CJEC, 3rd chamber, June 12, 1986, No 50-85

THE COURT (third chamber)

1 By a judgment of 1 february 1985, which was received at the court on 21 february 1985, the juge de paix of the third canton of Schaerbeek referred to the court for a preliminary ruling under article 177 of the eec treaty two questions on the interpretation of articles 30 and 13 of the treaty with regard to the approval and registration formalities for imported vehicles laid down by belgian legislation.

2 Those questions were raised in proceedings brought by mr Schloh, an official of the council of the european communities in Brussels, against auto controle technique sprl of Schaerbeek, hereinafter referred to as ' the testing agency '.

3 In january 1979 mr Schloh purchased a ford granada estate car in the federal republic of Germany; under belgian legislation an estate car is treated as a voiture mixte, that is to say a vehicle designed for the transport of passengers and goods.

4 Mr Schloh obtained a certificate of the vehicle ' s conformity to the vehicle types approved in Belgium on 13 february 1979 from the ford dealer in Antwerp. On 20 march 1979 he took his car to the testing agency in order to establish prior to the vehicle ' s registration - as required by article 23 (2) (1) (c) of the royal decree of 15 march 1968, as amended - whether its condition complied with the safety and maintenance requirements. The vehicle was registered two days after the test, namely on 22 march 1979, and at that time mr Schloh paid a first fee of bfr 500.

5 By a letter dated 26 march 1979 the testing agency requested mr Schloh to submit his car on 5 april for a second roadworthiness test required pursuant to article 23 (2) (1) (e) of the royal decree of 15 march 1968, as amended. In reply to a question put to it by the court, the belgian government has stated that the purpose of the second test was that the owner of the vehicle should submit a written declaration certifying that the use of the vehicle was such as to exempt it from annual roadworthiness tests for the first four years.

6 In a letter dated 2 april 1979 mr Schloh submitted a declaration on the use of the vehicle to the testing agency but also stated that the second test was unnecessary in his view because it was not required by the legislation. Nevertheless, in order to obtain the test certificate, which any vehicle driven with belgian plates must carry, mr Schloh submitted his car on 11 june 1979 and once again paid a fee of bfr 500.

7 There followed an exchange of correspondence with the belgian minister for transport, who took the view that the procedure followed in mr Schloh ' s case was lawful, and two other actions which were dismissed for procedural reasons. By summons filed on 12 april 1983 with the juge de paix of the third canton of Schaerbeek, mr Schloh brought an action for reimbursement of the fees totalling bfr 1 000 collected by the testing agency.

8 The juge de paix thereupon decided to submit the following questions for a preliminary ruling:

' (1) Are articles 30 and 13 of the treaty establishing the european economic community to be interpreted as meaning:

(a) That a legal provision of a member state whereby a new estate car which was manufactured in and imported from another member state and has been placed on the road after undergoing a roadworthiness test is required to undergo a further test several days later because it is an estate car constitutes a measure having an effect equivalent to quantitative restrictions on imports (article 30);

(b) That, where the same provision requires payment of a specified sum for each of the two roadworthiness tests, it creates a charge having an effect equivalent to customs duties (article 13)?

(this question concerns the duplication of roadworthiness tests, the latter test being the third systematic test carried out before a new estate car manufactured in one member state is placed on the road in another member state).

(2) Are articles 30 and 13 of the treaty establishing the european economic community to be interpreted as meaning:

(a) That a legal provision of a member state under which a new car (whether an estate car or not) which was manufactured in and imported from another member state and placed on the road and which carries a certificate of conformity is required to undergo a roadworthiness test constitutes a measure having an effect equivalent to a quantitative restriction on imports (article 30);

(b) That, where the same provision requires payment of a specified sum for that roadworthiness test, it creates a charge having an effect equivalent to customs duties (article 13)?

(this question concerns the first roadworthiness test, that test being the second systematic test carried out before a new estate car manufactured in one member state is placed on the road in another member state). '

9 It is apparent from the terms of those questions that the court is being asked in substance:

(a) First, whether it is in accordance with article 30 of the treaty for a car imported from another member state and carrying a certificate of conformity to the vehicle types approved in the importing member state to be subject to a roadworthiness test for the purposes of registration in the latter state;

(b) Secondly, whether it is in accordance with article 30 of the treaty for the same car to be subject to a second roadworthiness test carried out a few days after the first test;

(c) Thirdly, whether it is in accordance with article 13 of the treaty for a fee to be levied at the time of each roadworthiness test.

The first roadworthiness test

10 The danish government and the commission take the view that national measures whereby a new imported vehicle carrying a certificate of conformity to the safety standards of the importing member state is subject to a roadworthiness test constitute measures having an effect equivalent to quantitative restrictions contrary to article 30 of the treaty; moreover, they are not justified by any of the imperative requirements referred to in the judgments of the court or any of the reasons enumerated in article 36 of the treaty. However, the danish government states that where the vehicle is imported in a used condition a roadworthiness test may be justified by the need to check at least its state of repair.

11 It should be noted first of all that, although council directive 77-143-eec of 29 december 1976 (official journal 1977, l 47, p. 47) laid down a number of measures for the harmonization of roadworthiness tests for motor vehicles, the terms of annex i to the directive make it inapplicable to vehicles in the category to which the plaintiff ' s vehicle belongs. At this stage in the development of community law it is therefore for the member states - provided that they comply with the provisions of the treaty - to lay down rules for the roadworthiness testing of vehicles in that category in order to ensure road safety.

12 Under the terms of article 30 of the treaty, quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states. Roadworthiness testing is a formality which makes the registration of imported vehicles more difficult and more onerous and consequently is in the nature of a measure having an effect equivalent to a quantitative restriction.

13 Nevertheless, article 36 may justify such a formality on grounds of the protection of human health and life, provided that it is established, first, that the test at issue is necessary for the attainment of that objective and, secondly, that it does not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.

14 As far as the first condition is concerned, it must be acknowledged that roadworthiness testing required prior to the registration of an imported vehicle may, even though the vehicle carries a certificate of conformity to the vehicle types approved in the importing member state, be regarded as necessary for the protection of human health and life where the vehicle in question has already been put on the road. In such cases roadworthiness testing performs a useful function inasmuch as it makes it possible to check that the vehicle has not been damaged and is in a good state of repair. However, such testing cannot be justified on those grounds where it relates to an imported vehicle carrying a certificate of conformity which has not been placed on the road before being registered in the importing member state.

15 As far as the second condition is concerned, it must be stated that the roadworthiness testing of imported vehicles cannot, however, be justified under the second sentence of article 36 of the treaty if it is established that such testing is not required in the case of vehicles of national origin presented for registration in the same circumstances. If that were the case it would become apparent that the measure in question was not in fact inspired by a concern for the protection of human health and life but in reality constituted a means of arbitrary discrimination in trade between member states. It is for the national court to verify that such non-discriminatory treatment is in fact ensured.

16 It must therefore be stated in reply to the juge de paix of Schaerbeek that article 30 of the treaty must be interpreted as meaning that a national measure which requires a roadworthiness test for the purpose of registering an imported vehicle carrying a certificate of its conformity to the vehicle types approved in the importing member state constitutes a measure having an effect equivalent to a quantitative restriction on imports. Nevertheless, such a measure is justified under article 36 of the treaty in so far as it relates to vehicles put on the road before such registration and applies without distinction to vehicles of national origin and imported vehicles.

The second roadworthiness test

17 The commission, which was alone in presenting observations on this point, takes the view that the second test, being imposed for the purpose of exempting the vehicle from regular annual testing for the first four years, constitutes a measure having equivalent effect contrary to article 30 of the treaty and not justified by article 36. In that connection the commission notes that an exemption from regular annual tests could have been obtained simply by means of a declaration concerning the use of the vehicle made on the occasion of the first roadworthiness test.

18 It should be pointed out that, as the court has consistently held, national rules cannot benefit from an exception provided for by article 36 of the treaty if the objective pursued by that exception can be as effectively realized by measures which do not restrict intra-community trade so much.

19 It must consequently be accepted that article 36 does not provide justification for roadworthiness testing whose purpose is to obtain from the owner of the imported vehicle a written declaration certifying that the use of the vehicle qualifies it for exemption from annual testing. That purpose may be achieved simply by requiring the owner to supply that written declaration, without its being necessary for the vehicle to be presented to an approved vehicle testing agency.

20 It must therefore be stated in reply to the question put by the juge de paix of Schaerbeek that articles 30 and 36 of the treaty must be interpreted as meaning that, where the roadworthiness testing of an imported vehicle has the purpose of obtaining a written declaration from the owner of the vehicle, it constitutes a measure having an effect equivalent to a quantitative restriction on imports contrary to the treaty.

The fee collected in respect of each roadworthiness test

21 The commission takes the view that the fee collected in connexion with the first roadworthiness test constitutes a charge having equivalent effect contrary to article 13 of the treaty because the event giving rise to it is the crossing of the national border. According to the commission, the fee collected in connexion with the second roadworthiness test, however, falls within a general scheme of internal dues applied uniformly to national and imported products; that fee therefore complies with the provisions of article 95 of the treaty in so far as the test to which it relates is compatible with community law.

22 It should be noted first of all that, where testing is contrary to article 30 et seq. Of the treaty, the pecuniary charge imposed in connexion with such testing is itself by the same token contrary to the treaty.

23 By contrast, where roadworthiness testing prior to registration is recognized as justified under article 36, the fee collected in respect of an imported vehicle constitutes an internal charge complying with article 95 provided that it is not greater in amount than the fee applicable in the same circumstances to a vehicle of national origin.

24 It must therefore be stated in reply to the juge de paix of Schaerbeek that:

(a) A fee collected in connexion with a roadworthiness test which is contrary to the treaty is itself by the same token contrary to the treaty;

(b) A fee collected in connexion with a roadworthiness test carried out prior to registration which is justified under article 36 of the treaty complies with the treaty provided that it is not greater in amount than the fee applicable in the same circumstances to a vehicle of national origin.

Costs

25 The costs incurred by the danish government and the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (third chamber),

In answer to the questions submitted to it by the juge de paix of the third canton of Schaerbeek by judgment of 1 february 1985, hereby rules:

(1) Article 30 of the treaty must be interpreted as meaning that a national measure which requires a roadworthiness test for the purpose of registering an imported vehicle carrying a certificate of its conformity to the vehicle types approved in the importing member state constitutes a measure having an effect equivalent to a quantitative restriction on imports. Nevertheless, such a measure is justified under article 36 of the treaty in so far as it relates to vehicles put on the road before such registration and applies without distinction to vehicles of national origin and imported vehicles.

(2) Articles 30 and 36 of the treaty must be interpreted as meaning that, where the roadworthiness testing of an imported vehicle has the purpose of obtaining a written declaration from the owner of the vehicle, it constitutes a measure having an effect equivalent to a quantitative restriction on imports contrary to the treaty.

(3)(a) A fee collected in connection with a roadworthiness test which is contrary to the treaty is itself by the same token contrary to the treaty.

(b) A fee collected in connection with a roadworthiness test carried out prior to registration which is justified under article 36 of the treaty complies with the treaty provided that it is not greater in amount than the fee applicable in the same circumstances to a vehicle of national origin.