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Cancellation of Classification Fee – The 4798/2023 Decision of the Administrative Court of First Instance of Thessaloniki – The invocation of Decisions of the Court of Justice of the European Union

The Administrative Court of First Instance of Thessaloniki, in a case successfully handled by our office, canceled, with the no. 4798/2023 Decision of, act of imposing a supplementary classification fee, due to non-observance of the legal procedure on the part of the Thessaloniki Customs. 

The Treaty on the Functioning of the European Union states in Article 110 that: "No Member State shall impose directly or indirectly on the products of other Member States internal taxes of any kind, higher than those imposed directly or indirectly on similar national products. …”.

The Administrative Court of First Instance of Thessaloniki ruled that: "According to what is firmly accepted by the Court of the European Union, there is a violation of Article 110, first paragraph, TFEU, when the tax affecting the imported product and that affecting the similar domestic product are calculated in a different way and according to different methods , resulting, in some cases only, in the higher taxation of the imported product (ECJ decisions of 22 February 2001, C-393/98, Gomes Valente, SC. 21, of 29 April 2004, C-387/01, Weigel, § 67, of January 18, 2007, C-313/05, Brzeziński, § 29, and of September 20, 2007, C-74/06, Commission v. Greece, § 25). In particular, in the field of the import of used vehicles, it has been judged that the regulation of a member state for the imposition of a differentiated excise duty on motor vehicles is contrary to the above provision, since this regulation implies the different tax burden on the one hand for used vehicles imported from other member states and on the other hand, used vehicles that have already been registered in the said state, having previously been imported into that state as new vehicles (see CJEU decision of 3 June 2010, C-2/09, Kalinchev, § 47), given that according to the collection of a registration fee in a certain Member State, the amount of that fee is incorporated into the value of the vehicle and, therefore, when a vehicle which has been registered in that Member State is subsequently sold as second-hand in the same Member State, its market value includes remaining amount of the registration fee and is equal to a percentage of its original value, determined based on the impairment of the original value of the vehicle in question (CJEU decisions of 19 December 2013, C-437/12, X, sc. 30 and of 5 October 2006, C-290/05 and C-333/05, Nádasdi and Németh, sk. 54).

The Partner of our Office, Lawyer, Mr Ioannis Thomaidis

The body of the decision is listed. 


Decision number: 4798/2023

THE ADMINISTRATIVE COURT OF FIRST INSTANCE OF THESSALONIKI

SECTION G SINGLE MEMBERS

He met publicly in his audience on 12-5-2023 with Judge Alcisti Siarkou, First Judge D.D., and clerk ……………… court clerk, to judge the appeal with filing number 1026/14-6-2021 ,

 of ……………………………, a resident of Thessaloniki, represented by attorney Ioannis Thomaidis,

against the Greek State, which is represented in this case by the Head of the Customs District of Thessaloniki, ……………., who did not appear at the hearing but submitted the statement filed on 4-5-2023 pursuant to article 133 par. 2 of Code of Administrative Procedure.

 During the discussion, the party who appeared and presented himself developed his allegations and requested what is mentioned in the minutes.

 The judgment of the Court is as follows:

1. Because, for the exercise of the appeal in question, the legal proportionate fee of 82.52 euros has been paid (see the 38219940695108130040 e-receipt and the relevant proof of payment).

 2. Because, with this appeal, the appellant asks for the annulment, otherwise the amendment of the 15807/27-4-2021 act of supplementary certification of customs charges of the Head of the 1st Customs Department of Thessaloniki, in the amount of 8,251.30 euros.

 3. Because the Treaty on the Functioning of the European Union states in article 110 that: "No member state shall directly or indirectly impose internal taxes of any kind on the products of other member states, higher than those imposed directly or indirectly on similar national products. ...". According to what is firmly accepted by the Court of the European Union, there is a violation of Article 110, first paragraph, TFEU, when the tax affecting the imported product and that affecting the similar domestic product are calculated in a different way and according to different methods, resulting, in some cases only, in the higher taxation of the imported product (ECJ decisions of 22 February 2001, C-393/98, Gomes Valente, SC, 21, of 29 April 2004, C-387/01, Weigel, SC 67, of January 18, 2007, C-313/05, Brzeziński, § 29, and of September 20, 2007, C-74/06, Commission v. Greece, § 25). In particular, in the field of the import of used vehicles, it has been judged that the regulation of a member state for the imposition of a differentiated excise duty on motor vehicles is contrary to the above provision, since this regulation implies the different tax burden on the one hand for used vehicles imported from other member states and on the other hand, used vehicles that have already been registered in the said state, having previously been imported into that state as new vehicles (see CJEU decision of 3 June 2010, C-2/09, Kalinchev, § 47), given that according to the collection of a registration fee in a certain Member State, the amount of that fee is incorporated into the value of the vehicle and, therefore, when a vehicle which has been registered in that Member State is subsequently sold as second-hand in the same Member State, its market value includes remaining amount of the registration fee and is equal to a percentage of its original value, determined based on the impairment of the original value of the vehicle in question (CJEU decisions of 19 December 2013, C-437/12, X, sc. 30 and of 5 October 2006, C-290/05 and C-333/05, Nádasdi and Németh, sk. 54).

 4. Because, furthermore, article 121 of Law 2960/2001 "National Customs Code" (A' 265 - Tax Code), as it was in force at the relevant time, defined that: "1. Passenger cars of tariff class 87.03 of the Combined Nomenclature (Regulation EEC 2658/1987 of the Council of 23 July 1987 OJ of 07.09.1987) are subject to a classification fee on the taxable value as it is formed based on the provisions of article 126 hereof and article 4 of Law 1573/1985 (Government Gazette 201 A), as applicable. 2. The coefficients of the classification fee of the previous paragraph are defined as follows: ... 3. ... 7. In the event that the owner of a used Community passenger car, with a first registration license of a member state of the European Union, issued before June 1, 2016, estimates that the registration fee to be imposed, as verified, in accordance with the provisions of paragraphs 2, 3 and 4 and the provisions of article 126 of this law, exceeds the remaining registration fee that is incorporated in a similar, of the same brand and type of used car or in the absence of these in a similar or similar vehicle that has already been registered in the country before the said date, has the right to request the calculation of the historical registration fee from the Special Commission of the second paragraph of paragraph 4 of article 126. For the calculation of the historical registration fee, the applicable coefficients of the registration fee and the applicable elements of the formation of the taxable value, at the time of the car's first registration in a member state of the European Union, are taken into account. The registration fee for the cars in question, is confirmed according to the smaller amount, as found between the historical registration fee and the registration fee, as calculated, in accordance with the provisions of paragraphs 2, 3 and 4 of this article and the provisions of article 126 of this law. With the decision of the fourth paragraph of par. 5 of article 126, the elements that must be taken into account by this Committee and any other necessary detail for the implementation of this paragraph are determined [as par. 7 was replaced by par. 6 of Article 59 of Law 4389/2016 (A' 94)]. 8. ...". Subsequently, with article 9 par. 1 of Law 4714/2020 (A' 148) the above article 121 of the Tax Code was replaced, except in par. 3 para. a' of the same above article 9 of Law 4714/2020 defined that: "Paragraph 7 of Article 121 of Law 2960/2001 (A`265), as it was in force before its amendment herewith, is still valid for passenger cars, with a registration of a member state of the European Union, which has been issued before June 1, 2016, for which the classification fee has been confirmed and an application for the calculation of the historical classification fee has been submitted by the date of this filing by the Special Committee of the second paragraph of par. 4 of article 126, even if a decision has not been issued at the time this comes into effect. At the request of the interested parties, the certification and collection of the registration fee for the above vehicles can be carried out in accordance with paragraphs 2, 3 and 4 of article 121 of Law 2960/2001 (A΄ 265), as amended by article 1 hereof. b) ..." Besides, in the explanatory statement of the aforementioned Law 4389/2016, which introduced the historical registration fee, it is stated that: "Especially, for used Community passenger cars, with a first registration license of a member state of the European Union, issued before 1 June 2016, the proposed date of validity of the provisions, the possibility of an alternative way of calculating the registration fee is foreseen, with the provisions that were in force in our country (historical registration fee), on the date of their first circulation in the EU, in order to avoid of any distinction in the tax treatment between new and used passenger cars in the planned proposal and taking into account relevant decisions of the Court of Justice of the EU, according to which the amount of tax to be imposed on a used vehicle should not exceed what is incorporated in a vehicle already in circulation and taxed in the country, as well as that the imposition of a tax should not discourage the purchase of similar used cars from another m-m. Regardless of this provision, the avoidance of discrimination is ensured by the significant reduction of the coefficients of the classification fee, which compensates for the increase in the basis of its imposition".

 5. Because, finally, with F.1208/662/2006 circular order of the General Director of Customs and E.F.K. of the Ministry of Economy and Finance (E.D.Y.O.O.) provided for a procedure of immediate receipt of vehicles before the formation of their taxable value and their classification. In the above E.D.Y.O.O. it is stated that "for the convenience of those dealing with the other Customs Offices of the country, apart from the Attica and Thessaloniki Customs Offices [the application of this circular was extended to the customs offices of the Prefecture of Thessaloniki for the disputed period with DEFK D 1092381 EX 2017 circular order of the General Director of Customs and E.F.K. of A.A.D.E.], we clarify to you that when the cars are put up for sale and with the express will of the owner for immediate collection on a responsible declaration, the corresponding tax charges on the cars will be confirmed and collected immediately, including the classification fee, based on the information listed in the consumption documents, while in order to cover the additional debt that will arise due to any difference between the final calculated and the declared taxable value, you will claim the presentation of sufficient at your discretion and in accordance with the data available in the customs services of a similar or the same type of vehicle of monetary (deposit) or bank guarantee, after the deposit of which you will proceed with the issuance of the relevant registration certificate and as the taxable value thereof, the stated in the documents will be indicated".

 6. Because, in this case, the following emerges from the data in the file: The appellant filed on 22.5.2018 with the competent 1st Import-Export Customs of Thessaloniki the number …………. declaration of excise duty (E.F.K.) and other taxes, requesting the customs clearance of a passenger vehicle manufactured by a BMW factory, with chassis number …………………, stating at the same time the desire to calculate the due registration fee based on the provisions of par. 7 of article 121 of the Tax Code (historical classification fee), paying the relevant fee of 300.00 euros to start the process. Furthermore, the appellant requested the immediate customs clearance of the above vehicle, pursuant to F.1208/662/2006 E.D.Y.O.O. before the determination and formulation of its taxable value, with the simultaneous deposit of a bank guarantee of 6,000 euros. On 25.5.2018, a special verification slip was sent to the Customs Region of Thessaloniki on ………….. for the above vehicle, on which, on 15.1.2019, the above service determined the maximum retail price before taxes (taxable value) of vehicle in the amount of 51,070.11 euros. Following the dispatch by the 1st Customs House of Thessaloniki to the Customs Region of Thessaloniki of the file for the subjection of the vehicle in question to the provisions on the historical registration fee, the latter service returned the relevant file to collect the corresponding registration fee, arguing that: "the legislator with article 121 par. 7 of Law 2960/01, the assessment of the classification fee to be paid, as certified, is a condition for the application of the provisions of inclusion in the historical classification fee. However, with the application of F.1208/662/2006 E.D.Y.O.O. the customs debt is not only confirmed, but also collected". With the DEFKF D1104654 EX 2020/4.9.2020 document of the Directorate of E.F.K. and VAT-Department D' was further notified to the 1st Customs House of Thessaloniki that: "in any case, pursuant to paragraph 7 of article 121 of Law 2960/01, the corresponding classification fee is confirmed and is not collected on the basis of the declared data ... and is paid after the notification of the decision of the Special Committee to the competent customs authorities, in order for them to proceed with the certification and collection of the registration fee, as well as the issuance of the car registration certificates". In view of the above, the appellant was summoned to a hearing with the …… document of the 1st Customs House of Thessaloniki and after the unpractical expiry of the set deadline for providing explanations, the already challenged deed of additional charge of classification fee was issued, with which (according to the reasoning of which is included in the same notification document) it was decided that it is not possible to apply the provisions of par. 7 of article 121 of the Tax Code. on historical classification fee in the disputed case and the due classification fee was calculated on the basis of the maximum retail price before taxes determined by the competent customs authority in the amount of 8,251.30 euros.

 7. Because, already with the adjudicated appeal, as developed with the legally filed memorandum, the appellant claims that the disputed classification fee was unlawfully imposed on him, as it was erroneously not applied by the article 121 par.7 of law 2960 /2001.

 8. Because, with the provisions of paragraph 7 of article 121 of the Tax Code referred to in the main paragraph. regarding historical classification fee, the legislator sought, according to the explanatory statement of this law, to avoid any discrimination in the tax treatment between new and used passenger cars, in compliance with the relevant jurisprudence of the Court of Justice of the EU. regarding the interpretation of article 110 SLEE, as it is quoted. And according to the decisions of the last above-mentioned Court, the amount of the registration fee imposed upon the import of a used vehicle should not exceed the amount of the remaining registration fee that is incorporated in a similar domestic product, i.e. in a used vehicle with similar characteristics that is in circulation in Greek territory and resold within it. And yes, the challenged decision is based on the narrow grammatical interpretation of the provision of subsection a' of par. 7 of article 121 of the Tax Code, which refers to "to impose a classification fee, as certified..." (and not "as certified and is paid"), but no evidence shows that the purpose of the legislator, in view of the above ratio of the provision in question, was to exclude from its regulatory scope the cases in which the interested party actually pays the amount calculated on the basis of the listed in documents of consumption of data, registration fee, in order to be able to undergo the procedure of immediate receipt of the vehicle of Φ.1208/662/2006 E.D.Y.O.O., providing a sufficient guarantee to cover any higher debt. This is because, on the one hand, the above-mentioned circular order exclusively seeks to facilitate the dealers and not to deprive them (in the case of taking advantage of the possibility of immediate collection of their vehicles with payment of a guarantee) from rights recognized by the provisions of formal laws, on the other hand, any contrary interpretive approach (such as that followed by the contested act) may lead to a differentiated tax treatment of imported second-hand Community passenger cars with first registration before 1 June 2016 for which the buyer has chosen their immediate receipt compared to identical or similar vehicles that had been classified in Greece before that date, i.e. in a result that is expressly disapproved both by the Union law and by the national legislator, who introduced the provisions on the historical classification fee in order to avoid such an eventuality. Consequently, the disputed supplementary classification fee was unlawfully imposed on the appellant, and the examination of the other reasons presented is omitted as futile.

 9. Because, in accordance with the above, the considered appeal must be accepted, the deed of additional certification of customs charges of the Head of the 1st Customs Office of Thessaloniki with number 15807/27-4-2021 must be canceled and the case referred to the competent customs authority, in order to determine, through the legal procedure, the historical classification fee owed by the appellant, in accordance with the provision of par. 7 of article 121 of the Tax Code, as it was in force at the relevant time. Furthermore, the applicant must be awarded the registered fee (article 277 par. 9 section a' of the Civil Code) and, based on the current circumstances, the defendant must be exempted from the applicant's legal costs (article 275 par. 1 section e' of the Civil Code).

Because of this

He accepts the appeal.

 Annuls the deed with number 15807/27-4-2021 of additional certification of customs charges of the Head of the Directorate of the 1st Customs of Thessaloniki.

 Refers the case to the competent customs authority in order to determine, through the legal procedure, the historical classification fee owed by the appellant, in accordance with the provision of par. 7 of article 121 of the Tax Code, as it was in force at the relevant time.

 It orders the return to the applicant of the fee paid.

 It exempts the defendant from the court costs of the applicant.

 Judged, decided and published in Thessaloniki on 23-11-2023 in an extraordinary, public meeting in the audience of this Court.


 

 

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