C-297/89

RYBORG

OPINION OF MR ADVOCATE GENERAL TESAURO :: delivered on 27 November 1990 '

Mr President, thereby arising — it would only have arisen Members of the Court, if he had transferred his residence to Denmark, as the Danish authorities them­ selves told him by letter of 6 April 1982.

1. The preliminary questions submitted by the Danish Højesteret relate to the interpre­ tation of Article 7(1) and Article 10(2) of Council Directive 83/182 of 28 March 1983 on tax exemptions within the On 17 January 1984, Mr Ryborg's new car Community for certain means of transport was confiscated on the ground that he had temporarily imported into one Member illegally imported it into Denmark, that is to State from another. ' say without declaring it to the customs authorities and registering it in Denmark, and for using it within Danish territory from 12 November 1982 to 17 January 1984 without having paid the applicable taxes. 2. I will briefly summarize the facts which gave rise to these proceedings, they being particularly relevant to identification of the applicable legislation.

I think, however, that I should first consider briefly the problem of the applicability of the directive in question ratione temporis, a problem which was discussed at length at the hearing. The events underlying the main 3. In the criminal proceedings brought proceedings occurred, as I have indicated, against him, the Højesteret (the court from 12 November 1982 to 17 January before which Mr Ryborg brought an appeal 1984. Directive 83/182, which is dated after the case had already been decided by 28 March 1983, was to enter into force no the Kriminalret, Sønderborg, and by the later than 1 January 1984 and was Vestre Landsret) has referred three implemented in Danish law by an order of questions to this Court for a preliminary 30 January 1984, which entered into force ruling. In the first question, the Court is on 1 February 1984. requested to establish the State of normal residence, within the meaning of the second subparagraph of Article 7(1) of Directive 83/182, of a citizen of a Member State B In principle, it follows that the directive in who has declared that he has moved to question has been applicable in Denmark as another State A, where he works and has from the date of entry into force of the established his residence, given that, for implementing order, and in any event since more than a year, he has spent nearly every 1 January 1984 for the provisions having night and many weekends with a woman direct effect. friend in State B. The question has been submitted in two slightly differing versions, to take account of the dissimilar findings of fact made by the Kriminalret and the Vestre However, the Danish Government Landsret; the two versions differ as regards contended at the hearing that the legislation the exact number of nights and weekends in force in Denmark even before the spent by Mr Ryborg at his friend's house. adoption of the directive in question was already in conformity with the directive and, therefore, that the directive was to be regarded as applicable in Denmark as early as 28 March 1983.

from the directive. Indeed, I consider that, Community legislation in order to as regards the period within which the harmonize cases of exemption, and, pending events underlying the main proceedings its entry into force, the national provisions occurred, the directive of which the national of the Member States continue to be court seeks an interpretation was applicable applicable — provisions which, as the Court only from 1 January 1984 in the case of the itself has stated, 'must observe the limits set provisions having direct effect and from by the rules of Community law which they 3 1 February 1984 in the case of the serve to implement'. The Court went on to remaining provisions. say that 'the Member States do not enjoy a complete discretion in implementing the exemptions under Article 14 of the Sixth Council Directive, for they have to observe the fundamental objectives of the harmon­ In view of the foregoing and of the ization of value added tax such as, in particular features of the problem particular, to facilitate the free movement of confronting the national court, I consider persons and goods and to prevent cases of 4 that the question referred to the Court may double taxation'. be deemed to be whether, under the applicable Community VAT legislation, a citizen of a Member State B who is resident in State A, where he is employed and has a house, is required to register his car in State B because, with effect from a particular date, he has spent, over a period exceeding Directive 83/182 represents a first step one year, nearly every night and weekend at towards harmonization in this area and the house of a woman friend in State B. provides for certain cases of temporary importation of means of transport in which the Member States are required to grant an exemption. An essential precondition for the exemption is that the importer must have his 5. Having thus reshaped the first question normal residence in a Member State other submitted by the national court, I would than the State of temporary importation. observe that until the entry into force of Directive 83/182 the only rules which could be referred to were those laid down by the 2 Sixth VAT Directive, which makes the chargeable event for imports the mere entry of the goods into the State in question (Article 10(3)). The inflexibility of that rule is mollified by Article 14(l)(c), which General rules for determination of residence requires the Member States to grant an are laid down in Article 7; the first exemption from VAT for imports of goods subparagraph of Article 7(1) provides that declared to be under temporar)' importation normal residence means 'the place where a arrangements 'under conditions which [the person usually lives, that is for at least 185 Member States] shall lay down for the days in each calendar year, because of purpose of preventing . . . any possible personal and occupational ties', personal ties evasion, avoidance or abuse'. Anicie 14(2) provides for the subsequent adoption of 3 — Case 249/84 Ministire publique v Profant [1985] ECR 3237, paragraph 23. 4 — Case 127/86 Criminal Proceedings against Ledoux [1988] 2 — Directive 77/388, OJ 1977 L 145, p. 1. ECR 3741, paragraph 11, and Profant, supra, paragraph 25.

As far as the latter concept is concerned, it First, as regards the period before the entry need only be recalled that the Court, in the into force of Directive 83/182, the relevant judgment in Ledoux cited earlier, made it provisions of the Sixth VAT Directive, as clear that an import is to be classified as interpreted by the Court, support the temporary where it can be deduced from statement that the temporary import of the facts that the goods in question will motor vehicles into a Member State is subsequently be re-exported and that there subject to the conditions imposed by that 6 is no fraudulent intent: that is equivalent to State, provided of course that the funda­ mental principles laid down by the Treaty 5 — United Nations Treaty Series, Volume 282, p. 249. are observed and double taxation is avoided. 6 — Supra, paragraph 15.

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RÌ'BORG

linking the imposition of the tax, essentially, stays alternately in the States in question. with something very similar to 'normal The reasoning underlying that provision is residence'. quite clear: the intention is to accord favourable treatment to a citizen who has his family in one Member State and, for reasons of employment, is obliged to reside in another State; and that is the case, This is further confirmed in the judgment in therefore, regardless of the fact that he Profant, in which the Court established an resides in the State with which he has even clearer link between the temporary personal links at least 185 days per year as nature of the import and the precarious required by the first subparagraph of Article 7 nature of the residence. 7(1).

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OPINION OF MR TESAURO — CASE C-297/89

That approach is supported by the Admittedly, having regard to the facts of consistent case-law of the Court concerning the case, it is not possible to say, as from the definition and determination of 1982, precisely how many days he spent in residence, a concept which has been Germany and how many days (or rather clarified on several occasions with respect to nights) he spent in Denmark. But that may matters of social security, an area in which become entirely irrelevant in so far as there residence is governed by provisions is nothing whatsoever to prove that he analogous to those of the first subparagraph intended to move his centre of interests, and 8 of Article 7(1). In that connection, it therefore his residence, to Denmark. The should be remembered that the Court has volitional factor, which is not in itself defined as a person's residence the place 'in decisive, may in fact contribute to the classi­ which [he] has established the permanent fication of a place where someone stays as 9 centre of his interests' and that, for proof habitual and therefore as a residence, where of residence, it is necessary to take account it is not possible clearly to distinguish one of all factual circumstances which constitute place from others. 10 residence.

8. Now, once residence has been defined as 'a person's habitual or permanent centre of interests', it is clear that occupational links The competent Danish authorities based and personal links — in particular the their contentions on the fact that Mr number of days (or nights) spent in a Ryborg's relationship with his Danish friend particular place in the course of a involved the transfer of his residence from year — are all to be regarded as relevant Germany to Denmark, thus determining factors, individually and collectively, in that his circumstances constituted a case of determining a person's normal residence for cohabitation and, as such, could be the purpose of granting an exemption upon assimilated to marriage. temporary importation.

and, moreover, there is nothing in the 9. In view of the foregoing observations, I documents before the Court to show that am minded to conclude that Mr Ryborg Mr Ryborg manifested any intention to never transferred his 'normal residence' to move permanently into his friend's house. Denmark and that he is therefore still resident in Germany, so that he is not required to declare and register his car in Denmark: his stays in that country in fact involve, from the standpoint appropriate to this case, a temporary impon for private purposes, let us even say for leisure purposes, which rules out the existence of the 'personal ties' required by both the first That is not all: the Danish authorities and second subparagraphs of Article 7(1). contend that Mr Ryborg transferred his residence to Denmark as from 12 November 1982, the date on which, as I have said, he crossed the frontier for the first lime in his new car, a fact which was also confirmed at the hearing. This is indeed a strange coincidence, which cannot but For the sake of completeness, I will say at cause surprise: Mr Ryborg's personal links, this stage that in the course of the hearing a and therefore the 'transfer' of his residence, profound disagreement became apparent came into being only when he purchased a between the Commission and the Danish new vehicle and used it for the first time in Government regarding the rule applicable in Danish territory. Denmark for determining residence. According to the Commission, only Article 9(3) is applicable, which, as will be recalled, provides that a person is regarded as resident in Denmark if he remains there at least one year or 365 days within a period of two years. The Danish Government, on the other hand, considers that provision to The fact is, it seems to me, that the Danish be supplementary to Article 7. authorities are confusing the chargeable event (residence in Denmark) and the entry of the goods (the motor vehicle) into Denmark, and they even treat the two points in time as the same. Moreover, they adopted that approach only when he bought a new car but, curiously, not at an earlier I consider that it is necessary, in any event, stage when he likewise crossed the frontier to refer to Article 7 to identify the in his old car, which was also registered in components of the [Community] concept of Germany. And in fact, no other factor normal residence. In any event, even if, as prompts the conclusion that Mr Ryborg first the Commission maintains, the rule established stable emotional ties in Denmark applicable to the present case is only Article on 12 November 1982 — links of such 9(3) and not Article 7(1), albeit subject to a nature as to support the view that he the limitations and according to the had transferred his residence to meaning used here, the same conclusion Denmark — except the fact that he crossed would be reached anyway. In fact, the the frontier in a car registered in Germany observations so far made concerning deter­ some days earlier. mination of residence, in particular the

10. The answer to the first of the three questions in these proceedings, as outlined in the foregoing considerations, makes it unnecessary, at least for the purpose of determining the dispute before the national It seems to me very doubtful that the obli­ court, to consider the second and third gation in question relates not only to questions. procedural difficulties but also to difficulties of interpretation — thus involving the very interpretation of the directive by the competent authorities of the various Member States — since, in such circum­ However, I think I must, for the sake of stances, it will always be for this Court to completeness and having regard to the decide as to the correct interpretation of the division of powers between the Community provisions of the directive. Court and the national court under Article 177, also give an answer to those questions, which, it will be remembered, are whether Article 10(2) of Directive 83/182 imposes on the two Member States concerned an absolute obligation to consult each other, whenever a specific case arises; and whether Furthermore, the fact that the Member that provision has direct effect. States are to 'take the necessary decisions by mutual agreement' and the reference to the Community directives on mutual assistance seems rather to support the view that the reference is to procedural decisions in the I would point out in the first place that, broad sense and not to decisions on specific according to the provision in question, individual cases. where 'the practical application of [the] directive gives rise to difficulties, the competent authorities of the Member States concerned shall take the necessary decisions by mutual agreement, particularly in the light of the conventions and Community The foregoing observations therefore directives on mutual assistance'. prompt me to conclude that the obligation of cooperation referred to in Article 10(2) does not involve an obligation of consul­ tation between Member States concerning each specific case but rather a more general The very wording of the provision shows obligation enabling consistent decisions to that there is an obligation for Member be arrived at where the application of the States to cooperate, if and when difficulties directive in question gives rise to procedural arise in the practical application of the difficulties of an administrative nature.

2) The obligation laid down by Article 10(2) of Directive 83 / 182 does not require consultation regarding every individual practical case in which difficulties arise in applying the directive.

3) The provision in question does not have direct effect.'

12 — See for example lhe ludgmenis in Case 148/78 Ram [1979] FCR 1629, Case 8/81 Bedrr [1982] LCR 53 and Case 31/87 GAmeden Beenljes [1988] ECR 4635

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