The Administrative Court of First Instance of Thessaloniki, in a case successfully handled by our office, annulled, with its Decision No. 3737/2024, an act of additional registration fee charging, 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 Court, accepting the relevant grounds of our appeal, ruled that: “InAccording to what is consistently accepted by the Court of Justice of the European Union, there is an infringement of Article 110(1) TFEU when the tax imposed on the imported product and that imposed on the similar domestic product are calculated differently and according to different methods, resulting, even in certain cases only, in higher taxation of the imported product (ECJ judgments of 22 February 2001, C-393/98, Gomes Valente, para. 21, of 29 April 2004, C-387/01, Weigel, para. 67, of 18 January 2007, C-313/05, Brzeziński, para. 29, of 20 September 2007, C-74/06, Commission v Greece, para. 25). In particular, in the field of the import of second-hand vehicles, it has been held that the regulation of a Member State imposing differentiated excise duty on motor vehicles is contrary to the above provision, since this regulation entails a different tax burden on, on the one hand, second-hand vehicles imported from other Member States and, on the other hand, second-hand vehicles already registered in that State, after having previously been imported into that State as new vehicles (CJEU judgment of 3 June 2010, C-2/09, Kalinchev, para. 47), since when a registration tax is levied in a given Member State, the amount of that tax is incorporated into the value of the vehicle and, therefore, when a vehicle registered in that Member State is subsequently sold as second-hand in the same Member State, its market value includes the remaining amount of the registration tax and is equal to a percentage of its original value, determined on the basis of the depreciation of the original value of that vehicle (CJEU judgments of 19 December 2013, C-437/12, X, para. 30, and of 5 October 2006, C-290/05 and C-333/05, Nádasdi and Németh, para. 54)”.
An excerpt from no. 3737/2024 Decision of the Administrative Court of First Instance of Thessaloniki
Decision Number 3737/2024
THE SINGLE MEMBERS
ADMINISTRATIVE COURT OF FIRST INSTANCE THESSALONIKI
SECTION G`
He sat in public in his courtroom, on May 12, 2023, with Judge Sultana Skoura, First Instance Court, and the court clerk ………… as secretary, to try the appeal with number and date of registration PR979/7-6-2021 and National Case Number 2021013857,
of ……………………. of ………………………, resident of Thessaloniki, …………… no. ……, represented by her attorney-in-fact Thomas Kalokyris,
against the Greek State and already the Independent Public Revenue Authority (A.A.D.E.), as representative of the State, which is legally represented in this case by the Head of the Customs Region of Thessaloniki (articles 1 par. 1, 36 par. 1, 41 par. 4 and 43 of Law 4389/2016, A' 94), for which the above Head was represented, with the declaration filed on 4-5-2023 under article 133 par. 2 of the Code of Administrative Procedure (Law 2717/1999 - A'97), as in force,
During the discussion of the case, the party who appeared in the hearing developed his claims and requested what is stated in the minutes. After the hearing, the Court studied the case file and its judgment is as follows:
1. Because, with the appeal under consideration, for the exercise of which the legal proportional fee of 109.80 euros was paid (see 380587456951 0806 0031 electronic fee of the General Secretariat of Information Systems, in combination with the relevant proof of commitment), the cancellation of the additional classification fee charge of the Head of the First Directorate of Import-Export Customs of Thessaloniki, dated 12-4-2021, for a total amount of 13,603.15 euros, in which reference is made to the already paid classification fee of 3,505.00 euros, is requested, admissibly, according to the interpretation of the appeal pleading.
2. Because, the Treaty on the Functioning of the European Union (TFEU) states in Article 110 that “No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar national products…” According to what is consistently accepted by the Court of Justice of the European Union, there is a violation of Article 110(1) TFEU. first of the TFEU, when the tax on the imported product and that on the similar domestic product are calculated differently and according to different methods, resulting, even in certain cases only, in higher taxation of the imported product (ECJ judgments of 22 February 2001, C-393/98, Gomes Valente, para. 21, of 29 April 2004, C-387/01, Weigel, para. 67, of 18 January 2007, C-313/05, Brzeziński, para. 29, of 20 September 2007, C-74/06, Commission v Greece, para. 25). In particular, in the field of the import of second-hand vehicles, it has been held that the regulation of a Member State imposing differentiated excise duty on motor vehicles is contrary to the above provision, since this regulation entails a different tax burden on, on the one hand, second-hand vehicles imported from other Member States and, on the other hand, second-hand vehicles that have already been registered in that State, after having previously been imported into that State as new vehicles (ECJ judgment of 3 June 2010, C-2/09, Kalinchev, para. 47), given that when a registration tax is collected in a certain Member State, the amount of that tax is incorporated into the value of the vehicle and, therefore, when a vehicle that has been registered in the Member State concerned is subsequently sold as second-hand in the same Member State, its market value includes the remaining amount of the registration tax and is equal to a percentage of the initial value. its value, determined on the basis of the depreciation of the original value of the vehicle in question (ECJ judgments of 19 December 2013, C-437/12, X, para. 30, and of 5 October 2006, C-290/05 and C-333/05, Nádasdi and Németh, para. 54).
3. Furthermore, Article 121 of Law 2960/2001 "National Customs Code" (A' 265), as in force at the relevant time, stipulated that "1. Passenger cars of tariff heading 87.03 of the Combined Nomenclature (EEC Regulation 2658/1987 of the Council of 23 July 1987, OJ of 07.09.1987) are subject to registration duty on the taxable value as determined on the basis of the provisions of Article 126 hereof and Article 4 of Law 1573/1985 (Government Gazette 201 A'), as in force. 2. The registration duty rates of the previous paragraph are defined as follows: … 3. … 7. (as this paragraph was replaced by paragraph 6 of article 59 of law 4389/2016, A' 94) In the event that the owner of a used Community passenger car, with a first registration certificate of a Member State of the European Union, issued before 1 June 2016, estimates that the registration fee to be imposed, as certified, 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 integrated into a similar, of the same make and type of used car or, in the absence thereof, into a similar or similar vehicle that has already been registered in the country before the said date, he has the right to request the calculation of the historical registration fee by the Special Committee of the second paragraph of par. 4 of article 126. For the calculation of the historical registration fee, the applicable registration fee rates and the applicable elements for the formation of the taxable value are taken into account, at the time of the first circulation of the car in a Member State of the European Union. The registration fee for the cars in question is determined according to the lower amount, as resulting 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. By the decision of the fourth paragraph of paragraph 5 of article 126, the elements that must be taken into account by this Committee and any other necessary details for the application of this paragraph are determined. 8. …". Subsequently, by article 9 paragraph 1 of law. 4714/2020 (A' 148) replaced the above article 121 of the National Customs Code, however, in par. 3, paragraph a' of the same above article 9 of law 4714/2020 it was stipulated that "Par. 7 of article 121 of law 2960/2001 (A' 265), as it was in force before its amendment by this, continues to apply to passenger cars, with a registration certificate of a member state of the European Union, issued before June 1, 2016, for which the registration fee has been confirmed and an application for the calculation of the historical registration fee has been submitted by the date of filing of this document by the Special Committee of the second paragraph of par. 4 of article 126, even if no decision has been issued upon the entry into force of this document. Upon request of the interested parties, the certification and collection of the registration fee for the above vehicles may be carried out in accordance with paragraphs 2, 3 and 4 of article 121 of law 2960/2001 (Government Gazette A' 265), as amended by article 1 hereof. " Moreover, in the explanatory memorandum of the above law 4389/2016, which introduced the historical registration tax, states that "In particular, for used Community passenger cars, with a first registration certificate of a Member State of the European Union, issued before 1 June 2016, the date of the proposed entry into force of the provisions, the possibility of an alternative method of calculating the registration tax is provided, with the provisions in force in our country (historical registration tax), on the date of their first circulation in the EU, with the aim of avoiding any discrimination 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 that incorporated in a vehicle already in circulation and taxed in the country, and also that the imposition of a tax should not discourage the purchase of similar used cars from another country. Regardless of the said provision, the avoidance of discrimination is ensured by the significant reduction in the rates of the registration tax, which compensates for the increase in its tax base.
4. Because, finally, with the circular order of the General Director of Customs and E.F.K. of the Ministry of Economy and Finance (EDYOO) a procedure for immediate receipt of vehicles was provided for before the formation of their taxable value and their classification. In the aforementioned E.F.K., which at the relevant time also applied to the customs offices of Thessaloniki, by virtue of the circular order of the General Director of Customs and E.F.K. of the A.A.D.E., it is stated that "for the convenience of those trading ..., we clarify that upon the release of the cars for consumption and with the expressed will of its owner for immediate receipt upon a responsible declaration, the corresponding tax charges on the cars, including the registration fee, will be confirmed and collected immediately, based on the data recorded in the consumption documents, while to cover the additional debt that will arise due to any difference between the final formed and the declared taxable value, you will demand the presentation of a sufficient, at your discretion and according to the data available in the customs services, of a similar or the same type of vehicle, a monetary (deposit) or bank guarantee, after the deposit of which you will proceed to issue the relevant registration certificate and as a taxable value thereon, you will "the declared value is indicated in the documents".
5. Whereas, in this case, the following emerges from the information in the case file: On 9-5-2018, the applicant submitted to the competent First Customs Office of Imports and Exports of Thessaloniki the declaration of excise duty (EFK) and other taxes under number 18GREF200100039205 for the customs clearance of a passenger vehicle manufactured by the MERCEDES factory, with chassis number ………………………………………. At the same time, with her relevant application submitted on the same day, she requested the calculation of the registration fee due for the above vehicle based on the provisions of par. 7 of article 121 of the National Customs Code (historical registration fee), paying the relevant fee, amounting to 300 euros, for the initiation of the relevant procedure. Furthermore, the applicant requested the immediate customs clearance of the above vehicle, pursuant to Law No. 1208/662/31-7-2006 E.D.Y.O.O., for its immediate receipt, before the determination and formation of its taxable value, with the simultaneous deposit of a bank guarantee of 2,000 euros. Subsequently, the applicant received the said vehicle, after the customs authority proceeded with the customs clearance procedure, based on the information declared by the applicant, certified the registration fee, as determined at the amount of 3,505.00 euros, which the applicant paid (while, at the same time, the VAT due, amounting to 4,160.66 euros, was also paid) and finally proceeded to issue the relevant registration certificate. On the same day as above (9-5-2018), the special verification form with registration number 22985 was sent to the Customs District of Thessaloniki for the above vehicle, on which the above service determined, on 14-1-2019, the Maximum Retail Price before taxes (taxable value) of this at the amount of 50,516.75 euros. After the transmission from the First Customs Office of Thessaloniki to the Customs Region of Thessaloniki of the file for the subjection of the vehicle in question to the provisions of the historical registration fee, the latter service, with its 12532/9-4-2019 document, returned the relevant file for the collection of the corresponding registration fee, expressing the opinion that “the legislator, with article 121, par. 7 of Law 2960/01, sets as a condition for the application of the provisions of subjection to the historical registration fee, the assessment of the registration fee to be paid, ... “as certified”. However, with the application of Law 1208/662/063 E.D.Y.O., the customs debt is not only certified, but also collected”. With the DEFKF D1104654 EX 2020/4-9-2020 document of the Directorate of E.F.K. and V.A.T. – Department D' of A.A.D.E. was further notified to the First Customs Office of Imports – Exports of Thessaloniki that “In any case, pursuant to par. 7 of article 121 of Law 2960/01, the corresponding registration fee is confirmed and not collected based on the declared data … and is paid following the notification of the decision of the Special Committee to the competent customs authorities, in order for them to proceed with the confirmation and collection of the registration fee, as well as the issuance of the vehicle registration certificates …”. In view of the above, the applicant was summoned to a hearing with the 57264/22-12-2020 document of the First Customs Office of Imports – Exports of Thessaloniki and, in response, filed, on 6-4-2021, a written memorandum, in which it set out its views and objections. Subsequently, the contested act of additional registration fee was issued, by which (according to its justification, as included in its notification document of the same number) it was deemed that it is not possible to apply the provisions of par. 7 of article 121 of the National Customs Code on historical registration fee in the disputed case and therefore, the registration fee due was calculated on the basis of the maximum retail price before taxes of the vehicle determined by the competent customs authority, amounting to 50,516.75 euros and was determined at the amount of 13,603.15 euros, with a mention that a fee has already been paid for the same reason 3,505.00 euros (the applicant's debt thus amounts to 10,098.15 euros). Already, with the appeal under consideration, as developed in the memorandum legally filed on 11-5-2023, the applicant claims, among other things, that the contested additional classification fee was unlawfully imposed on her, because, as she claims, the customs authorities erroneously did not apply article 121 par. 7 of law 2960/2001 in her case. On the contrary, the defendant, with its statement of views pursuant to article 129 of the Code of Administrative Procedure and dated 31-1-2023, defends the legality of the contested act and requests the rejection of the appeal, arguing what is listed above.
6. Because, with the provisions of paragraph 7 of article 121 of the National Customs Code on historical registration tax referred to in the main paragraph, as it was introduced after the replacement of the above paragraph by paragraph 6 of article 59 of Law 4389/2016, the legislator sought, according to the explanatory memorandum of this law, to avoid any discrimination in the tax treatment between new and used passenger cars, in compliance with the relevant case law of the Court of Justice of the European Union regarding the interpretation of article 110 of the TFEU, as set out in the 2nd paragraph of this judgment. According to the decisions of the latter Court, the amount of the registration fee imposed upon the import of a used vehicle should not exceed the remaining amount of the registration fee that is incorporated into a similar domestic product, namely a used vehicle with similar characteristics that circulates in the Greek territory and is resold within it. In the sense of the provision of article 121 par. 7 of the National Customs Code, cases in which the interested party is subject to the procedure of immediate receipt of the vehicle, as provided for in Law 1208/662/31-7-2006 E.D.Y.O.O., by paying an adequate guarantee, are not excluded from its regulatory scope, in view of its above purpose. This is on the one hand because the last aforementioned circular order seeks exclusively to facilitate the parties involved and not to deprive them (in the event of taking advantage of the possibility of immediate receipt of their vehicles by paying a guarantee) of rights recognized to them by provisions of formal laws and on the other hand, because any contrary interpretative approach (such as the one followed in the contested act) may lead to differentiated tax treatment of used passenger cars imported from other Member States with a first registration before 1-6-2016, for which the buyer chose their immediate receipt compared to identical or similar vehicles that had been registered in Greece before that date, i.e. to a result that is explicitly disapproved of both by EU law and by the national legislator, who introduced the provisions on historical registration tax, in order to avoid a such a possibility. Consequently, the contested additional registration fee was unlawfully imposed on the applicant on the above grounds, according to the valid arguments raised in relation to the appeal under consideration. Therefore, the examination of the other grounds raised in it is unnecessary as irrelevant.
7. Therefore, the appeal must be accepted as well-founded and the act of 12-4-2021 of the Head of the First Directorate of Import-Export Customs of Thessaloniki of additional charging of the classification fee must be annulled, and the case must be referred to the competent customs authority, in order to determine, through the legal procedure, the historical classification fee owed by the applicant, in accordance with the provision of par. 7 of article 121 of the National Customs Code, as in force at the relevant time. Furthermore, the fee paid must be returned to the applicant (see article 277, paragraph 9, subparagraph a of the Code of Administrative Procedure), while, finally, in light of the circumstances of the case, the defendant Greek State must be exempted from the applicant's legal costs (see article 275, paragraph 1, last subparagraph of the same Code).
FOR THOSE REASONS
He accepts the appeal.
Cancels the additional charge of classification fee of the Head of the First Import-Export Customs Office of Thessaloniki, dated 12-4-2021.
It refers the case to the competent customs authority, in order to determine, through the legal procedure, the historical registration fee owed by the applicant for the passenger vehicle manufactured by the MERCEDES factory, with chassis number ………………………………, in accordance with the provision of paragraph 7 of article 121 of the National Customs Code, as in force at the relevant time.
Orders the reimbursement to the applicant of the fee paid.
The defendant Greek State is exempted from the applicant's legal costs.
It was judged and decided in Thessaloniki, on 29-7-2024, where it was published, in an extraordinary public session in the audience of this Court, on 31-7-2024.
THE JUDGE THE SECRETARY
Thomas Kalokiris
MDE lawyer
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