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	Číslo (Kód CELEX): Number (CELEX Code):		61990J0343

	Název: Title:		JUDGMENT OF THE COURT (FIFTH CHAMBER) OF 16 JULY 1992. MANUEL JOSE LOURENCO DIAS V DIRECTOR DA ALFANDEGA DO PORTO. REFERENCE FOR A PRELIMINARY RULING: TRIBUNAL FISCAL ADUANEIRO DO PORTO - PORTUGAL. INTERPRETATION OF ARTICLES 12 AND 95 OF THE EEC TREATY - MOTOR VEHICLE TAX. CASE C-343/90.

	Publikace: Publication:		REPORTS OF CASES 1992 PAGES I-4673

	Předmět (klíčová slova): Keywords		TAXATION;

	Související předpisy: Corresponding acts:		157E095;157E012

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Schwarze Case 16/65 Schwarze v Einfuhr- und Vorratsstelle Getreide [1965] ECR 877 · Laderer Case 147/91 Criminal proceedings against Ferrer Laderer [1992] ECR I-4097 · Pigs Marketing Board Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347 · Durighello Case C-186/90 Durighellos v INPS [1991] ECR I-5773 · Gmurzynks-Bscher Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Köln [1990] ECR I-4003 · Foglia II Case 244/80 Foglia v Novello [1981] ECR 3045 · Robards Case 149/82 Robards v Insurance Officer [1983] ECR 171 · Meilicke Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871 · Mattheus Case 93/78 Mattheus v Doego [1978] ECR 2203 · Pardini Case 338/85 Pardini v Ministero del commercio con l’estero [1988] ECR 2041 · Salonia Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563 · Bertini Joined Cases 98, 162 and 258/85 Bertini v Regione Lazio [1986] ECR 1885 · Barr Case C-355/89 Barr and Montrose [1991] ECR I-3479 · Co-Frutta Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085


	Plný text: Fulltext:		Ne

Fakta:
In 1989, the employer of Mr Lourenço Dias bought a car which had been imported into Portugal from France. The vehicle was a equipped with a fixed panel separating the goods compartment from the driver’s and passenger’s compartment. On this ground, it was considered a “light goods vehicle” under the applicable tax legislation and as such it was exempt from any importation tax. Some months after the purchase, Mr Lourenço Dias 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 said tax legislation, a “light motor vehicle for passenger transport of multi-purpose use” and hence that motor-vehicle tax should have been imposed. 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 the tax legislation.
Mr Lourenço Dias contested this an brought an action in the Tribunal Fiscal Aduaneiro (Customs Court) do Porto in which sought release from the fine. He contended,
inter alia
, that the relevant tax legislation was incompatible with Community law. The Tribunal stayed the proceedings and referred to the Court of Justice eight questions on the interpretation of Articles 12 and 95 (see below).

Názor soudu a komentář:
The Court only answers two of the questions referred to it and refuses to answer the remaining six on the ground that they are irrelevant for the main proceedings in the national court and that it therefor does not have jurisdiction. “In that regard, it is necessary to rehearse and clarify a number of principles relating to the Court’s jurisdiction.”
Article 177 of the Treaty institutes a system of cooperation between the national courts and the Court of Justice in the administration of Justice (
Schwarze; Laderer
). Under this system, the national court in principle enjoys discretion as to whether and when to make a reference to the Court of Justice (
Pigs Markting Board; Durighello
); provided that the questions referred concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (
Gmurzynska-Bscher
). The Court has, however, in its case-law also asserted the right “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 II; Robards; Meilicke
). The Court has therefore refused to give a ruling on the interpretation of measures not yet adopted by the Community institutions (
Mattheus
), where the main proceedings before the national courts have already been terminated (
Pardini
) or where the answer to the question referred bears no relation to the actual nature of the case of to the subject matter in the main action (
Salonia
). Furthermore, the Court has developed the principle that the national court “should establish the facts of the case and settle the questions of purely national law” (see e.g.
Irish Creamery
, though less strict: “might be convenient”) as well as “explain the reasons why it considers that a reply to its questions is necessary to enable it to give judgement” (
Foglia II; Bertini
). “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 judgement.” The Court thus appears to apply stricter requirements as to the admissibility of a preliminary ruling. While in earlier judgements it had given the national court a wide discretion to make the assessment whether and when to make a reference the Court has subsequently reasserted its own right to examine as to whether a preliminary ruling was necessary.
With respect to the questions referred to it, the Court refuses to give a ruling on several of them on the ground that they manifestly have no relation to the main proceedings because they concern other types of cars or other types of transactions than those concerned in the main proceedings. The Court in detail only addresses two questions: (1) 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; and (2) whether, in the absence of similar national products, the tax charged on motor vehicles has to be regarded as a charge having an equivalent effect to a customs duty, contrary to Article 12 of the Treaty.
While the first question did not have any relation to the case at hand either, given that the vehicle concerned did not fall into the cubic capacity referred to, the Court understands it as to seek in fact to establish whether the whole 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. The Court answers this question in the negative, arguing that with a view to the extreme diversity with which some products are taxed or qualify for abatements or deductions, “the possibility of discrimination against some products does not necessarily have the effect of rendering the entire tax system incompatible with Community law” (
Barr
).
With regard to the second question, the Court, relying on its established case-law (
Co-Frutta
), points out “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 products. It therefore constitutes internal taxation within the meaning of Article 95.” The Court thus finds that charges which operate covertly discriminatory against imports from other Member States can, under Article 95, be justified on “objective grounds unrelated to any discrimination based on nationality” if the form part of a system of internal taxation.

Shrnutí (Summary of the Judgment):
1. IN THE FRAMEWORK OF THE PROCEDURE FOR COOPERATION BETWEEN THE COURT OF JUSTICE AND THE COURTS OF THE MEMBER STATES PROVIDED FOR BY ARTICLE 177 OF THE TREATY, THE NATIONAL COURT, WHICH ALONE HAS DIRECT KNOWLEDGE OF THE FACTS OF T7HE 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. CONSEQUENTLY, WHERE THE QUESTIONS PUT BY THE NATIONAL COURT CONCERN THE INTERPRETATION OF A PROVISION OF COMMUNITY LAW, THE COURT IS, IN PRINCIPLE, BOUND TO GIVE A RULING. NEVERTHELESS, IT IS A MATTER FOR THE COURT OF JUSTICE, IN ORDER TO DETERMINE WHETHER IT HAS JURISDICTION, TO EXAMINE THE CONDITIONS IN WHICH THE CASE HAS BEEN REFERRED TO IT. 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.

2. IN ORDER TO ENABLE THE COURT OF JUSTICE TO PROVIDE A USEFUL INTERPRETATION OF COMMUNITY LAW UNDER ARTICLE 177 OF THE TREATY, 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. 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.

3. 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. IN A SITUATION IN WHICH, IN MOST MEMBER STATES, THE TAX SYSTEMS ARE CHARACTERIZED BY THE EXTREME DIVERSITY WITH WHICH SOME PRODUCTS ARE TAXED OR QUALIFY FOR ABATEMENTS OR DEDUCTIONS, THE FACT THAT SOME CATEGORIES OF PRODUCTS MAY SUFFER 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 THEMSELVES APPLIED IN A NON-DISCRIMINATORY MANNER.

4. 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 TREATY WHERE IT FORMS 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 CONSTITUTES INTERNAL TAXATION WITHIN THE MEANING OF ARTICLE 95.

Plný text judikátu (Entire text of the Judgment):