Deputy-Ombudsman Maija Sakslin criticises the procedure of the Finnish Transport Safety Agency (Trafi), by which it demanded that a person living abroad transfer the possession of their vehicle to another person for the purpose of sending a vehicle tax demand note. Since Trafi had not sent a vehicle tax demand note to the claimant’s address in Portugal, the claimant had failed to pay the vehicle taxes. As a result of this, a prohibition of use had been imposed on the claimant’s vehicles.
The agency based its procedure on the provision of the Decree on the Vehicle Registration, which states that if the owner of a vehicle which is used in Finland lives abroad, a possessor who lives in Finland shall be reported for the vehicle. According to Trafi, it has sought to instruct vehicle owners residing abroad to make an e-invoicing agreement, because the sending of a vehicle tax demand note as an e-invoice is not tied to the address registered in the road-traffic register. In this case, failure to make a registration notification does not prevent the sending of a vehicle tax demand note.
Deputy-Ombudsman Sakslin considers the legal situation to be unsatisfactory. The free movement of persons is safeguarded by Article 21 of the Treaty on the Functioning of the European Union (TFEU). According to decisions by the Supreme Administrative Court of Finland, the right to free movement of persons may be understood to mean that Finnish law cannot place a person residing in Finland in a more favourable position than a person residing in another Member State. In this case, no justification was given for the different treatment of a vehicle owner residing abroad, within the European Union in this instance, and an owner residing in Finland.
The claim appeared even more unjustified when it could have been avoided in a manner explained by Trafi, i.e. by making an e-invoicing agreement, in which case the sending of a vehicle tax demand note is not tied to the address indicated in the register. No clarification was given in the case as to how Trafi had fulfilled its advice and guidance obligations, neither could the instructions or guidance to which Trafi referred be found on its website.
For these reasons, the Deputy-Ombudsman decided to investigate the matter on her own initiative.
The Ministry of Transport and Communications concurred with the Deputy-Ombudsman in that the provision of the Decree on the Vehicle Registration required vehicle owners residing abroad to make administrative arrangements that were not required of vehicle owners residing in Finland. Taking into account the requirement of non-discrimination, a vehicle owner residing abroad should not be required to transfer the possession of the vehicle to another person as a condition for sending a vehicle tax demand note. Such a requirement may prevent the effective exercise of the free movement of persons. The Ministry announced that it will take measures to repeal the said provision of the Decree.
Furthermore, according to the Ministry, Trafi was under a particular obligation to provide the claimant with services and advice due to the consequences of the failure to pay taxes. Trafi would have fulfilled its advisory obligation by sending the vehicle owner a reminder of the obligation to register a possessor for the vehicle. The Ministry of Transport and Communications expects Trafi to develop its advisory services in order to actively provide guidance and advice to taxpayers residing abroad. For example, on its website Trafi could provide general instructions on measures to be taken when moving abroad.
The Deputy-Ombudsman found the corrective measures taken by the Ministry of Transport and Communications to be appropriate. She requested the Ministry to report on the progress of said measures by 31 December 2018.
The full text (in Finnish) of Deputy-Ombudsman Maija Sakslin’s decision (EOAK 1219/2018) is available on the Ombudsman's website, www.oikeusasiamies.fi/.
For more information, please contact Principal Legal Adviser Ulla-Maija Lindström, tel. +358 9 432 3355.