Subject: Reasoned opinion regarding the Norwegian legislation concerning taxation on the import of second-hand vehicles

Reference is made to the Authority’s reasoned opinion dated 16 February 2005, notified to the Norwegian delegation to the European Community 18 February 2005, regarding the taxation on second-hand vehicles imported to Norway.

The EFTA Surveillance Authority declares as its reasoned opinion that by failing to guarantee that the amount of registration tax payable upon registration of second-hand vehicles imported from other EEA States does not exceed, even in a few cases, the amount of residual tax incorporated in the value of similar vehicles already registered in the national territory, Norway has failed to fulfil its obligations arising from Article 14 of the EEA Agreement.

Pursuant to the second paragraph of Article 31 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Surveillance Authority requires the Norwegian Government to take the measures necessary to comply with the reasoned opinion within two months following notification.

The Norwegian Government has previously stated the opinion that the Norwegian tax regime on imported second-hand vehicles is compatible with Article 14 of the EEA Agreement. However, in light of the arguments put forward by the Authority the Norwegian Government accepts the Authority’s view on this matter and has decided to amend the legislation concerning taxation of imported second-hand vehicles.

In Gomes Valente 1C-393/98 Ministério Público and António Gomes Valente v Fazenda Pública the Court referred to earlier judgments regarding registration tax, and recollected, the principle formulated in Nunes Tadeu 2C-345/93 NunesTadeu, that it is incompatible for a member State to charge a tax on second-hand vehicles from another member State which, being calculated without taking the vehicles actual depreciation into account, exceeds the residual tax incorporated in the value of a similar second-hand vehicle already registered in the national territory. Avoiding the administrative burden inherent in such a system the Court does not however preclude a Member State from using a fixed scale to calculate a value for second-hand vehicles on the basis of criteria such as age, kilometrage, general condition etc which as a general rule is very close to their actual value.

The Court also seems to accept that a fixed scale, whilst reflecting the general trend of depreciation in vehicles but only in an imprecise manner, might nevertheless be compatible with Article 90 of the Treaty if the owner of an imported vehicle had an opportunity to challenge the application of that scale.

The calculation of the maximum amount of tax chargeable on an imported second-hand vehicle presupposes the existence of a similar second-hand vehicle in the domestic market. To be able to find the residual tax incorporated in the value of a similar second-hand vehicle already registered in the national territory the following method must be followed:

(1) Determine how much tax would have been chargeable on the car at hand if it had been imported when new,

(2) Calculate by how much the value of the second-hand vehicle has depreciated in the domestic marked of the importing state.

(3) Deduct from the amount of tax determined in point 1 an amount proportional to the actual depreciation calculated in point 2.

Finding the actual depreciation of the car at hand, presupposes that the value of the car in its actual second-hand condition can be determined. Whatever method is used to determine depreciation in the value of the second vehicle, it has to be wholly transparent so that a national judge is able to take a decision when a taxable person considers that application of the method in question to the vehicle he has imported means that he is taxed more heavily than the buyer of a given similar vehicle on the domestic marked.

The Norwegian Government will alter the taxation of second hand vehicles in accordance to the jurisprudence of the Court. The necessary implementation will be started as soon as possible.

For a transitional period we will consider to still apply the fixed table set down in regulation No 268 to all used cars as the principal rule, but with the opportunity for the owner to ask for a second stipulation of the registration tax afterwards. The second stipulation will follow the principles described under point 2 above, and be set out to uncover the precise residual tax incorporated in the value of a similar second-hand vehicle already registered in the national territory. If so, the surplus will be refunded. Since the registration tax must be paid upon registration, and the stipulation of the registration tax according to the secondary method might take some time, this system will give the owner the opportunity to use the car without any further delay. Stipulation of the registration tax according to the secondary method may in time be made obligatory. This must however be further assessed.

The value of a used car on the domestic marked will be based on detailed, published table of prices for second-hand vehicles in the domestic marked in which prices are broken down by elements such as mark, model, age etc.

The amendments described above will be put in to action as soon as possible. Preparations for the implementation of a new system have already been started. The preparations have revealed the implementation of the new system to be complicated. Several elements have to be in place, such as the computer systems, the choice of price list to be used etc.

Such a sizeable alteration of the taxation of second hand vehicles will also need approval from the Parliament, and must be sent on a hearing.

In light of this, we encourage the Authority to have comprehension with the fact that the implementation of a new system will take some time. However, the process has already been started and we will keep the Authority informed on the development of the case. We will by the end of May 2005 send the Authority a more detailed description of the new system, and our aim is to send a proposal for a new system on hearing in May/June 2005.

Yours sincerely

Copy: The Norwegian Directorate of Customs and Excise