C-12/02

GRILLI

O P I N I O N O F ADVOCATE GENERAL LÉGER delivered on 15 May 2003 1

1. This request for a preliminary ruling 3. Paragraph 22(1)(1) and (2) of the StVG concerns the interpretation of Article 29 provides: EC. The Bayerisches Oberstes Landesger- icht (Supreme Court of Bavaria) (Germany) wishes to know whether that provision precludes national legislation which pro- hibits, on pain of criminal penalties, the use within the Member State concerned of a '(1) Anyone who, for an unlawful purpose: vehicle with temporary number plates issued by the competent authorities of the Member State to which that vehicle is intended to be exported. 1. Attaches to a motor vehicle or trailer for which a number plate has not been issued or which has not been registered a number plate resembling an official number plate;

Relevant national legislation

2. In Germany, privately-owned vehicles shall, unless the offence is punishable must be registered in order to be used on by a heavier penalty under any other German territory. The national provisions provision, be sentenced to up to one covering the administrative procedure for year's imprisonment or a fine. the registration of such vehicles are con- tained in the Straßenverkehrsgesetz (Road Traffic Act; the 'StVG') and in the Straßen- verkehrs- Zulassungs-Ordnung (Motor Vehicle Registration Order; 'the StVZO'). (2) The same penalty shall be imposed on any person using on the public highway 1 — Original language: French. or in a public place a motor vehicle or

I-11587

'(2) Anyone who intentionally or negli- 7. Mr Grilli is an Italian national with a gently vehicle sales business in Italy. In August I-11588

GRILLI

2000, he travelled to Germany to buy there but that his error was inevitable because of a used vehicle, to which he attached the ambiguous contents of the German- temporary number plates issued by the Italian Agreement of 22 December 1993 on Italian administrative authorities. the mutual recognition of temporary number plates and road test plates (here- inafter 'the German-Italian Agreement'). 2

8. During his return journey to Italy in that 11. The prosecution appealed on a point of vehicle, the German police checked Mr law against that decision to the Bayerisches Grilli and confiscated the Italian temporary Oberstes Landesgericht, which considered number plates. On the same day German that Mr Grilli had been wrongly acquitted. 'export plates' were issued to him, which he In its order for reference, 3 the national attached to the vehicle, and he continued court stated that the German-Italian Agree- his journey to Italy. ment allows only the transfer of vehicles with Italian temporary plates from Italy to Germany and not in the opposite direction as occurred in this case.

9. As a result of that check, criminal proceedings were brought against Mr Grilli 12. The referring c o u r t , h o w e v e r , and led to his being sentenced by the expressed doubts as to the possible incom- Amtsgericht Ebersberg (Local Court, patibility of Article 29 EC with a prohib- Ebersberg) (Germany) to a fine of DEM 1 ition such as the one in this case. In that 500 for wrongful use of number plates court's view, the temporary number plates contrary to Paragraph 22(1)(1) and (2) of provided for by the German-Italian Agree- the StVG and Paragraph 18 combined with ment are intended to facilitate exports or Paragraph 69a(2)(3) of the StVZO. imports between the two Member States. The prohibition on attaching Italian tem- porary number plates to a vehicle pur- chased in Germany in order to transfer it to Italy could amount to a measure having equivalent effect to a quantitative restric- tion on exports. 4

16. It is true, as the Commission pointed out, 6that the national court has provided the Court with little information on the factual and legal background. In my view, however, it is possible for the Court to provide guidance on the interpretation of Community law. 'Is Article 29 EC to be interpreted as precluding a national rule that makes it a criminal offence for an Italian national who obtains a temporary registration number from the competent Italian authorities to attach number plates bearing that number to a vehicle offered for sale in Germany, and then drive that vehicle on the German 17. I shall examine the two parts of the public highway towards Italy?' question referred by the national court.

5 — Case C-193/94 [1996] ECR I-929. 6 — See its written observations, paragraph 16 et seq.

I - 11590

GRILLI

21. According to settled case-law, that provision of the Treaty prohibits 'national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a 19. In the absence of Community rules on difference in treatment between the the matter, the Member States alone are domestic trade of a Member State and its competent to determine the statutory con- export trade in such a way as to provide a ditions governing the administrative pro- particular advantage for national produc- tion or for the domestic market of the State in question at the expense of the production 7 — The Commission states that there are only common or of the trade of other Member States'. 13 provisions concerning certain conditions relating to the registration of vehicles, but not those relating to this case (see its written observations, paragraph 20). 8 — Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of 11 — Bilateral agreements on reciprocity, such as the German- transport temporarily imported into one Member State from Italian Agreement, may be concluded covering the require- another (OJ 1983 L 105, p. 59). ments for temporary registration. 9 — Council Directive 93/89/EEC of 25 October 1993 on the 12 — See Case 97/83 Melkunie [1984] ECR 2367, paragraphs 9 application by Member States of taxes on certain vehicles and 10, and Case C-121/00 Hahn [2002] ECR I-9193, used for the carriage of goods by road and tolls and charges paragraph 34. for the use of certain infrastructures (OJ 1993 L 279, p. 32). 13 — See Case 15/79 Groenveld [1979] ECR 3409, paragraph 7, That directive was annulled by a judgment of 5 July 1995 in taking the opposite view to the Opinion in that case of Case C-21/94 Parliament v Council [1995] ECR I-1827. It Advocate General Capotorti, who had applied the defini- continues, however, to apply until the Council adopts new tion in Case 8/74 Dassonville [1974] ECR 837 to legislation in that respect. Articles 28 EC and 29 EC without making any distinction 10 — Council Directive 1999/37/EC of 29 April 1999 on the (paragraph 3). See, also, Case C-80/92 Commission v registration documents for vehicles (OJ 1999 L 138, p. 57). Belgium [1994] ECR I-1019, paragraph 24, and Case The Member States have until 1 June 2004 to transpose C-209/98 Sydhavnens Sten Sc Crus [2000] ECR I-3743, that directive into national law. paragraph 34.

26. Given the preceding matters, it is for 23. It is clear from the order for reference the national court to examine whether, in that the German legislation requires that a actual fact, the detailed rules laid down by used vehicle, purchased in Germany and the German legislation for the issue of being used there, is to carry temporary temporary number plates are compatible number plates issued by the German auth- with Community law, and to do so in the orities and that is so even if the vehicle is light of the conditions deduced from the intended for export. 15 above-cited case-law. The national court must thus compare the detailed rules laid down by the German legislation for the administrative procedure of the registration of vehicles in Germany with those laid down for the administrative procedure of the registration of vehicles in Germany, but 24. Indeed, the national court stated that for the purpose of their export to another the German legislation prohibits a situ- Member State. ation, such as Mr Grilli's, in which tem- porary number plates issued by the com- petent Italian authorities were attached to a vehicle purchased in Germany for the purpose of its transfer to Italy.

— creates a difference in treatment between the domestic trade of a State and its external trade,

28. If such is the case, that is to say if the national legislation amounts to a measure having equivalent effect to a quantitative restriction on exports, the national court — gives rise to an advantage for that will then have to consider whether it is State's national trade at the expense of justifiable under Article 30 EC, which that of another Member State and provides for the circumstances by which a cannot be justified under Article 30 Member State may find it necessary to EC, derogate from the free movement of goods.

then such national rule must be regarded as a measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC. 29. In particular, the referring court will have to ascertain whether the national legislation can be justified on grounds of public policy or public security. It will have to establish that the national legislation is necessary to attain the intended purpose and that it is not arbitrary discrimination or The criminal penalties laid down by the a disguised restriction on trade between German legislation Member States. 18

17 — See my Opinion in Sydhavnens Sten Sc Grus, cited above, point 115. 31. In its order for reference, the national 18 — See Case 50/85 Schloh [1986] ECR 1855, paragraph 13. court expresses doubts as regards the

I - 11593

OPINION OF MR LÉGER — CASE C-12/02

35. In this case, Mr Grilli, who attached temporary number plates which had been properly issued by the competent Italian 33. Thus, in Skanavi and Chryssanthako- authorities, is treated by the German legis- poulos, cited above, which concerned the lation in the same way as a person driving a requirement to exchange a driving licence vehicle with forged or falsified number on the transfer of residence to another plates. As a result, he can be sentenced to Member State, the Court observed that 'the criminal penalties, like imprisonment or a treatment, by the national legislation in fine, in accordance with the provisions of question, of a person who has failed to the StVG. have a licence exchanged as if he were a person driving without a licence, thereby causing criminal penalties, even if only financial in nature,... would also be dispro- portionate to the gravity of that infringe- ment in view of the ensuing con- sequences'. 20

36. It is for the national court to consider in the light of Skanavi and Chryssanthako- poulos whether the criminal penalties laid 34. The Court has also ruled that a crimi- down by the national legislation for nal sentence, even other than imprison- infringement of its requirements are dis- ment, can have consequences for anyone's proportionate in relation to the gravity of trade or professional activity. It added that the offence inasmuch as they limit the 'as the national court has pointed out, a exercise of freedom of movement under the Treaty. 19 — See, in particular, Case C-265/88 Messner [1989] ECR 4209, paragraph 14. 20 — Paragraph 37. 21 — See Skanavi and Chryssantbakopoulos, paragraph 38.

I - 11595