Brev til ESA

Dear Sir/Madam,

Subject:Complaint against Norway – importation of motor vehicles as removal good

Reference is made to the Authority’s letter dated 15 July 2003 concerning alleged breach of the principle of free movement of workers by national taxation rules on the import of motor vehicles as removal good.

1. Requirement concerning residence

As the Authority correctly points out in the letter, the rules on duty and tax-free import of motor vehicle as removal good were repealed as from 1 January 2002. This was also mentioned at the package meeting held in Oslo 1 to 2 October 2002. As from 1 June 2003, also the transitional provisions were repealed. In light of this, the Ministry of Finance finds it difficult to see why the examination of the Norwegian taxation rules concerning the import of motor vehicles as removal good by EEA nationals is still ongoing in the Authority.

However, as discussed at the above-mentioned package meeting, it followed from the now repealed Regulation No. 267 of 19 March 2001 on the exemption from or reduction of value added tax and registration on motor vehicles imported in connection with the owner taking up residence in Norway, Section 4, that one of the conditions for tax and duty free importation of motor vehicle was that the owner was not registered in the Norwegian population register for five consecutive years prior to taking up residence in Norway. This condition was an absolute condition.

As this regulation is already abolished, the Ministry of Finance has no further comment to this.

2. Requirement to register

When importing a motor vehicle to Norway, the customs office at the border grants a transit document which allows the importer to drive the vehicle on foreign registration plates until he has reported to the local customs office. It is correct that this transit document usually grants the importer a time limit of one to three days to report to the local customs office.

According to the Authority’s letter, this time limit makes it “more difficult for them to exercise their right under Article 28 of the EEA Agreement”. Furthermore, the Internal Market Affairs Directorate refers to the Court of Justice’s judgement in Case 451/99 Cura Anlagen. In light of this jurisdiction, the Directorate takes the view that the time limit is excessively short, and that it therefore appears to constitute an unjustified obstacle to the free movement of workers guaranteed by Article 28 EEA.

Article 28 EEA concerns free movement of workers. It follows from the provision that such freedom shall entail the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment. Furthermore, it shall entail the rights listed in Article 28, section 3. Amongst other things, this section secures the right to move freely within the EEA area for the purposes mentioned in section one of Article 28 EEA.

Firstly, the Ministry would like to point out that Article 28 EEA secures the right for workers to move freely within the EEA area. The provision gives EEA nationals certain rights as regards entry into, job hunting and taking up residence in a Contracting Party, and stipulates equal conditions for workers from all over the EEA area. It is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situation. It is the Ministry’s opinion, that the worker’s rights under Article 28 is not violated by the granting of a three days time limit to report to the local customs office when importing a motor vehicle. This measure neither limits the EEA national’s right to entry Norway, to take up residence here, to search for jobs, nor is it applied in a discriminatory way.

The Authority’ makes a reference to settled case law that precludes measures which preclude or deter a national of a Member State from leaving his Country of origin in order to exercise his right to freedom of movement. However, this case law is in the Ministry’s opinion not applicable to measures applied in the host Member State. Further, as regards the Authority’s reference to the Cura Anlagen-case, the Ministry cannot see that the ECJ’s judgement in this case is of direct relevance when interpreting Article 28 EEA. The Cura Anlagen-case concerns the interpretation of Article 49 EC, which lays down the principle of freedom to provide services, i.e. Article 36 EEA. According to this provision, restrictions on freedom to provide services within the EEA area shall be prohibited. In the Cura Anlagen-case, the Court states that the Member State may impose an obligation to register motor vehicles in the Member State when the vehicle is actually used in that territory without violating Article 49 EC/36 EEA. However, Member States cannot impose a time limit that is so short as to make it impossible or excessively difficult to comply with the obligations imposed having regard to the formalities which must be completed. Such short time limits would be an unjustified obstacle to the freedom to provide services, as laid down in Article 49 EC/36 EEA. The Ministry finds it difficult to see that the Cura Anlagen-case is of any relevance when interpreting Article 28. What is deemed as a restriction in the sense of Article 36 does not necessarily violate the rights laid down in Article 28.

Based on this, the Ministry takes the view that a time limit granted for reporting to the local customs office when importing a vehicle, is not contrary to the right to free movement of workers.

Yours sincerely,

Heidi Heggenes
Deputy Director General

Gry Evensen
Higher Executive Officer