C-232/01

1 — Original language: French. 3 — Belgische Staatsblad of 18 January 1994 (hereinafter 'the 2 — Belgische Staatsblad of 9 January 1954. Royal Decree').

I - 11527

OPINION OF MR LÉGER — CASE C-232/01

2. However, motor vehicles and trailers 6. This version of Article 3 of the Royal driven in Belgium for short periods, with- Decree applies to the facts of the main out being imported by persons resident in proceedings. the country, do not have to be registered in Belgium provided that they bear a regis- tration number issued by the authorities of a country other than Belgium which has acceded to the international conventions on road traffic and the annexes thereto, signed at Vienna on 8 November 1968 and Geneva on 19 September 1949 respectively I I — Facts and proceedings and ratified by the Law of September 1988 and the Law of 1 April 1954, or to the Convention relative to Motor Traffic signed at Paris on 24 April 1926, or bear 7. Mr Van Lent is a Belgian national registration numbers prescribed by these residing in Putte (Belgium). He works as a conventions. No application for regis- civil engineer for a company with head- tration may be submitted in the name of quarters in Luxembourg. The company several persons or in the name of a de facto provided him with a vehicle registered in association. Where various persons are Luxembourg, which was leased to him co-owners of the vehicle, the application from a leasing company also established for registration shall be submitted in the there. Mr Van Lent uses this vehicle both name of the owner who is the principal user for business trips (in Luxembourg and in of the vehicle.' order to attend certain meetings in Antwerp (Belgium)) and for private purposes (to drive home and at the weekend).

'Do Community rules, in particular Article 39 EC (ex Article 48 of the EC Treaty) and Article 10 EC (ex Article 5 of the EC Treaty), preclude a Member State from requiring registration of a vehicle 12. It must be stated from the outset that belonging (1) to a leasing company estab- the question of which Member State has lished in a neighbouring Member State, competence to require the registration of a which is hired out to an employer and used vehicle has not been the subject of harmon- by an employee (2) who resides in the isation within the Community. To date, the first-mentioned Member State, at a dis- only harmonisation measures in the sphere tance, more specifically, of some 200 km of vehicle taxation relate to tax exemptions from his place of employment, where the for certain means of transport temporarily employee in question resides (3) in the imported by non-residents, 5on the appli- first-mentioned Member State during the cation by Member States of taxes on week and uses the vehicle in order to certain vehicles used for the carriage of perform his contract of employment and goods by road 6and on the registration also during his free time, including week- documents for vehicles. 7None of these ends and holiday periods?' directives lays down rules governing the question of the competence of Member States to require the registration of vehicles. As a result, Member States are entitled to decide on the registration and the con- ditions for registration of vehicles used in

'[N]ationals of Member States have in particular the right, which they derive directly from the Treaty, to leave their country of origin to enter the territory of 16. In the Ledoux judgment, in a case another Member State and reside there in similar to the present one, the Court held order to pursue an economic activity. 11 — Ibid, (paragraphs 95 and 76), emphasis added. In para- graph 97 of that judgment, the Court added that it had already 'stated, in Case 81/87 Daily Mail and General Trust [1988] ECR 5483, paragraph 16, that even though the Treaty provisions relating to freedom of establishment are directed mainly to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Provisions which preclude or deter a Member State of origin from hindering the establishment national of a Member State from leaving in another Member State of one of its nationals or of a company incorporated under its legislation which comes his country of origin in order to exercise his within the definition contained in Article 58. The rights guaranteed by Article 52 et seq. of the Treaty would be right to freedom of movement therefore rendered meaningless if the Member State of origin could constitute an obstacle to that freedom even prohibit undertakings from leaving in order to establish themselves in another Member State. The same consider- ations apply, in relation to Article 48 of the Treaty, with regard to rules which impede the freedom of movement of nationals of one Member State wishing to engage in 8 — Judgments in Case 97/83 Melkunie [1984] ECR 2367, gainful employment in another Member State'. paragraphs 9 and 10, and in Case C-121/00 Hahn [2002] 12 — Paragraph 103. ECR I-9193, paragraph 34. 13 — Paragraph 23. 9 — Judgments in Case 127/86 Ledoux [1988] ECR 3741, in Case 143/87 Stanton [1988] ECR 3877, paragraph 13, in 14 — These judgments implement the essential criterion ident- Case C-370/90 Singh [1992] ECR I-4265, paragraph 23, in ified by the judgment in Joined Cases C-267/91 and Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, in C-268/91 Keck and Mithouard [1993] ECR I-6097 con- Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 38 cerning the free movement of workers. See Opinion of and in Case C-190/98 Graf [2000] ECR I-493, paragraph Advocate General Lenz in the Bosman case and of 22. Advocate General Fennelly in the Graf case, together with my own Opinion in Case C-309/99 Wouters [2002] ECR 10 —Judgment in Case C-415/93 Bosman [1995] ECR I-4921. I-1577, paragraphs 242 to 246.

19. The Court next examined the question whether the fact of considering the import 17. Following a traffic check in Belgium, to be permanent and therefore liable for Mr Ledoux was charged with having VAT on the ground that the importer (the unlawfully imported the motor vehicle. employee) had his place of residence in the He was accused of having imported the Member State into which the motor vehicle motor vehicle without paying the value had been brought was capable of introduc- added tax 15relatingto the transaction. The ing an obstacle to the free movement of Community legislation applicable at the workers. 19 The Court expressed the view, time was the Sixth Directive following its analysis, that there could be 77/388/EEC. 16 Under that directive, the an obstacle to the free movement of importation of goods is liable for VAT workers, but referred actual examination unless they are placed under an arrange- of this question back to the national court. ment for temporary importation. Whilst awaiting adoption of Community tax rules defining the scope of this exemption, Member States were allowed to specify the conditions to be complied with in order to qualify for it. 20. The relevant point for the purposes of this case lies in the Court's reasoning which led it to conclude that there was an obstacle to the free movement of workers. The Court held that importation must be regarded as temporary, and consequently, 18. The Court began its examination by the exemption granted, even though the recalling that one of the objectives of that motor vehicle could be used for private exemption was the effective removal of purposes, since such use was ancillary to

business use and was provided for in the pretation of the Sixth Directive 77/388 and contract of employment. 20 The Court not the registration of motor vehicles. I do stated: not share this view. In that judgment, the Court held that the fact that it was imposs- ible, on account of the Belgian legislation, for the worker to benefit from a specific advantage constituted an obstacle to the free movement of workers. The Court's 'If it were not, frontier workers would be reasoning which led it to conclude that effectively prevented from benefiting from there was such an obstacle can thus readily certain advantages granted to them by their be transposed to the present case. employers merely because they resided in the Member State into which the vehicle was temporarily imported. Such workers would thereby be placed at a disadvantage in regard to working conditions compared to their colleagues residing in the country of their employer, which would have a direct effect on the exercise of their right to free movement within the Community.' 21 23. The legislation at issue effectively makes it impossible for the worker resident in Belgium to benefit from the provision of a motor vehicle belonging to a person established in another Member State.

that that entity as owner of the motor Member State, whereas such dissuasion vehicle can apply for registration of the would probably not operate if the contract motor vehicle in question only if it is were offered to him by a national established in Belgium. 22 Thus, the worker employer. 23 cannot register the vehicle, on the ground that he is not its owner, and the owner (the leasing company) also cannot register it, on the ground that it is not resident in Belgium. 27. It seems to me, therefore, that, in the sense contemplated in the Bosman and Graf judgments, the legislation at issue sets preconditions on access by workers resi- 25. As a result, the worker who resides in dent in Belgium to the labour market of Belgium and to whom the provision of a other Member States. motor vehicle is offered has no choice but to waive the offer if he does not wish to become exposed to the risk of criminal proceedings. As the Court has made clear in the Ledoux judgment, that provision of a motor vehicle constitutes part of the worker's remuneration. It follows that the 28. We must now consider whether the legislation at issue causes the worker to be legislation at issue can be justified by deprived of a proportion of the remuner- reasons relating to the general interest that ation offered to him, by the mere fact of his are compatible with the Treaty. place of residence. A contract of employ- ment including such a clause relating to the provision of a motor vehicle to the worker would therefore be less attractive where an employer is established in a Member State other than the Kingdom of Belgium, at least 29. According to case-law, national meas- where the motor vehicle is registered in that ures must fulfil four requirements where same State. they are liable to hinder or make less attractive the exercise of the fundamental freedoms guaranteed by the Treaty by

33. The Tribunal de police (Police Court), 30. The Member States which have sub- Arlon (Belgium) appears to have reached a mitted written observations and the Com- similar conclusion in its judgment of mission argue that the legislation at issue is 12 March 1998. 25 necessary in order, first, to guarantee road safety and, second, to counteract erosion of the basis of tax assessment.

34. The facts were as follows: a person resident in Belgium was accused of having infringed the Royal Decree on the ground that he was driving in the territory of Belgium a motor vehicle belonging to a 31. It seems to me, however, that neither of leasing company established in Lux- these arguments is capable of justifying the embourg. The Tribunal de police, Arlon requirement to register the vehicle, still less stated: the criminal penalty attached to the breach of that requirement in the present case. It appears obvious to me that it must first and foremost be possible for registration to take place in order for the objectives pursued by the registration requirement to be met. Whatever objectives may be invoked, they '[t]he Public Prosecution Office appears cannot be attained in a case such as the therefore to consider that, notwithstanding present one, since as we have seen, regis- the facts, registration of the motor vehicle tration is impossible. in Belgium was obligatory and, therefore, necessarily, possible.' 24 — Judgment in Case C-5S/94 Cebhard [1995] ECR I-4165, paragraph 37. See also judgments in Cases C-180/89 Commission v Italy [1991] ECR I-709, paragraph 18, 25 — Ministère public v Devaux, judgment No 981345. Avail- C-106/91 Ramrath [1992] ECR I-3351, points 29 and 30) able on the Internet at http://www.demine.com/iurinews/ and Kraus (paragraph 32). immajurisp.htm.