C-297/89 Rigsadvokaten v Nicolai Christian Ryborg

Judgment of the Court (Sixth Chamber) of 23 April 1991. - Rigsadvokaten v Nicolai Christian Ryborg. - Reference for a preliminary ruling: Højesteret - Denmark. - Directive 83/182/EEC - Temporary importation of a motor vehicle for private use - Normal residence - Member States' obligation to consult each other. - Case C-297/89. European Court reports 1991 Page I-01943

Summary Parties Grounds Decision on costs Operative part

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1. Tax provisions - Harmonization of laws - Tax exemptions for temporary imports of means of transport - 'Normal residence' for the purposes of Directive 83/182 - Meaning - Criteria

(Council Directive 83/182, Art. 7(1))

2. Tax provisions - Harmonization of laws - Tax exemptions for temporary imports of means of transport - Member States' obligation under Directive 83/182 to consult each other - Scope - Right of individuals to rely on the provision imposing that obligation - None

(Council Directive 83/182, Art. 10(2))

1. For the purposes of Article 7(1) of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another 'normal residence' corresponds to the permanent centre of interests of the person concerned, which must be determined with the aid of all the criteria set out in that provision and all the relevant facts. In that context it should be noted that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member State B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

2. Article 10(2) of Directive 83/182 requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, which will enable them to cope with any future difficulties which may arise in individual cases. However, that provision does not require the Member States to cooperate in each individual case in which the application of the directive raises difficulties.

Since that provision requires the Member States to cooperate only if difficulties arise in applying the directive and thus leaves them a wide discretion, it may not be relied on by individuals before national courts.

In Case C-297/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hoejesteret (Supreme Court), Denmark, for a preliminary ruling in the proceedings pending before that court between

Rigsadvokaten

and

Nicolai Christian Ryborg,

on the interpretation of the second subparagraph of Article 7(1) and Article 10 of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (Official Journal L 105, p. 59),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, T.F. O' Higgins, M. Díez de Velasco, C.N. Kakouris and P.J.G. Kapteyn, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

N.C. Ryborg, by G. Lett, of the Copenhagen Bar,

the Danish Government, by J. Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

the United Kingdom, by J.E. Collins, Treasury Solicitor, and D. Anderson, Barrister, acting as Agents,

the French Government, by E. Belliard, Assistant Director in the Directorate for Legal Affairs, Ministry of Foreign Affairs, acting as Agent, and M. Giacomini, Secretary for Foreign Affairs in the same ministry, acting as Agent,

the Commission, by J.F. Buhl, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of Mr Ryborg (represented by G. Lett and by E. Johansson, of the Kiel Bar), the Danish Government, the United Kingdom and the Commission at the sitting on 3 October 1990,

after hearing the Opinion of the Advocate General at the sitting on 27 November 1990, gives the following

Judgment

Grounds

1By order of 22 August 1989, which was received at the Court on 28 September 1989, the Hoejesteret referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 7 and 10 of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (Official Journal L 105, p. 59).

2The questions were raised in criminal proceedings brought against Mr Ryborg for bringing into Denmark on 12 November 1982 a private car purchased and registered in the Federal Republic of Germany and for using it in Denmark without having paid tax on it and without having registered it in Denmark.

3On 6 April 1973, Mr Ryborg, a Danish national, moved to the Federal Republic of Germany where he found work and accommodation. During the subsequent years, he frequently went to Denmark in a car registered in Germany. According to his statements, since 1981 he frequently stayed with a Danish woman friend residing in Denmark. Subsequently, from July or August 1982, he spent almost every night and most of his weekends there.

4In October 1982, Mr Ryborg purchased a new car which he registered in Germany. During the period from 12 November 1982 to 17 January 1984, he used that vehicle to visit his friend. On 17 January 1984, the Danish authorities confiscated his car, on the ground that it had not been registered in Denmark.

5Having been fined and ordered to pay an amount due in respect of value added tax ("VAT") by a judgment of the Kriminalret (Criminal Court), Soenderborg, of 6 September 1984, which was confirmed by judgment of the Vestre Landsret (Western Regional Court) of 28 October 1984, Mr Ryborg appealed to the Hoejesteret seeking acquittal.

6The Hoejesteret decided to refer three questions to the Court for a preliminary ruling, the first question being given in two alternative versions:

"1. (Alternative 1)

On the basis of what criteria is it to be decided whether, by virtue of the second subparagraph of Article 7(1) of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another, a national of country B has his normal residence in country A or country B, where it is established that

(a) he declared to the authorities of both countries that he had moved to country A,

(b) his job and normal residence were thereafter in country A,

(c) as from a later date, without declaring that he had moved to country B and whilst maintaining his dwelling and job in country A, he stayed overnight, over a period of more than one year, at the home of a woman friend in country B on all weekdays except for one night every three weeks when, in connection with night duty at his place of work, he stayed overnight in his dwelling in country A, and also stayed overnight some week-ends with the friend, sometimes at her dwelling in country B and sometimes at his dwelling in country A, and spent holidays with her?

1. (Alternative 2)

On the basis of what criteria is it to be decided whether, by virtue of the second subparagraph of Article 7(1) of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another, a national of country B has his normal residence in country A or country B, where it is established that

(a) he declared to the authorities of both countries that he had moved to country A,

(b) his job and normal residence were thereafter in country A,

(c) as from a later date, without declaring that he had moved to country B and whilst maintaining his dwelling and job in country A, he stayed overnight on all weekdays over a period of more than one year at the home of a woman friend in country B?

2. Does the requirement contained in Article 10 of Directive 83/182/EEC concerning cooperation between the competent authorities of the countries concerned on the practical application of the directive preclude a Member State B from requiring, without prior agreement with Member State A, one of its nationals who has registered his car and paid taxes thereon in Member State A to register the car and pay additional taxes thereon in Member State B, if Member State B is of the opinion that the person concerned now has his normal residence in Member State B?

3. Does Article 10 of the Directive create rights for citizens which can be relied on before a national court?"

The Hoejesteret states that it considered it necessary to give alternative versions of the first question in order to set out the precise facts on which the judgments of the Kriminalret, Soenderborg, and the Vestre Landsret were based.

7Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8It should first be observed that the events giving rise to the main proceedings occurred between 12 November 1982 and 17 January 1984, whilst Directive 83/182, to which the questions relate, should have been implemented in national law no later than 1 January 1984 and was in fact not fully implemented in Danish law until 30 January 1984, by Ministerial Order No 24, which entered into force on 1 February 1984 (Lovtidende A, 1984, p. 173).

9However, it must be observed that under Article 177 of the Treaty, which requires cooperation and a clear division of functions as between the national courts and the Court of Justice, the Court may not criticize the grounds of the order for reference or the relevance of the questions submitted. However, it must be stated, within that context of cooperation between national courts and the Court of Justice, that the order for reference contains a detailed account of the facts of the main proceedings and that the Hoejesteret expressly refers in its questions to the provisions of Directive 83/182.

10It is therefore necessary to give an answer to the questions submitted on the understanding that the national court will consider the matters at issue on the basis of national legislation in the light of Directive 83/182.

The first question

11In the first question, the national court asks essentially what criteria must be adopted, under Article 7 of Directive 83/182, in order to determine the normal residence of a person in circumstances such as those of the accused in the main proceedings.

12In order to answer that question, it must first be observed that Directive 83/182 contains, with respect to the temporary importation of certain means of transport and in relation to VAT, Community tax rules of the kind provided for in Article 14(2) of the Sixth Directive, Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common System of value added tax: uniform basis of assessment (Official Journal L 145, p. 1, hereinafter referred to as "the Sixth Directive").

13Accordingly, Directive 83/182 must be interpreted in the light of the fundamental aims of the VAT harmonizing measures, in particular the promotion of freedom of movement for persons and goods and the prevention of double taxation (judgments in Case 249/84 Profant [1985] ECR 3237, paragraph 25, and Case 127/86 Ledoux [1988] ECR 3741).

14In particular, account must be taken of the fact that it is stated in the preamble to Directive 83/182 that the freedom of movement of Community residents within the Community is hampered by the taxation arrangements applied to the temporary importation of certain means of transport for private or business use, that the elimination of the obstacles resulting from those taxation arrangements is particularly necessary if an economic market having features similar to those of a domestic market is to be established and that it must be possible for that purpose to establish definitely whether or not a person is in fact resident in a given Member State.

15As far as normal residence is concerned, it must be observed that Articles 3, 4 and 5 of Directive 83/182 make the grant of tax exemption by the Member States referred to in Article 1 for temporary importation of a private car conditional upon the requirement that the individual importing a means of transport has his normal residence in a Member State other than the Member State of temporary importation.

16It follows that once the place of normal residence has been established in accordance with Articles 7(1) and 9(3) of Directive 83/182 it is possible to determine into which Member State the vehicle concerned has been temporarily imported, and which Member State is entitled to apply its tax legislation to the vehicle.

17According to the first subparagraph of Article 7(1) of the directive, "normal residence" means the place where a person usually lives, that is to say for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.

18The second subparagraph of Article 7(1) relates to persons whose occupational ties are with a place other than that of their personal ties and who consequently live in turn in different places situated in two or more Member States. It provides that in such circumstances a person' s normal residence is regarded as being the place of his personal ties, provided that he returns there regularly. That place must be determined in accordance with the first subparagraph of Article 7(1).

19It must be stated, first, that the criteria laid down in those provisions refer both to a person' s occupational and personal ties with a place and to the duration of those ties and consequently that they must be examined in conjunction with each other. Normal residence must, according to consistent decisions of the Court in other spheres of Community law, be regarded as the place where a person has established his permanent centre of interests (see judgments in Case 13/73 Angenieux [1973] ECR 935, Case 284/87 Schaeflein v Commission [1988] ECR 4475 and Case C-216/89 Reibold [1990] ECR I-4163).

20It follows that all the relevant elements of fact must, in the light of the criteria laid down in the abovementioned provisions, be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned.

21It must also be borne in mind that, whilst it is for the Court of Justice to lay down the criteria by which the national court must be guided in applying a rule of Community law and it is for the national court to make the factual assessments required for the application of those criteria to the particular circumstances giving rise to the main proceedings, it is the responsibility of the Court, under Article 177 of the Treaty, to inform the national court of the conditions under which the circumstances of fact mentioned in the questions submitted may be taken into account in applying those criteria (see judgment in Reibold, supra, paragraph 18).

22It is apparent from the terms of the first question that the case before the national court concerns a national of Member State B who for several years has been employed and had his normal residence in Member State A and that the issue of his normal residence arose only because after a certain date and for over a year he spent nearly every night and weekend with a woman friend in State B.

23It is also apparent from the preliminary question that the person concerned retains occupational ties with Member State A and that he retains his dwelling there.

24In those circumstances, the mere fact that a person spends nights and weekends for more than a year with a woman friend in State B is not sufficient for it to be concluded that he has moved the permanent centre of his interests to that State.

25The position would be different if the person concerned settled in Member State B and manifested an intention to live there with his woman friend and not to return to Member State A (see the judgment in Profant, supra, paragraph 27).

26It is also apparent from the order for reference and from the observations made at the hearing that the Danish authorities consider that Mr Ryborg transferred his normal residence to Denmark as from the date on which they established for the first time that he was crossing the frontier in a new car.

27The concept of residence, for the purposes of Directive 83/182, serves to determine whether a means of transport has been temporarily imported. However, the logic of that approach may not be reversed so that a person' s normal residence is conditional upon importation. The fact that a person who has been going to another Member State does so after a certain date in a new car is therefore not relevant in determining his normal residence.

28It must therefore be stated in reply to the first question that for the purposes of Article 7(1) of Directive 83/182 "normal residence" corresponds to the permanent centre of interests of the person concerned, which must be determined with the aid of all the criteria set out in that provision and all the relevant facts.

29It must also be made clear that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member State B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

The second question

30In its second question, the national court seeks essentially to know whether Article 10(2) of Directive 83/182 requires the Member States to consult each other in advance in specific cases, such as the case at issue in the main proceedings.

31It must first be observed that, according to Article 10(1) and (3), Directive 83/182 is to be applied by the Member States to individual cases within the framework of the provisions of their national law which implement the directive or which may be adopted subsequently in the area covered by the directive.

32It must then be pointed out that, according to the last recital in the preamble thereto, Directive 83/182 merely marks the first stage of harmonization of the provisions governing temporary imports of certain means of transport and that other measures may be necessary to establish a uniform system in all the Member States in accordance with Article 10(4) of the directive.

33It is therefore against that general and changing background that Article 10(2) must be analysed. Like the other paragraphs of Article 10, it concerns the general functioning of Directive 83/182.

34Article 10(2) thus requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, which will enable them to cope with any future difficulties which may arise in individual cases.

35It must therefore be stated in reply to the second question that Article 10(2) of Directive 83/182 does not require the Member States to cooperate in each individual case in which the application of that directive raises difficulties.

The third question

36In its third question, the national court seeks essentially to know whether Article 10(2) of Directive 83/182 may be relied on by individuals before the national courts.

37It has been consistently held by the Court (see, in particular, the judgment in Case 31/87 Beentjes [1988] ECR 4635, paragraph 40) that only those provisions of a directive which appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise may be relied on by individuals against the State.

38However, Article 10(2) of Directive 83/182 is conditional, in so far as it requires the Member States to cooperate only if difficulties arise in applying the directive, and thus leaves them a wide discretion.

39It must therefore be stated in reply to the third question submitted by the Hoejesteret that Article 10(2) of Directive 83/182 may not be relied on by individuals before national courts.

Costs

Costs

40The costs incurred by the Kingdom of Denmark, the French Republic, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, so far as the parties to the main proceedings 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.

Operative part

On those grounds,

THE COURT (Sixth Chamber),

in reply to the questions submitted by the Hoejesteret, Copenhagen, by order of 22 August 1989, hereby rules:

1. For the purposes of Article 7(1) of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another 'normal residence' corresponds to the permanent centre of interests of the person concerned, which must be determined with the aid of all the criteria set out in that provision and all the relevant facts. In that context it should be noted that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member state B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

2. Article 10(2) of Directive 83/182/EEC does not require the Member States to cooperate in each individual case in which the application of that directive raises difficulties.

3. Article 10(2) of Directive 83/182/EEC cannot be relied upon by individuals before national courts.

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 27

Mr President, Members of the Court,

1The 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. '

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

Mr Ryborg, a Danish national, the defendant in the main proceedings, was accused of illegally importing into Denmark a motor vehicle registered in Germany where he has been resident since 1973.

It is common ground that, since then, he has resided in Flensburg, in Germany, where he had emigrated for the purposes of employment and had his fixed residence. Mr Ryborg frequently went to Denmark in a car registered in Germany, but without any obligation to register the car in Denmark

~ Original language Italian I — OJ 1983 I. 105. p 51 ::

November 1990 '

thereby arising — it would only have arisen if he had transferred his residence to Denmark, as the Danish authorities themselves told him by letter of 6 April 1982.

On 17 January 1984, Mr Ryborg's new car was confiscated on the ground that he had illegally imported it into Denmark, that is to say without declaring it to the customs authorities and registering it in Denmark, and for using it within Danish territory from 12 November 1982 to 17 January 1984 without having paid the applicable taxes.

There were two developments between April 1982 and November of the same year which prompted the change in the attitude of the Danish authorities towards Mr Ryborg: his purchase of a new car in October 1982 (in which he crossed the frontier for the first time on 12 November 1982) and a friendship with a Danish lady who lived in Denmark, which became so intense that Mr Ryborg, with ever-increasing frequency, spent the night and weekends with her (crossing the frontier to do so). It must be emphasized at this point that the relationship in question, according to Mr Ryborg's statements, commenced in Autumn 1981, and therefore he had frequently spent the night in Denmark as from that date. From July or August 1982 onwards, Mr Ryborg himself admits that he spent nearly ever)' night and most weekends at his friend's house.

In short, the purchase of a new car and a greater frequency of visits to his friend were fatal to Mr Ryborg, in so far as the Danish authorities considered that he had transferred his residence to Denmark, a conclusion which Mr Ryborg rejects.

3In 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.

In its second and third questions, the Højesteret also asks whether Article 10(2) of the same directive imposes on the two Member States concerned an absolute obligation to consult each other regarding every individual case to which the directive in question is applicable; and whether that provision is directly applicable.

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

I think, however, that I should first consider briefly the problem of the applicability of the directive in question ratione temporis, a problem which was discussed at length at the hearing. The events underlying the main proceedings occurred, as I have indicated, from 12 November 1982 to 17 January 1984. Directive 83/182, which is dated 28 March 1983, was to enter into force no later than 1 January 1984 and was implemented in Danish law by an order of 30 January 1984, which entered into force on 1 February 1984.

In principle, it follows that the directive in question has been applicable in Denmark as from the date of entry into force of the implementing order, and in any event since 1 January 1984 for the provisions having direct effect.

However, the Danish Government contended at the hearing that the legislation in force in Denmark even before the adoption of the directive in question was already in conformity with the directive and, therefore, that the directive was to be regarded as applicable in Denmark as early as 28 March 1983.

However, the fact that some of the Danish provisions applicable to the matter at issue were not incompatible with the directive does not appear to me to be relevant; proof of this is provided by the fact that it was nevertheless necessary to adopt a fresh measure to fulfil the obligations deriving from the directive. Indeed, I consider that, as regards the period within which the events underlying the main proceedings occurred, the directive of which the national court seeks an interpretation was applicable only from 1 January 1984 in the case of the provisions having direct effect and from 1 February 1984 in the case of the remaining provisions.

In view of the foregoing and of the particular features of the problem confronting the national court, I consider that the question referred to the Court may be deemed to be whether, under the applicable Community VAT legislation, a citizen of a Member State B who is resident in State A, where he is employed and has a house, is required to register his car in State B because, with effect from a particular date, he has spent, over a period exceeding one year, nearly every night and weekend at the house of a woman friend in State B.

5Having 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 temporar)' importation arrangements 'under conditions which [the Member States] shall lay down for the purpose of preventing . . . any possible evasion, avoidance or abuse'. Anicie 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'.

Directive 83/182 represents a first step towards harmonization in this area and provides for certain cases of temporary importation of means of transport in which the Member States are required to grant an exemption. An essential precondition for the exemption is that the importer must have his normal residence in a Member State other than the State of temporary importation.

General rules for determination of residence are laid down in Article 7; the first subparagraph of Article 7(1) provides that normal residence means 'the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties', personal ties being those 'which show close links between that person and the place where he is living'. The second subparagraph of Article 7(1) provides that, in the event of difficulty in determining a person's normal residence because he has occupational ties in one State and personal ties in another, he is deemed to have his normal residence at the place with which he has personal ties.

Finally, it should be noted that Article 9(3) of the same directive lays down special conditions for Denmark, whereby it is allowed to apply its own rules concerning residence, under which a person is regarded as having his normal residence in Denmark if he lives there for at least a year or 365 days in a period of two years.

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

First, as regards the period before the entry into force of Directive 83/182, the relevant provisions of the Sixth VAT Directive, as interpreted by the Court, support the statement that the temporary import of motor vehicles into a Member State is subject to the conditions imposed by that State, provided of course that the fundamental principles laid down by the Treaty are observed and double taxation is avoided. Now, whilst it is true that the concept of residence is not, as such, a factor in Article 14 of the Sixth Directive, the fact remains that it was already incorporated in the Danish legislation before the directive on the grant of exemptions was adopted; and, more generally, it was incorporated in the applicable legislation of the Member States, since they have all ratified the New York Customs Convention of 4 June 1954, Article 2 of which is concerned with tax-free imports, stating that each contracting State is to 'grant temporary admission ... to vehicles owned by persons normally resident outside its territory which are imported and utilized, for their private use, on the occasion of a temporary visit.'

That means that, even before Directive 83/182 was adopted, a necessary and sufficient condition for grant of the tax exemption was in fact normal residence outside the country of importation, the importation being temporary for that very reason. And the fact that the concept of normal residence was an 'internal' concept is not in fact relevant, in so far as it did not conflict either with the general Community limitations regarding free movement for persons or with the concept — undoubtedly a Community concept — of temporary importation.

As far as the latter concept is concerned, it need only be recalled that the Court, in the judgment in cited earlier, made it Ledoux clear that an import is to be classified as temporary where it can be deduced from the facts that the goods in question will subsequently be re-exported and that there is no fraudulent intent: that is equivalent to linking the imposition of the tax, essentially, with something very similar to 'normal residence'.

This is further confirmed in the judgment in Profant, in which the Court established an even clearer link between the temporary nature of the import and the precarious nature of the residence.

It is therefore clear that even before the entry into force of the directive, the necessary precondition for taxation was essentially 'normal residence' of the taxable person, both under the applicable Community legislation (the Sixth VAT Directive) and under the relevant national provisions.

7As 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 of second subparagraph 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.

That provision thus governs the very specific case in which a Community citizen works in one or more different Member States but has his family in another State, so that he stays alternately in the States in question. The reasoning underlying that provision is quite clear: the intention is to accord favourable treatment to a citizen who has his family in one Member State and, for reasons of employment, is obliged to reside in another State; and that is the case, therefore, regardless of the fact that he resides in the State with which he has personal links at least 185 days per year as required by the first subparagraph of Article 7(1).

It is doubtful, therefore, whether the present case can be brought within the scope or indeed the ratio legis of the second subparagraph of Article 7(1). I consider, in any event, that it is better to look first at the first subparagraph, which lays down general conditions for determining residence, indicating that normal residence means the place in which a person usually lives (at least 185 days in each year) because of occupational and personal ties, the latter term being 'ties which show close links between that person and the place where he is living'.

In my opinion, the provision in question is to be interpreted as meaning that the requirements which it lays down are cumulative; account must therefore be taken of all the factors involved, without particular attention being paid to any one, with the result that the quantitative criterion (for example the number of nights spent in a particular place) cannot be regarded as decisive if other factors point to a situation different from that which derives from the quantitative criterion alone.

That approach is supported by the consistent case-law of the Court concerning the definition and determination of residence, a concept which has been clarified on several occasions with respect to matters of social security, an area in which residence is governed by provisions analogous to those of the first subparagraph of Article 7(1). In that connection, it should be remembered that the Court has defined as a person's residence the place 'in which [he] has established the permanent centre of his interests' and that, for proof of residence, it is necessary to take account of all factual circumstances which constitute residence.

8Now, 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.

In Mr Ryborg's case, I am of the opinion that each and every one of those factors is present: it is undisputed that Mr Ryborg works in Germany (occupational link); it is also undisputed that he has an apartment in Germany, with the financial obligations that that entails (personal link) and that he took up residence in that country in 1973. Admittedly, having regard to the facts of the case, it is not possible to say, as from 1982, precisely how many days he spent in Germany and how many days (or rather nights) he spent in Denmark. But that may become entirely irrelevant in so far as there is nothing whatsoever to prove that he intended to move his centre of interests, and therefore his residence, to Denmark. The volitional factor, which is not in itself decisive, may in fact contribute to the classification of a place where someone stays as habitual and therefore as a residence, where it is not possible clearly to distinguish one place from others.

The competent Danish authorities based their contentions on the fact that Mr Ryborg's relationship with his Danish friend involved the transfer of his residence from Germany to Denmark, thus determining that his circumstances constituted a case of cohabitation and, as such, could be assimilated to marriage.

Regardless of the fact that marriage, in view of the legal bonds inherent in it, cannot simply be placed on the same footing as u cohabitation, I consider that in the present case, in the absence of any factor which might establish that Mr Ryborg was living with his friend, there can be no question of cohabitation either; for example, there is nothing to show that Mr Ryborg ever moved furniture or other personal effects to Denmark or that he contributed in any way to the household expenses. His position is, in fact, that of a guest in his friend's house and, moreover, there is nothing in the documents before the Court to show that Mr Ryborg manifested any intention to move permanently into his friend's house.

That is not all: the Danish authorities contend that Mr Ryborg transferred his residence to Denmark as from

12 November 1982, the date on which, as I have said, he crossed the frontier for the first lime in his new car, a fact which was also confirmed at the hearing. This is indeed a strange coincidence, which cannot but cause surprise: Mr Ryborg's personal links, and therefore the 'transfer' of his residence, came into being only when he purchased a new vehicle and used it for the first time in Danish territory.

The fact is, it seems to me, that the Danish authorities are confusing the chargeable event (residence in Denmark) and the entry of the goods (the motor vehicle) into Denmark, and they even treat the two points in time as the same. Moreover, they adopted that approach only when he bought a new car but, curiously, not at an earlier stage when he likewise crossed the frontier in his old car, which was also registered in Germany. And in fact, no other factor prompts the conclusion that Mr Ryborg first established stable emotional ties in Denmark on 12 November 1982 — links of such a nature as to support the view that he had transferred his residence to Denmark — except the fact that he crossed the frontier in a car registered in Germany some days earlier.

9In 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).

For the sake of completeness, I will say at this stage that in the course of the hearing a profound disagreement became apparent between the Commission and the Danish Government regarding the rule applicable in Denmark for determining residence. According to the Commission, only Article 9(3) is applicable, which, as will be recalled, provides that a person is regarded as resident in Denmark if he remains there at least one year or 365 days within a period of two years. The Danish Government, on the other hand, considers that provision to be supplementary to Article 7.

I consider that it is necessary, in any event, to refer to Article 7 to identify the components of the [Community] concept of normal residence. In any event, even if, as the Commission maintains, the rule applicable to the present case is only Article 9(3) and not Article 7(1), albeit subject to the limitations and according to the meaning used here, the same conclusion would be reached anyway. In fact, the observations so far made concerning determination of residence, in particular the conclusion that Mr Ryborg maintained his normal residence in Germany and never transferred his residence to Denmark, remain valid.

10The 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.

However, I think I must, for the sake of completeness and having regard to the division of powers between the Community Court and the national court under Article 177, also give an answer to those questions, which, it will be remembered, are whether Article 10(2) of Directive 83/182 imposes on the two Member States concerned an absolute obligation to consult each other, whenever a specific case arises; and whether that provision has direct effect.

I would point out in the first place that, according to the provision in question, where 'the practical application of [the] directive gives rise to difficulties, the competent authorities of the Member States concerned shall take the necessary decisions by mutual agreement, particularly in the light of the conventions and Community directives on mutual assistance'.

The very wording of the provision shows that there is an obligation for Member States to cooperate, if and when difficulties arise in the practical application of the directive. According to the Commission, such an obligation arises when two Member States both call for the registration of the same car. There is no doubt that such a case involves difficulties of application; however, it is also beyond doubt that the difficulties are purely of interpretation.

It seems to me very doubtful that the obligation in question relates not only to procedural difficulties but also to difficulties of interpretation — thus involving the very interpretation of the directive by the competent authorities of the various Member States — since, in such circumstances, it will always be for this Court to decide as to the correct interpretation of the provisions of the directive.

Furthermore, the fact that the Member States are to 'take the necessary decisions by mutual agreement' and the reference to the Community directives on mutual assistance seems rather to support the view that the reference is to procedural decisions in the broad sense and not to decisions on specific individual cases.

The foregoing observations therefore prompt me to conclude that the obligation of cooperation referred to in Article 10(2) does not involve an obligation of consultation between Member States concerning each specific case but rather a more general obligation enabling consistent decisions to be arrived at where the application of the directive in question gives rise to procedural difficulties of an administrative nature. issue is without doubt conditional, in so far

11. As regards the last question, namely

whether Article 10(2) has direct effect and as it requires the Member States to thus confers on individuals rights which cooperate where difficulties arise in the they can rely on in legal proceedings, it application of the directive.

seems to me that the answer must be negative and that few comments are called for. It is well known that, by virtue Finally, it hardly needs saying that, in so far of consistent and now well-established as Article 10(2) is not directly applicable, l2 case-law, there are regarded as directly and since the directive in question was applicable provisions those which impose implemented in Denmark after the expiry of clear, precise and unconditional obligations, the prescribed period, the provision in so that no margin of discretion is left to the question is not in any event applicable to the Member States. However, the provision at facts of the case before the national court.

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

'l ) The applicable Community VAT legislation precludes a Member State B from requiring the registration and payment of taxes upon importation of a vehicle by one of its citizens who has established his residence in a Member State A where he works and lives in an apartment, even where the person concerned has, for more than a year, spent nearly every night and many weekends in the house of a woman friend in State B.

2) The obligation laid down by Article 10(2) of Directive 83/182 does not require consultation regarding every individual practical case in which difficulties arise in applying the directive.

3) The provision in question does not have direct effect.'

Notes

(2) Directive 77/388, OJ 1977 L 145, p. 1.

(3) Case 249/84 Ministire publique v Profant [1985] ECR

(323) 7, paragraph 23.

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

(5) United Nations Treaty Series, Volume 282, p. 249.

(6) Supra, paragraph 15. RÌ'BORG

(7) paragraph Supra, 27

(8) 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).

(9) Judgment in Case 13/73 Angtnkux [1973] ECR 935; see also Case 76/76 [1977] ECR 315 and Case Di Paolo

(284) /87 Scbäflein v Commission [1988] ECR 4475 and, most recently, Case 216/89 ECR 4163. Reibold [\·)90]

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

(11) See the judgment in Case 59/85 Aee¿[1986] ECR 1283.

(12) See for example lhe ludgmenis in Case 148/78 [1979] Ram FCR 1629, Case 8/81 Bedrr [1982] LCR 53 and Case

(31) /87 GAmeden Beenljes [1988] ECR 4635