Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In connection with proceedings brought by Mr Bernhard Schloh against Auto contrôle technique SPRL, the Third Cantonal Court of Schaerbeek in Belgium has asked this Court to interpret Articles 30 and 13 of the EEC Treaty with reference to the formalities laid down by the Belgian legislation for the approval and registration of imported motor vehicles. In particular, the Cantonal Court asks whether national rules providing for roadworthiness tests in the case of motor vehicles coming from a Member State which have received a certificate of conformity are compatible with the Treaty and whether it is lawful to charge a fee for such tests.

2. In order to set those questions in context it will be useful to summarize the Belgian legislation in force at the material time and describe the relevant Community legislation. The Belgian legislation consists of the Royal Decree of 31 December 1953 laying down rules on the registration of motor vehicles (Moniteur Belge, 9 January 1954), several times amended, and the Royal Decree of 15 March 1968 laying down general rules on the technical requirements which must be met by motor vehicles and their trailers (Moniteur Belge, 28 March 1968).

3. The Community provisions are based on the rules of the Treaty relating to the movement of goods and are contained in the various directives for the harmonization of national legislation, which number more than 50 in the sector which concerns us: one is of a general nature and the others relate to the components of motor vehicles. The framework directive (Council Directive 70/156/EEC of 6 February 1970, Official Journal, English Special Edition 1970 (I), p. 96) provides for the adoption of a procedure which will enable manufacturers to obtain in any Member State EEC typeapproval valid for the whole Community so that vehicles in respect of which they issue a certificate of conformity may be freely marketed in all the Member States. However, that procedure will only become operative once all the components and characteristics mentioned in the EEC typeapproval certificate annexed to the framework directive have been harmonized by implementing directives; even now the topics of tyres, safety glass, weights and dimensions have yet to be covered.

4. I stated earlier that the Belgian legislation draws a distinction — as indeed does that of other Member States — between new vehicles and used vehicles. The judgment of the Cantonal Court shows that the parties to the main action are in disagreement as to the condition of the imported car, Schloh contending that it is new, while the defendant regards it as used. The Cantonal Court has clearly opted for the former view, and according to the previous decisions of this Court it is the sole body competent to evaluate the facts (judgment of 9 July 1969 in Case 10/69 Portelange v Marchant [1969] ECR 309, at paragraphs 5 to 7 of the decision; judgment of 23 January 1975 in Case 51/74 Hulst v Produktschap voor Siergewassen [1975] ECR 79, paragraph 12; judgment of 5 October 1977 in Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraph 17; judgment of 16 March 1978 in Case 117/77 Algemeen Ziekenfonds v Pierik [1978] ECR 825, paragraphs 6 and 7; judgment of 29 November 1978 in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 25; judgment of 15 November 1979 in Case 36/79 Denkavit Futtermittel v Finanzamt Warendorf[1979] ECR 3439, paragraph 12; judgment of 14 February 1980 in Case 53/79 ONPTS v Damiani [1980] ECR 273, paragraph 5; most recently, judgment of 20 March 1986 in Case 35/85 Tissier v Ministère Public [1986] ECR 1212, paragraph 9).

5. In these proceedings written observations have been submitted by the Commission of the European Communities and the Danish Government. The Belgian Government has answered certain questions put to it by the Court.

6. Question 1 concerns the compatibility with Community law of a provision requiring imported vehicles with certificates of conformity to undergo a second test shortly after the first in the importing or exporting country. For the reasons I have just stated, even such a test, in so far as its purpose is to verify the conformity with the legislation of a new vehicle — even when it is an estate car—constitutes a measure having an effect equivalent to a quantitative restriction. The defendant objects that the requirement is also useful to the owner because that test is the stage at which he provides the declaration necessary in order for an estate car to be treated as equivalent to a private car and thereby be exempt from annual tests for the first four years. That argument, however, is untenable. Such a declaration does not in fact require any test on the vehicle and may just as well be supplied together with the request for registration.

7. For the sake of completeness, and having regard to the views expressed on the topic by the Danish Government and at the hearing by the Commission, it may be appropriate to consider whether the two roadworthiness tests were permissible under Community law in the case of the importation of used vehicles.

8. On the basis of all the foregoing considerations I propose that the Court reply as follows to the questions referred to it by the Third Cantonal Court of Schaerbeek in the proceedings between Mr Bernard Schloh and Auto contrôle technique SPRL:

1 Translated from the Italian.

2 Translator's note: For the sake of convenience, the mixte' is hereinafter rendered as estate car. It should be noted that the term as a broader meaning an vehicle suitable for the carriage of either passengers c