Strasbourg, 12 May 2006

Dear Mr H.,

On 29 March 2004, you made a complaint to the European Ombudsman concerning the taxation of imported cars.

On 3 May 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 5 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 5 October 2004.

On 18 March 2005, I made a draft recommendation to the Commission, and informed you accordingly on the same date.

On 8 July 2005, the Commission sent me its detailed opinion on my draft recommendation. I forwarded it to you with an invitation to make observations, which you sent on 30 September 2005.

I am writing now to let you know the results of the inquiries that have been made.

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Ombudsman's Statute specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.

THE COMPLAINT

The complainant, a Danish car dealer, had written several times to the Commission about alleged breaches of Community law by Denmark in respect of car taxation. The Commission had registered an infringement complaint under the complainant's name, which it had closed in 1997 as unfounded. In 1998, the Commission had registered a new infringement complaint against Denmark under his name. The Commission and the complainant had since then frequently corresponded about the alleged breaches of Community law by the Danish authorities.

In June 2000, the complainant made a complaint to the Ombudsman (case 801/2000/PB) in which he complained that the Commission had failed to inform him about the outcome of its communications with the Danish authorities. The Commission stated that it was waiting for the outcome of two cases before the Court of Justice, and that it could therefore not provide the complainant with its final legal view on his complaint against Denmark. The Ombudsman accepted this explanation and found no maladministration, noting that the Commission had undertaken to reach a decision on the complainant's infringement complaint by October 2001.

The Commission did not, however, fulfil its undertaking to reach a conclusion on the complainant's infringement complaint by October 2001. The complainant had therefore submitted a new complaint to the Ombudsman (case 1237/2002/(PB)OV). In that case, the Commission had acknowledged the fact that issues put forward by the complainant remained to be answered. These were, in summary, the following:

(i) Taxation relating to cross-border long-term leasing of vehicles, which are registered in Germany but with an intended use in Denmark. The Commission had informed the complainant that it wanted to wait for the ruling of the Court of Justice in the Cura Anlagen case(1) before taking any other initiative as regards rules concerning cross-border long-term leasing of vehicles. The Court of Justice delivered its judgment on 21 March 2002.

(ii) Taxation of used cars imported to Denmark from another European Union country and the assessment of the value of such cars. The Commission had informed the complainant about its intention to wait for the Court's ruling in the Gomes Valente case(2). The Court's judgment in that case was delivered on 22 February 2001. In addition, the Commission had also decided to wait for the outcome of the Tulliasiamies and Siilin case(3). The judgment in that case was delivered on 19 September 2002. Furthermore, on 1 June 2001 the Commission sent a letter to all Member States to make them aware of the consequences of the Court's ruling in the Gomes Valente case. In its reply, Denmark assured the Commission that its rules were in conformity with the outcome of the Gomes Valente case. However, some of the Member States had still not replied to the Commission's letter of 1 June 2001.

In case 1237/2002/(PB)OV, the Ombudsman noted that the Commission explained its failure to respect its undertaking by stating that it preferred to take a global approach to the problems related to car taxation and that its aim was to solve these problems simultaneously in all the Member States, namely, through co-operation and by issuing a communication written in clear and simple language. The Commission further indicated that the matter at stake belonged to a field of law that was not yet harmonised. On that basis, the Ombudsman found that "the Commission’s explanation of why it did not reach a decision by October 2001, despite its undertaking to do so, is not unreasonable" (point 1.6). The Ombudsman pointed out, however, that "the complainant has the possibility of making a new complaint to the Ombudsman in the future if there is further delay by the Commission in reaching a decision on the infringement complaint" (point 1.7).

The present complaint

In the present case, the complainant stated that he received a letter from the Commission dated 20 October 2003, apparently inviting him to submit further information regarding the alleged breaches of Community law by the Danish authorities. According to the complainant, he responded to that invitation by a letter dated 2 February 2004, providing the Commission with examples of the alleged breaches and informing it about the tax payments demanded by those authorities. According to the complainant, the Commission replied that it would take no action before the final judgment in a case before the Court of Justice.

The complainant alleged that the Commission had failed to honour its commitment to reach a conclusion on his infringement complaint concerning Denmark's taxation of imported cars.

THE INQUIRY

The Commission's opinion

The complaint was sent to the Commission, which submitted, in summary, the following comments.

Legal background - investigation of complaints

When investigating complaints, the Commission complies with the provisions of the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(4). In particular the following rules should be noted: Article 3 (recording of complaints); Article 8 (time limit for investigating complaints - general rule to arrive at decision within one year, with a duty to inform the complainant if this time-limit cannot be met); Article 9 (outcome of the investigation of complaint - the Commission decides at its discretion while keeping the complaint informed); Article 10 (closure of case - rule of giving the complainant prior notice); Article 14 (complaint to the European Ombudsman).

The Commission's comments

The complaint submitted to the Ombudsman did not contain any grievances about the administrative procedure set out in the Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5) or in the Code of Good Administrative Behaviour for Commission staff in their relations with the public(6). On the contrary, the complaint criticised the Commission’s substantive handling of the complaint, that is, the fact that the Commission had not decided whether to launch infringement proceedings against Denmark concerning the taxation rules applicable to the leasing of cars and those applicable to used cars imported into Denmark. This criticism could not be accepted.

With regard to the taxation issue relating to cross-border leasing of cars, the Commission had informed the complainant in its letter of 20 October 2003 that, following the Court's judgment of 21 March 2002 in the Cura Anlagen case(7), it had asked all the Member States (and not only Denmark) to confirm whether their legal arrangements were in line with the new case-law. The letter had also stated that the area relating to cross-border leasing "is very complex and is not harmonised at present. The Commission has chosen to adopt a global approach which takes account of the situations in the various Member States. [...] The Commission therefore plans to wait until it receives the replies from the Member States to the letter which has just been sent out concerning the compatibility of their legislation with the judgement in the Cura Anlagen case before deciding whether to launch infringement proceedings".

After having received the Commission's letter of 20 October 2003, the complainant had asked the Commission, in a letter of 10 November 2003, to take action immediately against Denmark. The Commission replied to the complainant again on 12 December 2003, informing him that it would wait until it had received replies from all the Member States before deciding whether to launch infringement proceedings, and that it would take account of the documents submitted by the complainant when examining the reply from Denmark.

The Commission had still not received replies from all the Member States, despite having sent out reminders. It nevertheless pointed out that it still preferred to take a global approach and that it was legitimately using its discretion by pursing that approach. Once all the replies had been examined, the Commission would take account of all the information it had received, including the information supplied by the complainant. Once the Commission had decided whether to launch infringement proceedings against Denmark, it would naturally inform the complainant of its decision.

As the Commission pointed out in its comments to the Ombudsman concerning case 1237/2002/PB, the complainant, who appeared to be involved in several disputes with the Danish taxation authorities, could consider bringing the matter before the Danish courts. The case might then be referred to the Court of Justice for a preliminary ruling.

With regard to the issue of the taxation of imported used cars, the Commission sent a letter of 1 June 2001 to all the Member States informing them of the consequences of the judgment in the Gomes Valente case. However, certain Member States had still not replied, despite the fact that the Commission had sent them numerous reminders. As a consequence, this particular matter had not yet been examined in full. It was important to stress that, from an operational point of view, this matter needed to be handled as part of a global approach in co-ordination with the Member States. Denmark, however, had replied to the Commission's letters of 1 June 2001, and the Danish authorities considered Danish legislation to be consistent with the judgment in the Gomes Valente case. Following further correspondence with the complainant, the Commission informed the complainant in February 2004 that, as regards the taxation of vehicles, the Commission had decided to wait for the judgment of the Court of Justice in the Weigel case(8). The said judgment was handed down on 29 April 2004 and was being examined by the relevant departments in the Commission.

Conclusion

The Commission had duly replied to all the letters sent by the complainant following the Ombudsman's decision on complaint 1237/2002/(PB)OV. Each of the Commission’s replies provided detailed statements on the substance of the case. The Commission would naturally inform him personally of the outcome of his complaint.

Good administrative practice (as indicated by Communication COM/2002/14 and the Commission's Code of Good Administrative Behaviour) requires that the Commission, when deciding whether to take a Member State to court for failure to comply with Community law, take account of all the submissions put forward by the complainant, while seeking to ensure that the steps it takes to investigate the case are in proportion to the desired objective. Once the investigation has been completed, the Commission can exercise its discretion in deciding whether or not to launch infringement proceedings. In choosing to wait until all the Member States have replied before deciding whether to launch infringement proceedings against each of them, thereby adopting a global approach, the Commission is not only acting in a rational manner but was also legitimately exercising its discretion. In an infringement case, the complainant is entitled to expect that all the relevant arguments he puts forward are taken into account by the Commission when investigating the case and, if it is proposed that the case be closed, that he is given prior notice in a letter setting out the reasons for this. However, he is not entitled to demand that the Commission should launch infringement proceedings, or to demand that it should adopt his interpretation of applicable Community law. In light of the arguments set out above and the previous comments sent to the Ombudsman concerning the complaints associated with the same dossier, the Commission did not feel that it had failed in its duty of good administration vis-à-vis the complainant.

The complainant's observations

The Commission's opinion was forwarded to the complainant. In his observations, the complainant maintained his complaint.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 18 March 2005, the Ombudsman addressed the following draft recommendation to the Commission:

The Commission should adopt a decision on the complainant's infringement complaint against Denmark as quickly as possible and communicate its decision to the complainant.

This draft recommendation was based on the considerations below.

1. The complainant alleged that the Commission had failed to honour its commitment to reach a conclusion on his infringement complaint concerning Denmark's taxation of imported cars.


2. With regard to the taxation of imported used cars, the Commission stated, in its opinion of 5 August 2004, that, following the judgment in the Gomes Valente case(9), it had sent a letter to all Member States on 1 June 2001 informing them of the consequences of the judgment. However, certain Member States had still not replied, despite the fact that the Commission had sent them numerous reminders. As a consequence, this particular matter had not yet been examined in full. The Commission stated, that from an operational point of view, this matter needed to be handled as part of a global approach in co-ordination with the Member States. The Commission did, however, note that Denmark had replied to its letter of 1 June 2001, and that the Danish authorities considered Danish legislation to be consistent with the judgment in the Gomes Valente case. Following further correspondence with the complainant, the Commission informed the complainant in February 2004 that, as regards the taxation of vehicles, the Commission had decided to wait for the judgment of the Court of Justice in the Weigel case(10). The judgment of the Court of Justice in the Weigel case was handed down on 29 April 2004 and was being examined by the relevant departments in the Commission.


3. With regard to cross-border leasing of cars, the Commission referred in its opinion to its letter of 20 October 2003 to the complainant, in which it informed him that the area relating to leasing of cross-border vehicles “is very complex and is not harmonised at present. The Commission has chosen to adopt a global approach which takes account of the situations in the various Member States. [...] The Commission therefore plans to wait until it receives the replies from the Member States to the letter which has just been sent out concerning the compatibility of their legislation with the judgement in the Cura Anlagen case before deciding whether to launch infringement proceedings". The Commission stated in its opinion that it had still not received replies from all the Member States, despite sending out reminders. It nevertheless pointed out that it still preferred to take a global approach and, by doing so, was legitimately using its discretion. When all the replies had been examined, the Commission would take account of all the information it had received, including that supplied by the complainant. Once the Commission had decided whether to launch infringement proceedings against Denmark, it would inform the complainant of its decision.


4. The complainant maintained his complaint.


5. As noted in the Ombudsman's decision on the "own-initiative inquiry into the Commission's administrative procedures in relation to citizens' complaints about national authorities", adopted on 13 October 1997, it appeared from the Commission's comments in that case that "under the Commission's internal rules, a decision to close the file without taking any action or a decision to initiate official infringement proceedings must be taken within a maximum period of one year from the date when the complaint was registered, except in special cases, the reasons for which must be stated" (emphasis added).


6. Article 8 of the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(11) now provides as follows:
   "As a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General.
   Where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing."


7. The Ombudsman considered that, when the Commission informs a complainant that the time-limit will be exceeded, valid reasons must be given for the delay.


8. In the present case, it appeared to be undisputed that the one-year time-limit had been exceeded. The question was therefore whether the Commission had given valid reasons for the delay in reaching a decision on the complainant's infringement complaint.


9. In its opinion in the present case, the Commission had essentially stated that it was pursuing a global approach in co-operation with all Member States. It referred to information requests that it had sent to all Member States on 1 June 2001 and in 2002, and stated that it was still waiting for replies from some of the Member States. The Commission indicated that it that it did not intend to reach a decision on the complainant's infringement complaint against Denmark without having received and analysed the replies to these information requests.


10. In his decision on complaint 1237/2002/(PB)OV, adopted on 19 May 2003, the Ombudsman concluded that the Commission's decision to adopt a global approach could reasonably explain why there had been a delay in taking a decision on the complainant's infringement complaint by October 2001, previously indicated as the date when the Commission intended to adopt its decision. However, in the present case, the Ombudsman pointed out that he did not find that the Commission could effectively abstain from taking a decision on the complainant's infringement complaint for as long it was pursuing its global approach. In the Ombudsman's view, it did not appear consistent with the procedure applicable to the Commission's handling of infringement complaints that no decision had been adopted on the complainant's infringement complaint on the ground that the Commission had not been able to obtain information that it requested from the Member States in 2001 and 2003(12). It appeared that the Commission had had considerable time to try to obtain that information, and it was not clear why a lack of response to these information requests should still prevent the Commission from reaching a decision on individual infringement complaints. In this respect, the Ombudsman pointed out that, in accordance with the case-law of the Court of Justice, the Member States must facilitate the fulfilment of the Commission's role as the “Guardian of the Treaty”, under Article 211(13) of the Treaty. The Member States are required to co-operate bona fide in an inquiry undertaken by the Commission under Article 226 of the Treaty, and to supply the Commission with all the information requested for that purpose(14). Refusal by a Member State to assist the Commission in its investigations constitutes a failure to fulfil a duty incumbent on every Member State under Article 10 to facilitate the fulfilment of the Commission’s tasks(15). In such a case the Commission may bring the matter before the Court of Justice.
    If the Commission nevertheless considered that difficulties in obtaining information from the Member States in the framework of its global approach made it impossible for it to conclude on individual infringement complaints, serious consideration should be given by it as to whether that global approach should not be re-assessed.


11. In light of these considerations, the Ombudsman considered that there was maladministration on the part of the Commission and made the draft recommendation referred to above.

The Commission's opinion

In its detailed opinion on the Ombudsman's draft recommendation, the Commission made, in summary, the following comments.

Subsequent to his complaint to the Ombudsman, submitted on 29 March 2004, the complainant wrote to the Commission again on 14 June 2004 on the subject of the organisation of the valuation procedure for vehicles in Denmark.

On 27 June 2004, the complainant wrote to the Commission again, essentially making a new complaint on the taxation of used vehicles in Denmark.

The Directorate-General concerned, Directorate-General for Taxation and Customs Union forwarded the letter of 14 June 2004 to the Directorate-General for Justice and Home Affairs for an opinion on the subject of the organisation of the vehicle valuation procedure in Denmark. It informed the complainant of this by letter of 30 June 2004. The Commission, in its letter of 13 July 2004, asked the complainant for information relating to the new complaint made in his letter of 27 June 2004.

By letter dated 26 July 2004, the complainant forwarded the information requested, adding a further complaint, again on the subject of the taxation of used vehicles in Denmark. The Commission replied to the above letters on 4 August 2004, informing the complainant that it considered the new complaint to be unfounded.

On 20 August 2004, following receipt of the DG Justice and Home Affair's comments on the complainant's letter of 14 June 2004, the Commission replied to that letter. The Commission informed the complainant that it considered his complaint unfounded.

The Commission unit responsible for these issues had already been forced to abandon its objective of undertaking a global assessment for all Member States with regard to the follow-up to the Gomes Valente judgment, owing to the huge difficulties encountered in obtaining replies from some of them. It had therefore carried out an overall evaluation of the compatibility of the Danish legislation on registration tax with Article 90 of the EC Treaty. Following this evaluation, it sent a letter dated 13 September 2004, containing observations and questions to the Danish authorities. A reminder was sent on 31 January 2005. The Danish authorities informed the Commission that a reply would probably be sent by the end of April 2005.

By letter of 7 October 2004, the Commission informed the complainant that an assessment had been carried out in light of the Gomes Valente judgment, and that the above-mentioned letter had been sent to the Danish authorities. It also informed him that it did not consider the Danish legislation to contain rules implying that the taxable value of a used car from another Member State would generally exceed the residual tax in the value of a similar vehicle already registered in Denmark, and that it had not found evidence that the Danish tax authorities systematically made incorrect assessments.

After having received the Ombudsman's draft recommendation in the present case, the Commission addressed an additional letter to the complainant on 12 April 2005 in which it suggested that the complainant had not understood that its letter of 7 October 2004 contained its view that the aspect of his complaint relating to the taxation of used vehicles was unfounded. In this letter of 12 April 2005, the Commission specifically stated that the complaint in this respect was unfounded, referring to previous letters and explanations. It pointed out that the letter to the Danish authorities concerned questions and complaints which had not been raised in the complainant's own complaints. It also informed him that the second aspect of his complaint (concerning leasing), to which the Commission had not yet replied, should be regarded as having been dealt with by the Commission's taking Denmark to the Court of Justice on that issue(16). The Commission undertook to inform the complainant about the Court's judgment in that case and of any follow-up by the Commission(17). The reason why the complainant had not been informed about the infringement proceedings earlier was that the action had been taken by a directorate-general other than DG Taxation and Customs Union. The Commission acknowledged that it was unfortunate that, following a major staff turnover, the officials dealing with the matter during the past years had not been informed of the existence of the infringement proceedings.

By letter dated 10 May 2005, the complainant requested a reassessment of the question as to whether the Danish authorities systematically value imported used cars incorrectly. The Commission accepted the complainant's request and re-examined all the documents submitted by the complainant. It replied by letter dated 15 June 2005, confirming its earlier conclusion and explaining in detail why it did not have any evidence to prove before the Court of Justice that the Danish authorities systematically made incorrect assessments in the valuation of imported used cars.

The complainant's observations

On 3 October 2005, the Ombudsman received the complainant's observations on the Commission's detailed opinion.

The complainant "disputed [the Commission's] claim of having made a thorough investigation into the matters at hand, and having evaluated the small mountain of evidence presented to them". He presented "3 of many cases to back up our allegation":

1. The valuation in Denmark is done subject to the car being restored and made ready for sale. [ Denmark] states this fact in its own publications. The Commission has several times stated that they are aware of this fact. The Rulings C-47/88 and C-393/98 of the European Court of Justice states [sic] that the valuation has to be done subject to the car entering the country by the border. It goes without saying that taxation of restoration does not apply to domestic vehicles.

2. [The complainant] in the period from 1999 - 2003 imported and sold over 500 used cars of VW Lupo 3L to [D]anes. Although every car was a used car from Germany - not one single car [was] assessed at a value below the price of a new car in Denmark of exactly the same configuration.

3. Contrary to what [Denmark] maintain[s] - that the valuation time is a few weeks - we have submitted ample evidence to the Commission that it normally runs to about 1 year, making a sale of the vehicle virtually impossible, since we don't know the total amount of tax before then. In its message 88/C 281/08 from 04/11-1998 the Commission states, that a "reasonable time-limit" for check, valuation and registration of a car is 3 weeks. The valuation alone frequently takes 6 months to 1 year or more - which is absolutely not acceptable, and a huge hindrance to our import".

The complainant added that "[w]e honestly do not believe that the Commission - knowing these facts - can maintain, that 'the registration tax on second hand vehicles from another Member State generally does not systematically exceed the residual tax in the value of a similar vehicle already registered in Denmark' ".

THE DECISION

1 Alleged failure to reach conclusion on infringement complaint

1.1 In 1998, the complainant, a Danish car dealer, complained to the Commission about alleged breaches of Community law by Denmark in respect of car taxation. The complainant's infringement complaint concerned the taxation of used imported cars and cross-border long-term leasing. The complainant had made two other complaints to the Ombudsman: case 801/2000/PB and case 1237/2002/(PB)OV. In case 801/2000/PB, the Commission stated that it was waiting for the outcome of two cases before the Court of Justice and that it could therefore not provide the complainant with its final legal view on his complaint against Denmark. The Ombudsman accepted this explanation, noting that the Commission had undertaken to reach a decision on his infringement complaint by October 2001. The Commission did not, however, fulfil this undertaking. In case 1237/2002/(PB)OV, the Commission explained its failure to respect its undertaking by stating that it preferred to take a global approach to the problems related to car taxation and that its aim was to solve these problems simultaneously in all the Member States, namely, through co-operation and by issuing a Communication written in clear and simple language. The Commission further indicated that the matter at stake belonged to a field of law that was not yet harmonised. The Ombudsman found that these were reasonable grounds for why the Commission had not reached a decision by October 2001 and he therefore closed his inquiry into that complaint on 19 May 2003. The Ombudsman pointed out, however, that "the complainant has the possibility of making a new complaint to the Ombudsman in the future if there is further delay by the Commission in reaching a decision on the infringement complaint" (point 1.7).

1.2 In the present complaint to the Ombudsman, submitted on 29 March 2004, the complainant stated that he had received a letter from the Commission, dated 20 October 2003, apparently inviting him to submit further information regarding the alleged breaches of Community law. According to the complainant, he responded to that invitation by letter dated 2 February 2004, providing the Commission with examples of the alleged breaches by the Danish authorities and informing it about the tax payments demanded by those authorities. According to the complainant, the Commission replied that it would take no action before the final judgment in a case before the Court of Justice. In his complaint to the Ombudsman, the complainant alleged that the Commission had failed to honour its commitment to reach a conclusion on his infringement complaints concerning Denmark's taxation of imported cars.

1.3 With regard to the taxation of imported used cars, the Commission stated in its opinion of 5 August 2004 that, following the judgment in the Gomes Valente case(18), it had sent a letter to all Member States on 1 June 2001 informing them of the consequences of the judgment. However, certain Member States had still not replied, despite the fact that the Commission had sent them numerous reminders. As a consequence, this particular matter had not yet been examined in full. The Commission stated that, from an operational point of view, this matter needed to be handled as part of a global approach in co-ordination with the Member States. The Commission did, however, note that Denmark had replied to its letter of 1 June 2001 and that the Danish authorities considered Danish legislation to be consistent with the judgment in the Gomes Valente case. Following further correspondence with the complainant, the Commission informed the complainant in February 2004 that, as regards the taxation of vehicles, the Commission had decided to wait for the judgment of the Court of Justice in the Weigel case(19). The judgment in that case was handed down on 29 April 2004 and was being examined by the relevant departments in the Commission.

1.4 With regard to taxation in respect of cross-border leasing of cars, the Commission referred in its opinion to its letter of 20 October 2003 to the complainant, in which it informed him that the area relating to leasing of cross-border vehicles "is very complex and is not harmonised at present. The Commission has chosen to adopt a global approach which takes account of the situations in the various Member States. [...] The Commission therefore plans to wait until it receives the replies from the Member States to the letter which has just been sent out concerning the compatibility of their legislation with the judgement in the Cura Anlagen case before deciding whether to launch infringement proceedings". The Commission stated in its opinion that it had still not received replies from all the Member States, despite sending out reminders. It nevertheless pointed out that it still preferred to take a global approach and, by doing so, was legitimately using its discretion. When all the replies had been examined, the Commission would take account of all the information it had received, including that supplied by the complainant. Once the Commission had decided whether to launch infringement proceedings against Denmark, it would inform the complainant of its decision.

1.5 In his observations, the complainant maintained his complaint.

1.6 On 18 March 2005, the Ombudsman made a draft recommendation in which he recommended that the Commission adopt a decision on the complainant's infringement complaint against Denmark as quickly as possible and communicate its decision to the complainant.

1.7 In its detailed opinion on the Ombudsman's draft recommendation, the Commission noted that, owing to the huge difficulties encountered in obtaining replies from some of them, it had been forced to abandon its objective of undertaking a global assessment for all Member States with regard to the follow-up to the Gomes Valente judgment. It had therefore carried out an overall evaluation of the compatibility of the Danish legislation on registration tax with Article 90 of the EC Treaty. Following this evaluation, it sent the Danish authorities a letter dated 13 September 2004 and containing observations and questions. A reminder was sent on 31 January 2005. The Danish authorities informed the Commission that a reply would probably be sent by the end of April 2005. By letter of 7 October 2004, the Commission informed the complainant that an assessment had been carried out in light of the Gomes Valente judgment and that the above-mentioned letter had been sent to the Danish authorities. It also informed him that it did not consider the Danish legislation to contain rules implying that the taxable value of a used car from another Member State would generally exceed the residual tax in the value of a similar vehicle already registered in Denmark, and that it had not found evidence that the Danish tax authorities systematically made incorrect assessments of used cars. After having received the Ombudsman's draft recommendation in the present case, the Commission addressed an additional letter to the complainant on 12 April 2005. In this letter, the Commission specifically stated that the complaint in respect of imported used cars was unfounded, referring to previous letters and explanations. It also informed him that the other aspect of his complaint (taxation relating to leasing), to which the Commission had not yet replied, should be regarded as having been dealt with by the Commission having taken Denmark to the Court of Justice on that issue(20). The Commission undertook to inform the complainant about the Court's judgment in that case and of any follow-up by the Commission. The reason why the complainant had not been informed about the infringement proceedings earlier was that the action had been taken by a directorate-general other than DG Taxation and Customs Union. The Commission acknowledged that it was unfortunate that, following a major staff turnover, the officials dealing with the matter during the past years had not been informed of the existence of the infringement proceedings. By letter dated 10 May 2005, the complainant requested a reassessment of the question as to whether the Danish authorities systematically made an incorrect valuation of imported used cars. The Commission accepted the complainant's request and re-examined all the documents submitted by the complainant. It replied by letter dated 15 June 2005, confirming its earlier conclusion and explaining in detail why it did not have any evidence to prove before the Court of Justice that the Danish authorities systematically engage in incorrect valuation of imported used cars.

1.8 It appears from the Commission's detailed opinion on the Ombudsman's draft recommendation that it has adopted decisions on the issue of taxation relating to the leasing of cars as well as the issue of the importation of used cars and that it has informed the complainant of its decisions. The Ombudsman therefore concludes that the Commission has accepted the draft recommendation.

1.9 In his observations on the Commission's detailed opinion on the draft recommendation, the complainant made the following three points:

1. "The valuation in Denmark is done subject to the car being restored and made ready for sale. [ Denmark] states this fact in its own publications. The Commission has several times stated that they are aware of this fact. The Rulings C-47/88 and C-393/98 of the European Court of Justice states [sic] that the valuation has to be done subject to the car entering the country by the border. It goes without saying that taxation of restoration does not apply to domestic vehicles.
2. [The complainant] in the period from 1999 - 2003 imported and sold over 500 used cars of VW Lupo 3L to [D]anes. Although every car was a used car from Germany - not one single car [was] assessed at a value below the price of a new car in Denmark of exactly the same configuration.
3. Contrary to what [Denmark] maintain[s] - that the valuation time is a few weeks - we have submitted ample evidence to the Commission that it normally runs to about 1 year, making a sale of the vehicle virtually impossible, since we don't know the total amount of tax before then. In its message 88/C 281/08 from 04/11-1998 the Commission states, that a "reasonable time-limit" for check, valuation and registration of a car is 3 weeks. The valuation alone frequently takes 6 months to 1 year or more - which is absolutely not acceptable, and a huge hindrance to our import".

The complainant concluded by stated that "[w]e honestly do not believe that the Commission - knowing these facts - can maintain, that 'the registration tax on second hand vehicles from another Member State generally does not systematically exceed the residual tax in the value of a similar vehicle already registered in Denmark' ".

1.10 The Ombudsman points out that the allegation taken up for inquiry in the present inquiry was that the Commission had failed to honour its commitment to reach a conclusion on the complainant's infringement complaint concerning Denmark's taxation of imported cars. It was this allegation that was referred to in the Ombudsman's letter in which the complainant was informed about the opening of the inquiry. The allegation has been dealt with through the draft recommendation and the Commission's acceptance of that recommendation (cf. above). The three points made by the complainant in his last observations, quoted above, concern the substance of the Commission's conclusion on one aspect of his infringement complaint. They do not fall within the scope of the present inquiry, as described above. In light of the advanced state of the present inquiry, the Ombudsman does not consider it appropriate to inquire into the three above points made by the complainant. The complainant might consider, however, submitting a new complaint to the Ombudsman in this regard, after having invited the Commission to specifically address these points(21).

2 Conclusion

In view of the above, the Ombudsman takes the view that the Commission has accepted his draft recommendation and that the measures taken to implement it are satisfactory.

The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case C-451/99 Cura Anlagen [2002] ECR I-3193.

(2) Case C-393/98 Gomes Valente [2001] ECR I-1327.

(3) Case C-101/00 Tulliasiamies and Siilin [2001] ECR I-7487.

(4) OJ 2002 C 244, p. 5.

(5) OJ 2002 C 244, p. 5.

(6) OJ 2000 L 308, p. 26, Annex at p. 32.

(7) Case C-451/99 Cura Anlagen [2002] ECR I-3193.

(8) Case C-387/01 Weigel [2004] ECR I-4981.

(9) Case C-393/98 Gomes Valente [2001] ECR I-1327.

(10) Case C-387/01 Weigel [2004] ECR I-4981.

(11) OJ 2002 C 244, p. 5.

(12) In its opinion on the draft recommendation, the Commission noted that the correct date was 2003 (September), and not 2002 as stated in the draft recommendation.

(13) "[...] the Commission shall: - ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied".

(14) Case C-192/84 Commission v Greece [1985] ECR 3967, paragraph 19.

(15) Case C-240/86 Commission v Greece [1988] ECR 1835, paragraph 28.

(16) C-464/02 Commission v Denmark, judgment of 15 September 2005, not yet reported.

(17) In C-464/02 Commission v Denmark, cited above,, succeeding the Commission's opinion, the Court found against Denmark, concluding the following:

"in so far as

– its legislation and administrative practice do not allow workers resident in Denmark and employed in another Member State in work which is not their principal employment to use for business or private purposes a company vehicle registered in that other Member State where the undertaking of their employer is established, and

– its legislation and administrative practice allow employees resident in Denmark and employed in another Member State to use for business purposes or business and private purposes a company vehicle registered in that other Member State in which their employer has its registered office or principal establishment, the vehicle neither being intended to be essentially used in Denmark on a permanent basis nor being actually so used, only subject to the condition that the employment with that employer is their main employment and that a tax is paid for that purpose,

the Kingdom of Denmark has failed to fulfil its obligations under Article 39 EC".

(18) Case C-393/98 Gomes Valente [2001] ECR I-1327.

(19) Case C-387/01 Weigel [2004] ECR I-4981.

(20) C-464/02 Commission v Denmark, judgment of 15 September 2005, not yet reported; see note 17 above).

(21) Article 2(4) of the Ombudsman's Statue provides that "[a] complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."