Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

62001J0383 European Court reports 2003 Page I-06065 5
of goods may be assessed in the light of Article 28 EC.
26 The Danish Government submits that the registration duty cannot be regarded as a quantitative
restriction on imports prohibited under Article 28 EC. It argues that the assertion in paragraph 13 of
Commission v Denmark has never been reiterated by the Court in subsequent judgments. On the contrary,
it follows from settled case-law that barriers of a fiscal nature to the free movement of goods must be
assessed in the light of Articles 23 EC to 25 EC or Articles 90 EC to 93 EC. In the main proceedings,
however, the registration duty on new motor vehicles, which is internal taxation, neither discriminates
against imported products nor protects domestic production, with the result that it is not prohibited by
Article 90 EC.
27 As to the remainder, if the Commission were to consider that the registration duty is excessively high,
it would be for it to draw up a proposal for a measure on the basis of Article 93 EC with a view to
harmonising national legislation.
28 In the alternative, the Danish Government contends that paragraph 13 of Commission v Denmark must
be interpreted as meaning that the prohibition on quantitative restrictions on imports, laid down in Article
28 EC, relates only to fiscal provisions which have such an impact on intra-Community trade that, as far
as the taxed product is concerned, that trade is reduced to nothing or becomes insignificant. However, that
is not the case in the main proceedings since the number of motor vehicles per inhabitant in Denmark is
comparable to that in other Member States.
29 The observations of the Italian and Finnish Governments are to the same effect.
30 The Commission considers that barriers of a fiscal nature which do not have an effect equivalent to a
customs duty fall, as a rule, under Article 90 EC, which is a lex specialis as opposed to the general
prohibition on barriers to trade, laid down in Article 28 EC. Barriers of a fiscal nature which are not
covered by Article 90 EC - or by Articles 23 EC to 25 EC - may therefore be caught by Article 28 EC
where they impede the free movement of goods. By contrast, according to the case-law of the Court, a
barrier of a fiscal nature cannot fall at the same time under the two provisions.
31 As a consequence, it is for the national court to assess, in the light of the facts in the main
proceedings, whether the registration duty on new motor vehicles is of a level such that it impedes the
free movement of goods. The Commission notes, in that regard, that it is apparent from the order for
reference that a considerable number of motor vehicles are registered each year in Denmark, that the
variations in the number of registrations appear to be purely short-term and that the number of motor
vehicles per inhabitant is at the same level as in other countries of the Organisation for Economic
Cooperation and Development (OECD). It is therefore not established that the Danish legislation at issue
in the main proceedings impedes the free movement of goods.
Reply of the Court
32 The scope of Article 28 EC does not extend to the obstacles to trade covered by other specific
provisions of the Treaty and obstacles of a fiscal nature or having an effect equivalent to customs duties,
which are covered by Articles 23 EC, 25 EC and 90 EC, do not fall within the prohibition laid down in
Article 28 EC (see Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others
[1992] ECR I-1847, paragraph 20, and Dounias, paragraph 39).
33 Furthermore, as regards the scope of Articles 25 EC and 90 EC, it is settled case-law that provisions
relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be
applied together, with the result that, under the system established by the Treaty, the same charge cannot
belong to both categories at the same time (see Case C-234/99 Nygård [2002] ECR I-3657, paragraph 17).
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