Opinion of Advocate General
Mr President,
Members of the Court,
1. In the present case the Commission asks the Court to declare that, by having adopted and maintained in force a system of temporary and permanent importation of means of transport which is incompatible with certain provisions of Council Directives of 28 March 1983 83/182/EEC and 83/183/EEC and also with Council Directive 73/148/EEC of 21 May 1973, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.
2. Reference is made to the Report for the Hearing for a detailed description of the pre-litigation procedure, and also the national legislation at issue and the relevant Community provisions, to which I shall refer only in so far as is necessary for the purposes of analysing the individual complaints made by the Commission.
A — Determining normal residence
(a) For the purposes of temporary importation
3. The Commission alleges that the Greek Government uses a concept of normal residence which differs from that contained in the first subparagraph of Article 7(1) of Directive 83/182/EEC. Whereas that provision defines normal residence as the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, the relevant national provision (Article 3 of Ministerial Order No 247/13 of 1 March 1988) refers to the place where a person stays for at least 185 days in a 12-month period. The Commission is of the opinion that reference to a period of 12 months rather than to the calendar year is contrary to both the letter and the spirit of the directive and reverses its logic, in that the place of normal residence comes to depend on the temporary importation, rather than the temporary importation on the place of residence. In any event, the non-application of the criterion defined in the directive leads to a disparity in the treatment of Community citizens in the same circumstances.
4. The Greek Government's argument cannot be accepted. First of all, as the example given in the Commission's pleadings demonstrates, it is not always the case that reference to the 12 months preceding importation is more advantageous to the persons concerned. On the contrary, it is clear that, depending on the period in which the residence in question occurred (with reference to the time of temporary importation) and on whether or not it was continuous, the fact that the 12-month period preceding importation is taken into account rather than the previous calendar year may prove disadvantageous or favourable for them. That finding is sufficient in itself to lead to the conclusion that in the present case Article 9(1) of the directive cannot be relied on to justify adoption of a criterion other than that laid down in Article 7(1) of the same directive.
5. That being said, it must be acknowledged that the test of residence of at least 185 days in a given place is not of course decisive for the purpose of determining what normal residence is, since it must be assessed in conjunction with the personal and occupational ties of the person concerned, and those ties have greater weight than the quantitative criterion of 185 days. Essentially, besides the question whether the 185 days are calculated by reference to the calendar year or to a period of 12 months, normal residence has, on the basis of an overall assessment of the criteria mentioned, come to be considered as the place where a person has established his permanent centre of interests.
(b) For the purposes of permanent importation
6. The problem of determining the place of normal residence is the same where the granting of exemption concerns the permanent importation of vehicles is concerned. The Greek provision transposing Article 6(1) of Directive 83/183/EEC, which has exactly the same wording as Article 7(1) of Directive 83/182/EEC, into national law also refers to a period of 12 months rather than to the calendar year. My observations concerning temporary importation arc therefore equally valid in this case.
7. As regards the grant of the exemption, however, Article 4(1) of that Order requires the persons concerned to have had their normal residence in another Member State for at least two years before moving to Greece. The Commission considers such a condition to be contrary to Article 6(1) of the directive concerned, in so far as the latter does not lay down any minimum length of residence for the purposes of acquiring normal residence.
8. The only condition laid down by the directive in order to qualify for the exemption is that the imported vehicle should have been used by the person concerned in the Member State from which it has been exported for at least six months before the change of residence (first indent of Article 2(b)). It follows that, to qualify for the exemption where a vehicle is permanently imported, it is sufficient if the person concerned has resided for six months in one place. Article 4(1) of Ministerial Order No 245/11 is therefore plainly incompatible with the directive.
Β — Checks for ascertaining normal residence
(a) On temporary importation
9. The Commission first charges the Greek Government with failing to transpose into national law Article 7(2) and (3) of Directive 83/182/EEC, that is to say the provisions which require individuals to give proof of their place of normal residence by any appropriate means, in particular their identity card or any other valid document (Article 7(2)) and authorize the Member State of importation, where it has doubts as to the validity of a statement as to normal residence, to request any additional information or evidence (Article 7(3)).
10. According to the Commission, confirmation of the existence of such checks is supplied by the fact that Title II of Circular No Δ 366/26 Πολ 10 lists the various items of documentary evidence that the customs authorities may take into consideration for the purposes of proving normal residence. In any event, the circular in question did not properly transpose Article 7(3) of the directive, given that that provision must be given a restrictive interpretation, since it derogates from the principle of facilitating freedom of movement for persons, whereas the circular authorizes the competent Greek authorities to carry out further checks whenever it is not possible to ascertain from the passport or identity card how long a period has been spent abroad during the 12 months prior to the importation.
11. It is beyond doubt that the burden of proof of normal residence falls on the person concerned and it is equally beyond doubt, to my mind, that Article 15 of Ministerial Order No 247/13, like Article 7(3) of the directive, gives persons concerned the possibility of proving normal residence by any means, including therefore by identity card or passport alone, provided that those documents are conclusive. In that sense, therefore, I consider that the provision in question is sufficiently clear and not liable to create uncertainty or confusion for the persons concerned.
(b) On permanent importation
12. As regards Article 6(2) and (3) of Directive 83/183/EEC also, which have exactly the same wording as Article 7(2) and (3) of Directive 83/182/EEC, the Commission charges the Greek Government with having failed to transpose them properly into the national legal order. In particular, the Commission claims that Article 29(3) of Order No 245/11, which is framed in terms almost identical to those of Article 15 of Order No 247/13, grants the administrative authorities extensive discretion with regard to the production of documentary evidence and requires systematic checking of proof of normal residence. Those are essentially the same arguments as those considered with respect to temporary importation.
13. Relying on the fact that the first time the Commission mentioned Circular No Δ 357 of 22 March 1988, by virtue of which a five years' residence permit may be demanded, was in response to a written question asked by the Court, the Greek Government maintained at the hearing that such a plea was not admissible, taking into account the defendant State's rights of defence in proceedings under Article 169.
14. That having been said, I would observe that the very nature of the document being discussed here (residence permit) demonstrates that it is not a document intended to prove that, before arriving in Greece, the person concerned had his or her normal residence in another Member State but one which proves that there has been a change of residence, which implies that the requirement of a residence permit does not and cannot constitute proof of normal residence within the meaning and for the purposes of Article 6 of Directive 83/183/EEC.
15. Finally, with respect to the requirement to which Greek nationals are subject, that they should before returning to Greece obtain a certificate from the Greek consular authorities in the State in which they used to live, I would first of all point out that it was the Greek Government which brought that practice to the attention of the Commission during the pre-litigation procedure, explaining that such a certificate is intended to allow the persons concerned freedom to import with the benefit of the exemption where their identity cards or other documents do not provide sufficient proof of residence.
16. That clarification having been made, it none the less remains the case that, just as it did with regard to the supposed practice of making checks on temporary importation, the Commission has inferred the existence of a constant, arbitrary and unnecessarily restrictive practice of carrying out checks for determining normal residence simply from the wording of the relevant national provisions, which in its opinion are unclear and furthermore allow the Greek authorities a broad discretion in relation to the documentary evidence to be produced for proving normal residence.
C — Stamping of passports
17. The Commission objects, thirdly, that the Greek Government follows a practice of stamping passports with vehicle registration numbers when vehicles enter and leave Greek territory which leads to discriminatory treatment between persons going to Greece: those who produce their passport undergo checks and the resulting delays, while others who simply produce their identity card may enter freely and without difficulty.
18. The Commission claims that the stamping practice in question is unnecessarily restrictive and creates an unjustified obstacle to freedom of movement for persons, contrary to Directive 73/148/EEC (and by extension to 83/182/EEC) and to the settled case-law of the Court according to which Member States are to grant the right to enter their territory merely on production of a valid identity card or passport and no entry visa or equivalent requirement may be demanded. The Commission also refers to the Court's finding that the carrying out of controls upon entry into the territory of a Member State may constitute a barrier to the free movement of persons if (...) the controls in question were carried out in a systematic, arbitrary or unnecessarily restrictive manner.
19. I do not consider that Article 7(3), on the basis of which specific controls may be carried out only in case of doubt, is applicable in these circumstances, since the purpose of stamping passports is not to determine normal residence in another Member State but rather to enable the authorities to verify that a particular vehicle does not remain on Greek territory beyond the exemption period, that situation not being regulated by the directive concerned.
D — Time-limit for the re-export of hired vehicles
20. The Commission's final objection relates to the condition imposed by the second subparagraph of Article 8(2) of Order No 247/13 which, in providing that private vehicles belonging to a car-hire firm having its head office outside Greece may be re-hired to persons who are not resident in Greece, in order to be re-exported, provided that they are in Greece as a result of a hire contract which comes to an end in Greece, sets a maximum period of ten days, according to the distance or situation of the vehicles, within which they must be re-exported. In the Commission's opinion, the setting of such a time-limit is contrary to Article 3(b) of Directive 83/182/EEC.
21. In the light of the foregoing considerations, I therefore conclude by proposing that the Court should:
1 Original language: Italian.
2 Directive on lax exemptions within the Community for cer lain means of iransport temporarily imported into one Mem ber Stale from another (OJ 1983 L 105, p. 59).
3 Directive on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (OJ 1983 L 105, p. 64).
4 Directive on the abolition of restrictions on movement and residence within the Community for nationals of Member Stales with regard to establishment and the provision of ser vices (OJ 1973 L 172, p. 14).
5 Case C-297/89 Ryborg [1991] ECR I-1943, paragraph 16.
6 To that effect sec both Case C 297/89 Ryborg and Case 284/87 Scbaflem v Comminimi ;1988 KCR 4475.
7 See mur ulm the judgments in Scbaßcin, paragraph 9. and Ryborg, paragraph 19
8 Article 2(1) of Ministerial Order No 245/11 of 1 March 1988.
9 Case 363/85 Commission ν Italy [1987] ECR 1733, paragraph 7.
10 In addition to a passport or identity card, I shall mention a certificate of registration with municipal or commune authorities, a certificate of registration with consular authorities, residence permit, work permit, tax returns, insurance company certificates and documents proving the place of residence of other members of the family.
11 See, for example, the judgment in Case C-339/87 Commission ν Netherlands [1990] ECR I-851, paragraph 6.
12 h is hardly necessary in this regard lo point out that norma! residence, as established on the basis of the criteria set out in Article 6, may not and must not, at the lime of pernia nenl importation, be ascertained with respect to the Mem ber State to which residence is being transferred. If that were the case, then no one would ever be entitled to the exemption, givcn that it is impossible for a person to dem onstrale that he has his normal residence in the place to which he is moving.
13 Sec Article 5 of Council Directive 64/221/EEC of 25 February 1964 (OJ, English Special Edition 1963-1964, p. 117).
14 This was because until 10 June 1991 the identity card issued by the Greek authorities was not valid for expatriation, so that it was possible for nationals to cross the Greek frontier only if they possessed passports.
15 Sec Arlicle3 of Directive 73/148/EEC, and the judgment in Case 157/79 Pieck [1980] ECR 2171, paragraph 10.
16 Case 321/87 Commission ν Belgium [1989] ECR 997, para graph 15.