Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The preliminary questions submitted by the Danish Højesteret relate to the interpretation of Article 7(1) and Article 10(2) of Council Directive 83/182 of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another.

2. I will briefly summarize the facts which gave rise to these proceedings, they being particularly relevant to identification of the applicable legislation.

3. In the criminal proceedings brought against him, the Højesteret (the court before which Mr Ryborg brought an appeal after the case had already been decided by the Kriminalret, Sønderborg, and by the Vestre Landsret) has referred three questions to this Court for a preliminary ruling. In the first question, the Court is 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 who has declared that he has moved to another State A, where he works and has established his residence, given that, for more than a year, he has spent nearly every night and many weekends with a woman 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 Landsret; the two versions differ as regards the exact number of nights and weekends spent by Mr Ryborg at his friend's house.

4. The questions submitted by the national court clearly presuppose that Directive 83/182 is applicable to the facts of the case before it.

5. Having thus reshaped the first question submitted by the national court, I would 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 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 requires the Member States to grant an exemption from VAT for imports of goods declared to be under temporary importation arrangements under conditions which [the Member States] shall lay down for the purpose of preventing ... any possible evasion, avoidance or abuse. Article 14(2) provides for the subsequent adoption of Community legislation in order to harmonize cases of exemption, and, pending its entry into force, the national provisions of the Member States continue to be applicable — provisions which, as the Court itself has stated, must observe the limits set by the rules of Community law which they serve to implement. The Court went on to 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 harmonization of value added tax such as, in particular, to facilitate the free movement of persons and goods and to prevent cases of double taxation.

6. In the light of the Community legislation just referred to, the following observations are called for in the present case.

7. As regards the period after the entry into force of Directive 83/182, it will be remembered that the national court seeks, in order to determine the dispute before it, an interpretation of the second subparagraph of Article 7(1), a provision under which, where a person is required to live alternately in different places in two or more Member States, as a result of having occupational ties with a place other than that with which he has personal ties, a person's normal residence is deemed to be the place with which he has personal ties, provided that he returns there regularly.

8. Now, once residence has been defined as a person's habitual or permanent centre of interests, it is clear that occupational links and personal links — in particular the number of days (or nights) spent in a particular place in the course of a year — are all to be regarded as relevant factors, individually and collectively, in determining a person's normal residence for the purpose of granting an exemption upon temporary importation.

9. In view of the foregoing observations, I am minded to conclude that Mr Ryborg never transferred his normal residence to 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 and second subparagraphs of Article 7(1).

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 court, to consider the second and third questions.

11. As regards the last question, namely whether Article 10(2) has direct effect and thus confers on individuals rights which they can rely on in legal proceedings, it seems to me that the answer must be negative and that few comments are called for. It is well known that, by virtue of consistent and now well-established case-law, there are regarded as directly applicable provisions those which impose clear, precise and unconditional obligations, so that no margin of discretion is left to the Member States. However, the provision at issue is without doubt conditional, in so far as it requires the Member States to cooperate where difficulties arise in the application of the directive.

12. In view of the foregoing considerations, I conclude by proposing that the Court give the following answers to the questions submitted by the Højesteret:

1 Original language Italian

2 OJ 1983 L 105. p 51

3 Directive 77/388, OJ 1977 L 145, p. 1.

4 Case 249/84 Ministire publique v Profant [1985] ECR 3237, paragraph 23.

5 Case 127/86 Criminal Proceedings against Ledoux [1988] ECR 3741, paragraph 11, and Profant, supra, paragraph 25.

6 United Nations Treaty Series, Volume 282, p. 249.

7 Supra, paragraph 15.

8 Supra, paragraph 27

9 See, for example, the concept of residence as defined in Council Regulation No 3 of 1958 on social security for migrant workers (Journal Officiel 1958, p. 561) as amended by Regulation No 24/64 (Journal Officiel 1964, p. 740).

10 Judgment in Case 13/73 Angtnkux [1973] ECR 935; see also Case 76/76 Di Paolo [1977] ECR 315 and Case 284/87 Scbäflein v Commission [1988] ECR 4475 and, most recently, Case 216/89 Reibold [1990] ECR 4163.

11 See judgment in Case 284/87, supra, paragraph 10.

12 See the judgment in Case 59/85 Reed [1986] ECR 1283.

13 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