubic capacity is 1 360 cc.
The question concerning the different period for the payment of the motor-vehicle tax depending on whether the vehicle was imported or of domestic manufacture
29 In its fourth question, the national court asks whether the second paragraph of Article 95 of the Treaty prohibits a Member State from laying down different periods for the payment of a motor-vehicle tax and different methods for collecting that tax depending on whether the vehicle was imported or manufactured in that Member State.
30 That question relates to Article 4 of the Decree-Law, which provides, in the case of vehicles intended for domestic sale which are assembled in Portugal or imported already assembled, that the tax is to be paid in accordance with the general rules on customs debt and deferred payment of import duties. Article 4 further provides that, in the case of motor vehicles manufactured in the country using national components or components treated as such or of vehicles which have been converted within the meaning of Article 1(2), an application for assessment and payment of the tax is to be made to the relevant customs directorate on the basis of the motor-vehicle tax form.
31 The national court infers from this that, in the case of imported vehicles, motor-vehicle tax has, in principle, to be paid within ten days of the notification of the amount due pursuant to Article 8 of Council Regulation (EEC) No 1854/89 of 14 June 1984 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt (OJ 1989 L 186, p. 1). It states that, in contrast, there is no period for payment for vehicles manufactured in Portugal.
32 As the United Kingdom rightly points out, this question is not germane to the determination of the dispute in the main proceedings: the vehicle in question was imported free of motor-vehicle tax in accordance with the national legislation. As a result, the importer did not suffer discrimination at the time when the vehicle was imported. Under Article 4 of the aforementioned Decree-Law, the tax is not chargeable until such time as the vehicle is modified within the meaning of Article 1(2) of the Decree-Law. At that time, the tax has to be assessed and paid on the same terms as are applicable to motor vehicles manufactured in the country using national components and components treated as such.
The question concerning the restriction of the period during which foreign-registered vehicles intended to be definitively imported may circulate
33 In its fifth question, the national court asks whether the second paragraph of Article 95 prohibits a Member State from restricting the circulation of imported vehicles to 48 hours from their entry into Portugal where vehicles assembled or manufactured in Portugal are not subject to any restriction.
34 According to the order for reference, that question relates to Article 5(1) of the Decree-Law. Under that provision foreign-registered motor vehicles intended for definitive importation whose owners are resident or have their registered office in the national territory may circulate only for a period of 48 hours following their entry into Portugal.
35 However, as the national court' s order itself states, the vehicle at issue in this case was registered for the first time in Portugal. It was hence never subject to the restrictions on circulation laid down by Article 5(1) of the Decree-Law.
The question concerning the differing customs formalities for imported vehicles and vehicles assembled in Portugal
36 In its sixth question, the national court asks whether Article 95 debars a Member State from imposing time-limits for carrying out certain customs formalities relating to the importation of vehicles whereas vehicles of national manufacture are exempt therefrom.
37 That question relates to Article 5(2) of the Decree-Law, which provides that the documents relating to the definitive importation of foreign-registered vehicles must be submitted to the customs within 60 days of their entry into Portugal.
38 It should be observed that any discrimination entailed by Article 5(2) of the Decree-Law affects only vehicles which have already been registered abroad. However, as has already been pointed out, the proceedings pending before the national court relate to a vehicle which was registered for the first time in Portugal.
The question concerning the exemption for "vintage" motor vehicles
39 In its seventh question, the national court asks whether Article 95 prohibits a Member State from exempting the importation of "vintage" motor vehicles from a tax when other vehicles do not qualify for such exemption.
40 That question relates to Article 9 of the Decree-Law, which authorizes the importation free of motor-vehicle tax of motor vehicles manufactured no later than 1950, provided that they are of interest from the point of view of the national cultural heritage.
41 Suffice it to say that the motor vehicle in question in this case was manufactured in 1989.
42 In view of the foregoing considerations, there is no need to reply to the first, third, fourth, fifth, sixth and seventh questions since they are manifestly unrelated to the actual nature of the main proceedings.
The question concerning the break in the progressive rate of increase in the table of rates of tax as from a particular cubic capacity
43 In its second question the national court seeks essentially to establish whether the second paragraph of Article 95 prohibits the subjecting of vehicles whose engine size exceeds a particular cubic capacity to a motor-vehicle tax which is several times higher than the progressive tax chargeable on vehicles of smaller engine size where the vehicles liable to the highest rates of tax are all imported, in particular from other Member States.
44 The national court explains that, in the schedule of rates annexed to the Decree-Law, the motor-vehicle tax is almost three times higher for vehicles with a cubic capacity of 1 751 cc than it is for vehicles with a cubic capacity of 1 750 cc. It therefore asks whether, as a result, the Portuguese State is not charging on vehicles imported from other Member States internal taxation such as to provide indirect protection for the domestic vehicle industry, which, it states, manufactures only small-engined cars.
45 As has already been mentioned, the cubic capacity of the vehicle at issue in the main proceedings is 1 360 cc. Regardless of whether motor-vehicle tax will ultimately be chargeable, this rules out in any event application of the increased rate charged on vehicles with a cubic capacity of more than 1 750 cc. Consequently, the fact that such vehicles may be discriminated against is not detrimental to Mr Lourenço Dias or to his undertaking. In that respect, the situation is different from the one which the Court had to consider in Case 112/84 Humblot v Directeur des Services Fiscaux [1985] ECR 1367, Case 433/85 Feldain v Services Fiscaux du Département du Haut-Rhin [1987] ECR 3521 and Case 240/87 Deville v Administration des Impôts [1988] ECR 3513, where the main proceedings related to the supplementary tax which the plaintiffs had to pay because they had cars with a large cylinder capacity.
46 However, in thus raising doubts about the compatibility of that aspect of the Decree-Law with Article 95, the national court seeks in fact to establish whether the whole of a tax system must be held to be discriminatory because certain elements of that system or certain rules for the application of that system are discriminatory.
47 It should be observed in that regard that the tax systems in most Member States are characterized by the extreme diversity with which some products are taxed or qualify for abatements or deductions.
48 The fact that certain categories of products may be subjected to discriminatory treatment cannot have any bearing on the compatibility with Community law of internal taxes charged on other categories of products where those taxes are implied in a non-discriminatory manner. The possibility of discrimination against some products does not necessarily have the effect of rendering the entire tax system incompatible with Community law (see, with regard to discrimination affecting rules on access to public posts, the judgment in Case C-355/89 Barr and Montrose [1991] ECR I-3479, paragraph 19).
49 The reply to the national court' s question should therefore be that the fact that certain elements or certain rules for the application of a system of internal taxation are discriminatory and consequently prohibited by Article 95 of the Treaty does not necessarily mean that the whole of the tax system of which those elements or rules form a part has to be considered to be incompatible with that article.
The question as to the infringement of Articles 12 and 95 of the Treaty
50 In its eighth question, the national court seeks to establish whether, in the absence of similar national products, the tax charged on motor vehicles has to be regarded as a charge having an effect equivalent to a customs duty, contrary to Article 12 of the Treaty.
51 It should be observed in this connection that the national court only describes its doubts because it states that it does not have economic data giving it a precise picture of the Portuguese motor-vehicle sector.
52 However, it should be pointed out that, in answer to a question put by the Court, the Portuguese Government provided it with statistics from which it appears there is indeed a domestic Portuguese motor-vehicle industry, which is moreover not confined to the manufacture of vehicles with a small cylinder capacity.
53 In any event, it should be recalled that the Court has held (Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraph 14) that a charge which is imposed on both imported products and domestic products but in practice applies almost exclusively to imported products because domestic production is extremely small does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 9 and 12 of the EEC Treaty if it is part of a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It therefore constitutes internal taxation within the meaning of Article 95.
54 The motor-vehicle tax, which is applied without distinction to vehicles assembled and manufactured in Portugal and to imported new and second-hand vehicles alike, is part of such a general system of internal charges imposed on categories of products in accordance with an objective criterion, namely cubic capacity.
55 The reply to be given to the national court should therefore be that a motor-vehicle tax applied without distinction to vehicles assembled and manufactured in the Member State where it is levied and to both new and used imported vehicles cannot be considered to be a charge having an effect equivalent to a customs duty on imports prohibited by Article 12 of the EEC Treaty.
Costs
56 The costs incurred by the Portuguese Government, the United Kingdom 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 Tribunal Fiscal Aduaneiro do Porto by order of 18 October 1990, hereby rules:
1. The fact that certain elements or certain rules for the application of a system of internal taxation are discriminatory and consequently prohibited by Article 95 of the Treaty does not necessarily mean that the whole of the tax system of which those elements or rules form a part has to be considered to be incompatible with that article;
2. A motor-vehicle tax applied without distinction to vehicles assembled and manufactured in the Member State where it is levied and to both new and used imported vehicles cannot be considered to be a charge having an effect equivalent to a customs duty on imports prohibited by Article 12 of the EEC Treaty.
