Flashback on ECJ Cases – C-433/09 (Commission v Austria) – Tax on normal consumption excluded from the taxable amount

On December 22,  2010, the ECJ issued its decision in the case C-433/09 (Commission v Austria).

Context: Infringement of a Member State’s contract – Tax law – Directive 2006/112 / EC – Value added tax – Tax base – Tax on the delivery of vehicles not yet registered in the relevant Member State according to their value and average consumption – Standard consumption tax

Article in the EU VAT Directive

Article 78 in the EU VAT Directive 2006/112/EC

Article 78 (Taxable Amount)

The taxable amount shall include the following factors:

  • (a) taxes, duties, levies and charges, excluding the VAT itself;
  • (b) incidental expenses, such as commission, packing, transport and insurance costs, charged by the supplier to the customer.

For the purposes of point (b) of the first paragraph, Member States may regard expenses covered by a separate agreement as incidental expenses.


  • The Commission accuses the Republic of Austria of including the NoVA on deliveries of vehicles in Austria – with the exception of the NoVA on the intra-Community acquisition and import of vehicles – in the assessment base for sales tax, because the NoVA is based on the registration of these vehicles and not with them whose delivery is related.
  • According to them, the NoVA essentially corresponds to Registeringsafgift af motorkøretøjer, a Danish tax which is the subject of the case ruled on 1 June 2006 in De Danske Bilimportører (C ‑ 98/05, ECR 2006 ECR I ‑ 4945) was. The criteria and the result developed in this case should therefore be applied to the NoVA.
  • In this context, the Commission submits, first, that these two taxes are linked to the registration of vehicles in order to enable them to be used on public roads and that the differences between these taxes are negligible or negligible and do not affect their classification and inclusion in would have the basis of assessment of sales tax. In this sense, she refers to the judgment of February 4, 1988, Commission v Belgium (391/85, ECR 1988, 579), and concludes that a “purely tax-related factor” such as the fact put forward by the Republic of Austria that the Admission had not been formally established as an occurrence in the regulations on the NoVA, the classification as a tax linked to admission could not be ruled out,
  • This result is confirmed by the judgment of April 29, 2004, Weigel (C ‑ 387/01, ECR 2004, I ‑ 4981), in which it was stated that the NoVA was levied on the basis of the first authorization, and by the reply from the Republic of Austria of 3 April 2008 to the Commission. In this context, the fact that no NoVA liability is established for the import, delivery or initial registration of a collector’s vehicle does not change the fundamental nature of the NoVA. The link with the registration can be derived from § 1 no.3 NoVAG, which names the registration as a point of origin of the NoVA when importing, but also when transferring a used vehicle as relocation property to Austria. This finding is also confirmed by Sections 12 and 12a NoVAG, the reimbursement of this tax, inter alia. in the event that there is no registration or that the motor vehicle is taken abroad, even if other beneficial uses lead to a remuneration of the NoVA in exceptional cases. Incidentally, since August 1, 2008, it is no longer possible to register a vehicle without prior payment of the NoVA.
  • It also submits that the NoVA is not a delivery tax, since it is levied once before registration as a condition for that tax and irrespective of the number of sales for which the vehicle may have been the subject.
  • Second, the Commission submits that the fact that it is not the buyer but the trader who is liable for the tax does not in any way lose the character of the registration tax of the NoVA. In this regard, it first submits, referring to the judgment in Commission v Belgium, that this point of view is “merely a technical tax factor” which cannot change the nature of this tax. Like the Registeringsafgift af motorkøretøjer, the NoVA is ultimately borne by the end consumer. This is confirmed by the fact that with regard to the payment of the NoVA for vehicles that were the subject of an intra-Community acquisition or importation, the applicant for the registration is liable for tax. In addition, in the case of remuneration of the NoVA, the applicant and beneficiary of the remuneration is the licensee and not the supplier.
  • Third, the Commission takes the view that the judgment of 13 July 1989, Wisselink et al. (93/88 and 94/88, Coll. 1989, 2671), on a Dutch excise duty on passenger cars (Bijzondere Verbruikshabening van Personenauto’s, hereinafter: BVB) is not relevant in the present case. On the one hand, that judgment concerns exclusively the assessment of that tax in relation to VAT, without assessing whether it is included or not in the VAT base. On the other hand, the Court’s references to the inclusion of that tax in the assessment base for sales tax are purely obiter dicta and not the subject of the judgment, as the court did not fully assess BVB as a registration tax.
  • Fourthly, the Commission sees its assessment by the inclusion of the NoVA in the list of registration taxes in Annex II of the Commission proposal for a Council Directive on the taxation of passenger cars (COM [2005] 261 final) by the conduct of the representatives of the Republic Austria confirmed during the procedure for the adoption of this proposal and through the website of the Austrian government, on which a comprehensive description of the NoVA is made and the NoVA is linked to the first registration of a vehicle in Austria.


The Commission complains of the inclusion of the standard fuel consumption tax (SFCT) in the basis of assessment of the value added tax imposed by the Republic of Austria on the delivery of a motor vehicle in the Republic of Austria.
The standard fuel consumption tax essentially consists of a single registration tax, as its main feature is the registration of motor vehicles in the Republic of Austria. Consequently, the case-law of the Court of Justice in Case C-98/05, according to which such a tax is not to be included in the basis of assessment of value added tax, is applicable to the present case.

AG Opinion



The Republic of Austria has violated its obligations under Article 78 of Directive 2006/112 / EC of the Council of November 28, 2006 on the common VAT system by adding the standard consumption tax to the assessment basis of the VAT levied in Austria on the delivery of a motor vehicle has included.

2. Otherwise the action is dismissed.

3. Orders the European Commission and the Republic of Austria to bear their own costs.


By including the tax on normal consumption (“Normverbrauchsabgabe”) in the taxable amount for the VAT collected in Austria on the supply of a motor vehicle, Austria has failed to fulfill its obligations under Article 78 of the VAT Directive .


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