N lived and was a citizen of Belgium but worked in Luxembourg (crossing border each day). He used a car that was registered in Luxembourg and belonged to the company of which he was MD. He was charged by the customs authorities with ‘using, in the course of carrying on his occupation, a vehicle registered abroad in the name of a foreign owner to which he was linked by a contract of employment without carrying a VAT certificate in the vehicle.’ N argued that this infringed his article 39 freedom of movement. ECJ held that since N was, as an MD, ‘self employed’, so that it was article 43 (freedom of establishment), rather than article 39, that applied to him. It said that the legislation in issue (that created the offence with which N was charged) did infringe N’s article 43 rights where the vehicle was not intended, and was not, used in the MS of origin on a permanent basis.
ECJ: The free movement treaty articles “are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State”. While a MS is able to take measures to prevent an abuse under which a person uses the free movement articles to circumvent national legislation (here tax avoidance). However here there is no abuse, since there was no intention to use it permanently in Belgium.