Opinion of Advocate General Lenz delivered on 17 February 1993

1 Original language: German.

2 Sixth Council Directive of 17 May 1977 on the harmoniza lion of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

3 Sec Article 2(2) in conjunction with Article 7 of the directive in the original version. Since 1 January 1993 a new system has been in force on the basis of the amending Directive 91/680 of 16 December 1991 (OJ 1991 L 376, p. 1). The new system is no longer based on importation within the Com muntty but on the purchase ot goods within the Community for consideration within the country (Sec Article 28a in the version of the said amending directive).

4 Judgment of 14 January 1986; sec the annex to the rejoinder, the judgment was upheld by the Cour dc Cassation on 15 February 1988.

5 See section I(a) of the Report.

6 Case 299/86 Drexl [1988] ECR 1213.

7 Case 15/81 Gaston Schul, Douane Expediteur BV ν Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, last confirmed in the judgments in Cases C-120/88 Commission ν Italy [1991] ECR I-621; C-119/89 Commission ν Spain [1991] ECR I-641; and C-159/89 Commission ν Greece [1991] ECR I-691.

8 Council Directive of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another, OJ 1983 L 105, p. 59.

9 Case C-297/89 Rigsadvokaten v Nicolai Christian Ryborg [1991] ECR I-1943.

10 Sec section 11(b) of the Report for the I Icaring in this ease.

11 Case 233/80 Gasati [1981] ECR 2595, paragraph 27; and the Drexl case, cited above, paragraph 17.

12 See paragraphs 23 and 25 of the judgment and paragraph 2 of the operative part.

13 Sec the quotation in paragraph 5 and paragraph 15 of this Opinion.

14 Sec paragraph 23 of the judgment.

15 The operative part of the judgment does not require the disproportion to be manifest.

16 Thus the Court made the following observations in the Drexl case (paragraph 23):Such a disproportion exists where the penalty provided for in the case of importation involves, as a general rule, a term of imprisonment and the confiscation of the goods pursuant to the rules laid down to combat smuggling whereas com parable penalties are not provided for, or are not generally imposed, in the case of offences concerning the payment of value added tax on domestic transactions. I lowever, it should be noted that the assumption that offences on importation normally lead to prison sentences under the Italian rules is incorrect: sec Article 292 of Decree No 43 (Report for the Hearing [1988] ECR 1214, at p. 1215) and the judgment of the Italian Corte Suprema di Cassazione of 21 February 1989, Cassazione Penale 1989, No 1345, p. 1547, at p. 1550.

17 That is well illustrated by the judgment of the Corte Suprema di Cassazione of 21 February 1989 (previous foot note) and the judgment delivered (on 14 December 1988) by the Corte d'Appello, Genoa, as the court of reference in the Drexl case, following the judgment of the Court of Justice: Cassazione Penale 1989, No 1367, p. 1568.

18 Page 2, first and second paragraphs.

19 Page 2, first paragraph; p. 3, first paragraph; p. 4, second paragraph.

20 Page 3, under 1., second paragraph; p. 5, last paragraph.

21 Sec p. 4, penultimate paragraph; p. 7, penultimate para graph; p. 10, first paragraph at end.

22 Page 2 of the answer of 9 December 1992, under 1., first paragraph; emphasis added.

23 Sec p. 2 of the reply, last two paragraphs.

24 Page 3 of the reply, first paragraph; emphasis added.

25 Page 3 of the reply, last paragraph.

26 Paragraph 12 et seq. above.

27 Paragraph 20 et seq. above

28 Or even that the system applying to the importation of goods is severer than the other.

29 Application, p. 8. second paragraph, second sentence.

30 Sec Opinion of Advocate General Darmon [1988] ECR 1222, at p. 1225, paragraph 15.

31 Footnote 20 above.

32 Settled case law: sec judgment in Case C-52/90 Commission ν Denmark [1992] ECR I-2187, paragraph 17.

33 The Court has consistently held that the subject-matter of proceedings under Article 169 inter alia is defined by the heads of claim set out in the application (see for example the judgment in Case C-61/90 Commission ν Greece [1992] ECR I-2407, paragraph 9). On this point it should be observed that the wording of the claim in this case covers only the first complaint.

34 The application states that Mrs Patron imported her car temporarily (p. 4, third paragraph). However, the application contains no clear indication that the Commission seeks a declaration from the Court on this point also.