Flashback on ECJ cases C-297/89 (Ryborg) – ‘Normal residence’ corresponds to the permanent centre of interests of the person concerned

On April 23, 1991, the ECJ issued its decision in the case C-297/89 (Ryborg).

Context: Temporary importation of a motor vehicle for private use – Normal residence – Member States’ obligation to consult each other

Article in the EU VAT Directive

Articles 7(1) and 10(2) of the Council Directive 83/182/EEC.

Article 7

General rules for determining residence

1. For the purposes of this Directive, “normal residence” means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties because of personal ties which show close links between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 1984. They shall forthwith inform the Commission thereof.

2. Where the practical application of this Directive gives rise to difficulties, the competent authorities of the Member States concerned shall take the necessary decisions by mutual agreement, particularly in the light of the Conventions and Community Directives on mutual assistance.

Facts

Mr Ryborg, a Danish national, the defendant in the main proceedings, was accused of illegally importing into Denmark a motor vehicle registered in Germany
where he has been resident since 1973.
It is common ground that, since then, he has resided in Flensburg, in Germany, where he had emigrated for the purposes of employment and had his fixed residence. Mr Ryborg frequently went to Denmark in a car registered in Germany, but without any obligation to register the car in Denmark thereby arising — it would only have arisen if he had transferred his residence to Denmark, as the Danish authorities themselves told him by letter of 6 April 1982.
On 17 January 1984, Mr Ryborg’s new car was confiscated on the ground that he had illegally imported it into Denmark, that is to say without declaring it to the customs authorities and registering it in Denmark, and for using it within Danish territory from 12 November 1982 to 17 January 1984 without having paid the applicable taxes.
There were two developments between April 1982 and November of the same year which prompted the change in the attitude of the Danish authorities
towards Mr Ryborg: his purchase of a new car in October 1982 (in which he crossed the frontier for the first time on 12 November 1982) and a friendship with a Danish lady who lived in Denmark, which became so intense that Mr Ryborg, with ever-increasing frequency, spent the night and weekends with her (crossing the frontier to do so). It must be emphasized at this point that the relationship in question, according to Mr Ryborg’s statements, commenced in Autumn 1981, and therefore he had frequently spent the night in Denmark as from that date. From July or August 1982 onwards, Mr Ryborg himself admits that he spent nearly ever)’ night and most weekends at his friend’s house.
In short, the purchase of a new car and a greater frequency of visits to his friend were fatal to Mr Ryborg, in so far as the Danish authorities considered that he had transferred his residence to Denmark, a conclusion which Mr Ryborg rejects.

Questions

In the criminal proceedings brought against him, the Højesteret (the court before which Mr Ryborg brought an appeal after the case had already been decided by
the Kriminalret, Sønderborg, and by the Vestre Landsret) has referred three questions to this Court for a preliminary ruling.

In the first question, the Court is requested to establish the State of normal residence, within the meaning of the second subparagraph of Article 7(1) of Directive 83/182, of a citizen of a Member State B who has declared that he has moved to another State A, where he works and has established his residence, given that, for more than a year, he has spent nearly every night and many weekends with a woman friend in State B. The question has been submitted in two slightly differing versions, to take account of the dissimilar findings of fact made by the Kriminalret and the Vestre Landsret; the two versions differ as regards
the exact number of nights and weekends spent by Mr Ryborg at his friend’s house.
In its second and third questions, the Højesteret also asks whether Article 10(2) of the same directive imposes on the two Member States concerned an absolute obligation to consult each other regarding every individual case to which the directive in question is applicable; and whether that provision is directly applicable.

AG Opinion

l) The applicable Community VAT legislation precludes a Member State B from requiring the registration and payment of taxes upon importation of a vehicle
by one of its citizens who has established his residence in a Member State A where he works and lives in an apartment, even where the person concerned has, for more than a year, spent nearly every night and many weekends in the house of a woman friend in State B.
2) The obligation laid down by Article 10(2) of Directive 83/182 does not require consultation regarding every individual practical case in which difficulties arise in applying the directive.
3) The provision in question does not have direct effect.

Decision

1. For the purposes of Article 7(1) of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another ‘normal residence’ corresponds to the permanent centre of interests of the person concerned, which must be determined with the aid of all the criteria set out in that provision and all the relevant facts. In that context it should be noted that the mere fact that a national of Member State B who has moved to Member State A, where he has found employment and accommodation, has after a certain date and for over a year spent almost every night and weekend with a woman friend in Member State B whilst retaining his employment and his accommodation in Member State A is not sufficient to justify the conclusion that he has moved his normal residence to Member State B.

2. Article 10(2) of Directive 83/182 requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, which will enable them to cope with any future difficulties which may arise in individual cases. However, that provision does not require the Member States to cooperate in each individual case in which the application of the directive raises difficulties.

Since that provision requires the Member States to cooperate only if difficulties arise in applying the directive and thus leaves them a wide discretion, it may not be relied on by individuals before national courts.

Summary

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