OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 21 September 2006 ( )

Case C-313/05

Maciej Brzeziński

v

Dyrektor Izby Celnej w Warszawie





1. In this reference for a preliminary ruling, the Wojewódzki Sąd Administracyny w Warszawie (Warsaw Regional Administrative Court) asks essentially whether it is compatible with Articles 25, 28 and 90 EC, and Article 3(3) of Council Directive 92/12/EEC, ( ) for a Member State to impose on passenger cars an excise duty

– which is charged on the purchase of any car, irrespective of its place of origin, prior to initial registration in the Member State,

– which is charged, at a rate determined by age and engine capacity, on second-hand cars from other Member States but not on those already registered in the Member State in question, on which it has already been charged prior to initial registration and whose subsequent resale price it thus affects,

– for the purpose of which persons acquiring cars from another Member State are required to submit a simplified declaration to customs within five days of the acquisition.

If there should be any incompatibility with those provisions, the referring court asks the Court of Justice to decide whether there should be any limitation of the temporal effect of its ruling.





Relevant Community law

Treaty provisions and legislation

2. Article 23 EC ( ) provides:

‘1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.

2. The provisions of Article 25 … shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.’

3. Article 25 EC provides:

‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.’

4. Article 28 EC provides:

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’

5. Article 90 EC provides:

‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

6. Article 3(1) of Directive 92/12 provides for the directive to apply at Community level to mineral oils, alcohol, alcoholic beverages and manufactured tobacco. In so far as is relevant to other products, Article 3(3) provides:

‘Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.

…’





Case-law

7. The Treaty provisions cited have been examined by the Court on a number of occasions, in particular with reference to national taxes imposed on motor vehicles imported from other Member States.

8. First of all, the Court has held that the prohibition of quantitative restrictions in Article 28 EC does not extend to obstacles to trade covered by other specific Treaty provisions, such as obstacles having an effect equivalent to customs duties or obstacles of a fiscal nature, which are covered by Articles 25 and 90 EC respectively. ( ) Nor can the provisions of the latter two articles be applied together: a charge cannot belong to both categories at the same time. ( )

9. In that regard, a fiscal charge on the registration of motor vehicles, which is levied not by reason of a vehicle crossing the frontier of a Member State but upon first registration of the vehicle in the territory of that State, must be regarded as part of a general system of internal dues on goods and thus examined in the light of Article 90 EC. ( )

10. As regards the taxation of second-hand vehicles in the light of Article 90 EC, I have summarised the most relevant decisions of the Court ( ) in points 4 to 22 of my recent Opinion in Nádasdi, ( ) to which I refer.

11. It may be distilled from that case-law that, in order to be compatible with the first paragraph of Article 90 EC, a national tax levied once only on each vehicle, on its first registration in a Member State, must, in so far as it affects second-hand vehicles, be calculated in such a way as to avoid any discrimination against such vehicles from other Member States. Such a tax must therefore not impose on imported second-hand vehicles a burden which exceeds the burden of residual tax included in the cost of an equivalent vehicle first registered in the same Member State at an earlier stage in its existence.

12. In those judgments, the Court also specified, inter alia, that the detailed rules for levying the tax must be taken into account in assessing compatibility with Article 90 EC; that the pursuit of an environmental objective does not absolve a Member State from the need to avoid discrimination; that depreciation in value need not be assessed individually in every case but may be based on scales or tables using relevant criteria to provide a good approximation of depreciated value; and that it must be possible for an owner to challenge the application of such scales or tables in cases where they do not take account of the true characteristics of an individual vehicle.

13. It is self-evident that the taxation of new vehicles can fall within the first paragraph of Article 90 EC only where there is domestic production. (And for the purposes of the present case, it may be noted that such production exists in Poland.) If taxation does not discriminate overtly against vehicles imported from other Member States, which would clearly be contrary to that provision, the question may none the less arise whether it is structured so as to have an indirectly discriminatory or protective effect.

14. In that regard, the Court has held that a system of taxation cannot be regarded as discriminatory solely because only imported products, in particular those from other Member States, come within the most heavily taxed category, provided that the rate differential does not have the effect of favouring the sale of vehicles of domestic manufacture over that of vehicles imported from other Member States. ( )

15. The second paragraph of Article 90 EC prohibits internal taxation of such a nature as to afford ‘indirect fiscal protection affecting imported products which, although not similar, within the meaning of the first paragraph of Article [90 EC], to domestic products, are nevertheless in a competitive relationship with some of them, even if only partially, indirectly or potentially’. ( ) Vehicles are ‘similar’ if their characteristics and the needs which they serve place them in such a relationship. The degree of competition between two models depends on the extent to which they meet the same requirements of price, size, comfort, performance, fuel consumption, durability, reliability and so forth. ( ) There appear however to be no cases in which it has been held, or indeed alleged, that taxation of imported motor vehicles affords indirect protection to products other than motor vehicles.





Relevant national law

16. According to the order for reference, Article 80 of the Polish Law on Excise Duty ( ) imposes excise duty on passenger cars not registered in Poland in accordance with road traffic provisions. Persons selling such a car prior to its initial registration in Poland, together with importers and persons effecting the ‘intra-Community acquisition’ of such a car, are liable to pay the duty. The term ‘intra-Community acquisition’ refers to the purchase of a car in another Member State and its introduction into Poland, and is deemed to take place, according to Article 2 of the Law as reported by the Polish Government and the Commission in their observations, on the date of the car’s actual introduction into Poland rather than the date of purchase. It appeared further at the hearing that a Polish manufacturer of passenger cars would be liable to pay the duty if he were to register a car in his own name before selling it, in which case no subsequent duty would in practice be due.

17. Under Article 81 of the same Law, persons effecting an intra-Community acquisition must submit a simplified declaration to the appropriate customs office within five days of the date of the acquisition, and must pay excise duty no later than the date of registration of the car in Poland.

18. Under Article 75 of the Law on Excise Duty, the amount of duty is, unless otherwise specified, 65% of the tax base, which is essentially, under Article 10, the price due or paid. However, that percentage may be varied by ministerial order.

19. Such an order was adopted in 2004. ( ) In accordance with Article 7 of that order, read in conjunction with Annexes 1 and 2 thereto, the percentage of duty on passenger cars is 13.6% of the tax base for an engine capacity greater than 2 000 cc or 3.1% of the tax base in other cases.

20. On the sale, importation or intra-Community acquisition of a passenger car more than two calendar years from the year of its manufacture (which is counted as the first calendar year), that percentage is increased by a figure expressed as (12 x (W-2))%, where W is the age of the car in years from the year of manufacture to the year of the taxable event inclusive. However, the total percentage can never rise above the 65% specified in Article 75 of the Law on Excise Duty.

21. On that basis, I understand the amount of excise duty on all passenger cars, whether imported or manufactured in Poland, to be 13.6% or 3.1% of the new or resale price, depending on engine capacity, during the year of manufacture or the following year.

22. After that, the percentage will increase by 12% each year. Thus, in the fifth year, it will be 36% – that is to say 12 times (5 minus 2 = 3) – plus either 3.1% or 13.6% depending on engine capacity, making a total of 39.1% or 49.6% of the resale price at that time. In the sixth year, by a similar calculation, it will amount to 51.1% or 61.6% of the relevant price, and the maximum of 65% will be attained in the seventh or eighth year, as the case may be.

23. Again, I understand that as applying equally to all cars, whether imported or manufactured in Poland. However, it seems reasonable to assume that in practice all those in the latter category (excluding any not sold on the domestic market but exported, which will not attract Polish excise duty in any event) will have been registered before the end of the year following their manufacture – either because, as is most likely, they will have been sold by then or because, exceptionally, the manufacturer will have registered them in his own name in order to avoid the extra duty.





The main proceedings and the order for reference

24. In June 2004 Mr Brzeziński, the claimant in the main proceedings, declared the intra-Community acquisition of a Volkswagen Golf II passenger car manufactured in 1989 and, in order to register the vehicle in Poland, paid the relevant excise duty of PLN 855.00. ( )

25. He then however requested reimbursement of that excise duty. He considered that the obligation to pay it infringed Articles 23, 25 and 90 EC. The customs authority refused to reimburse the duty on the grounds that ‘… taxation policy is a symbol of national sovereignty and part of the country’s economic policy’. Mr Brzeziński objected to that refusal, but his objection was dismissed, essentially on the ground that the relevant Polish provisions were binding and complied with the relevant basic Community provision, namely Article 3(3) of Directive 92/12.

26. Mr Brzeziński now seeks a judicial remedy setting aside the customs authority’s decision and ordering reimbursement of the duty paid.

27. The national court is in some doubt as to the correct application of various provisions of Community law to such circumstances and therefore seeks a preliminary ruling on the following questions:

‘(1) Does Article 25 [EC], which prohibits customs duties on imports and exports and charges having equivalent effect between Member States, prohibit a Member State from applying Article 80 of the [Polish Law on Excise Duty] where excise duty is charged on the acquisition of any car, irrespective of its place of origin prior to its initial registration in Poland?

(2) Does the first paragraph of Article 90 [EC], under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, allow a Member State to impose excise duty on second-hand cars imported from other Member States without charging such duty on the sale of second-hand cars already registered in Poland, where the excise duty has been imposed, under Article 80 of the Polish Law on Excise Duty, on all cars not registered in Poland?

(3) Does the second paragraph of Article 90 [EC], under which no Member State may impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products, allow a Member State to impose on second-hand cars imported from other Member States excise duty at a variable rate depending on the vehicle’s age and engine capacity, which is laid down in the [2004 Order], where the duty on the sale of second-hand cars in Poland is calculated according to a similar formula before their initial registration in Poland and this duty subsequently affects the price of that car when it is resold?

(4) Does Article 28 [EC], under which quantitative restrictions on imports and all measures having equivalent effect are to be prohibited between Member States – and also having regard to Article 3(3) of [Directive 92/12] – prohibit a Member State from maintaining in force Article 81 of the Polish Law on Excise Duty, under which persons effecting intra-Community acquisition of passenger cars not registered in Poland in accordance with the provisions relating to road traffic are required, after importing them into Poland, to submit a simplified declaration to the head of the relevant customs office within five days of the intra-Community acquisition?’

28. The referring court further requests the Court to determine the temporal effects of any ruling which could affect the State budget.

29. Written observations have been submitted by the Polish Government and the Commission, both of whom, together with Mr Brzeziński, were represented at the hearing.





Assessment

Preliminary remark

30. Apart from Article 3(3) of Directive 92/12, the questions referred by the national court concern three Treaty provisions: Articles 25, 28 and 90 EC.

31. However, as I have noted above, ( ) the Court’s case-law makes it clear that a national measure alleged to restrict intra-Community trade cannot be assessed simultaneously in the light of more than one of those three provisions. Article 28 EC applies if it is a non-fiscal measure, Article 25 EC if it is a customs or other fiscal measure connected with the crossing of an intra-Community frontier, and Article 90 EC if it is an internal fiscal measure.

32. The mutually exclusive scope of each of those Treaty provisions must therefore be borne in mind when considering the questions referred.





Question 1

33. The national court’s first question is essentially whether an excise duty charged on the acquisition of all vehicles, irrespective of their place of origin, prior to initial registration in the Member State in question, constitutes a customs duty on imports or a charge having equivalent effect for the purposes of Article 25 EC, which prohibits such duties or charges in trade between Member States.

34. The designation of the duty in question is not ‘customs duty’ but ‘excise duty’.

35. It is clear from the Court’s case-law ( ) that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a border, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Article 25 EC. However, a charge which forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products falls within the scope of Article 90 EC.

36. The excise duty described in the order for reference is not imposed on goods by reason of the fact that they cross a border, since it is also charged on the same goods of domestic manufacture. It is thus an internal levy which applies systematically to categories of products according to objective criteria applied without regard to the origin of the products.

37. Consequently, such a duty does not fall within the scope of Article 25 EC. Whether, as an internal levy, it is compatible with Article 90 EC is the subject of the second and third questions.





Question 2

38. The second question is essentially whether an excise duty charged on the acquisition of second-hand cars from other Member States but not on the acquisition of such cars already registered in the Member State in question (on which it has already been imposed prior to their initial registration) constitutes internal taxation on the products of other Member States in excess of that imposed directly or indirectly on similar domestic products, within the meaning of the first paragraph of Article 90 EC.

39. That question must be examined in the light of the detailed rules for levying the specific tax in issue. ( ) I have set out those rules in points 16 to 21 above.

40. It must also be examined in the light of the Court’s case-law – to which I have referred in points 10 to 14 above – on the assessment in the light of the first paragraph of Article 90 EC of single-stage national taxes applied to both new and used vehicles, whether produced in the Member State or imported from other Member States. In accordance with that case-law, such a tax must be calculated in such a way as to avoid any discrimination against such vehicles from other Member States. It must therefore not impose on imported second-hand vehicles a burden which exceeds the burden of residual tax included in the cost of an equivalent vehicle first registered in the same Member State at an earlier stage in its existence.

41. In that connection, it must be borne in mind that the market value of motor cars decreases as time passes. It has been the consistent basis of the Court’s case-law that when a tax on a new vehicle amounts to a certain proportion of its price, then the residual tax in its subsequent resale price after depreciation will amount to the same proportion of that price. Such a tax becomes part of the capital value of the vehicle. It thereafter remains constant as a proportion of that value after depreciation.

42. Thus, if the sale price of a new vehicle is made up of, say, 50% remuneration (cost plus profit) for the vendor and 50% tax, then after a period its depreciated value – say 60% of the price when new – will be made up in similarly equal parts of residual vendor’s remuneration and residual tax. That principle will hold true whatever the relative proportions of vendor’s price and tax. Any difficulty involved in the calculation stems not from determining those proportions (whose relationship to each other remains constant), but rather from determining the percentage of depreciation for the particular vehicle after the relevant period. That percentage will depend on factors which may vary, inter alia, between makes, models and individual vehicles.

43. The Court has stated that depreciation can be taken into account not only by assessment or expert examination of each vehicle but also, for example, by means of fixed scales based on criteria such as age, mileage, general condition, method of propulsion and make or model. Such fixed scales may perhaps refer to a guide or list indicating average current prices of second-hand vehicles on the national market. ( )

44. It seems to me that those statements do not represent a final and exhaustive summary. Other methods may also achieve an adequate result. In that connection, it is clear that calculation of the Polish excise duty on passenger cars does take account of depreciation inasmuch as it is based on the actual declared price of the relevant transaction.

45. However, in accordance with the detailed rules governing that calculation, ( ) the amount of duty to be paid is 3.1% or 13.6% of the car’s price, depending on engine capacity, during the year of manufacture and the following year, increasing in each case by 12% in each subsequent calendar year up to a maximum of 65%, which will be reached in the seventh year for cars with an engine capacity over 2000 cc and in the eighth year for other cars. The percentage is always of the sale price at the relevant time.

46. Consequently, cars sold new (that is to say, to their first purchaser) during the year of manufacture or the following year are treated in the same way, whether they are manufactured in Poland or another Member State.

47. In addition, the rate of duty (3.1% or 13.6% of the sale price) on a second-hand car imported into Poland during the year of manufacture or the following year is the same as the proportion of residual duty (3.1% or 13.6% of the vendor’s remuneration) in the value of a comparable car on which excise duty was charged in Poland when new and which is subsequently sold second-hand in Poland.

48. Those two situations seem entirely in accordance with the first paragraph of Article 90 EC, inasmuch as taxation of new or second-hand cars from other Member States does not exceed that charged on new or second-hand cars from within Poland.

49. For cars sold second-hand after the end of the year following their manufacture, the proportion of residual duty in the value of a car on which duty was charged in Poland when new remains constant at 3.1% or 13.6% (depending on engine capacity) of the depreciated value of the vendor’s remuneration. In contrast, the rate charged on second-hand cars from other Member States increases year by year up to 65%.

50. Consequently, in so far as that rate exceeds the proportion of residual duty in the value of a second-hand car on which duty was charged in Poland when new, the internal taxation on second-hand cars from other Member States exceeds that imposed on similar domestic products. It thereby contravenes the first paragraph of Article 90 EC. ( )

51. The Polish Government has put forward three considerations which in its view justify the method of calculation used. I shall address those considerations briefly, even though there is in any event nothing in the Treaty or in the Court’s case-law which allows for justification of discriminatory taxation contrary to Article 90 EC. ( )

52. First, it stresses environmental concerns, which form part of the fundamental goals of the European Community, set out in Article 2 EC. Older cars are in general likely to be more polluting, and it is therefore justifiable to discourage their purchase by differential taxation.

53. However, as I recalled in my Opinion in Nádasdi, ( ) the purpose of Article 90 EC is to prohibit any internal taxation which, all other things being equal, burdens products from other Member States more heavily than similar domestic products. A tax does not escape that prohibition simply because, in addition to its fundamental purpose of raising revenue, it seeks to favour environmentally-friendly products or habits. On the contrary, if it pursues such an aim, it must do so in a manner which does not burden domestic products less than those imported from other Member States.

54. Second, the Polish Government refers to a factor mentioned also in the order for reference: the belief or suspicion that in many if not all cases the purchase price declared to the authorities is significantly less than the actual price paid. It points out that the depreciated value taken as the basis for calculation is not determined by a formula which might be criticised for not taking true depreciation into account. It is taken, objectively, as the declared value of the transaction. However, there is justification for levying duty at a higher rate to compensate for its presumed declaration at an artificially low level.

55. That consideration does not appear to me to be valid in the present context. In order for such an approach to be consistent with the Court’s case-law on Article 90 EC, it would be necessary to assume that the purchase price of a car acquired from another Member State was systematically declared accurately during the year of manufacture and the following year, but then systematically under-declared by an increasing percentage each year, reaching a maximum degree of under-declaration after some seven years. I do not think that such an assumption can reasonably be made. It is of course quite possible that the problem of under-declaration exists, in the absence of any means of verifying the true price paid. To deal with that problem, however, it is necessary to find an objective means of assessing the true value of vehicles, or at least a good approximation of that value which may, if appropriate, be challenged.

56. Third, the Polish Government has produced figures demonstrating that the introduction of excise duty on purchases of second-hand cars from other Member States in May 2004 was accompanied by an immediate and very significant increase in such purchases. Thus, it argues, there is clearly no question of any discrimination against such purchases prohibited by Article 90 EC.

57. However, the prohibition in that article is not a matter of practical effect, nor yet a matter of degree. Article 90 EC quite clearly provides that no Member State may ‘impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products’. Unlike Article 28 EC, there is no mention of the effect which that taxation may produce on intra-Community trade. And it is settled case-law that ‘a system of taxation can be considered compatible with Article [90 EC] only if it is proved to be so structured as to exclude any possibility of imported products being taxed more heavily than domestic products, so that it cannot in any event have discriminatory effect’. ( )

58. Consequently, none of the considerations put forward by the Polish Government affects my view that the excise duty in question is incompatible with the first paragraph of Article 90 EC to the extent that the rate at which it is imposed on second-hand cars from other Member States exceeds the proportion of residual duty in the value of a comparable second-hand car on which duty was charged in Poland when new.





Question 3

59. The third question referred is essentially whether the second paragraph of Article 90 EC prohibits an excise duty imposed on second-hand cars imported from other Member States at a rate varying according to age and engine capacity, but not on the sale of second-hand cars within the Member State in question (on which it has already been imposed according to a similar formula before their initial registration there and whose resale price it thus subsequently affects).

60. The second paragraph of Article 90 EC prohibits internal taxation of such a nature as to afford indirect protection to domestic products which, although not similar to imported products for the purposes of the first paragraph, are nevertheless in a competitive relationship with them. ( )

61. However, the assessment which the referring court seeks concerns a comparison between second-hand cars already on the national market and second-hand cars acquired from another Member State. Those two categories are clearly similar products within the meaning of the first paragraph of Article 90 EC, under which the duty in question thus falls to be assessed.

62. Since nothing in the order for reference or the observations to the Court suggests that the duty affords indirect protection to any different domestic products which are in a competitive relationship with passenger cars, I consider that the assessment under the first paragraph of Article 90 EC, in the context of the national court’s second question, is sufficient. ( )





Question 4

63. The national court’s fourth question is essentially whether a requirement that a person acquiring a passenger car from another Member State must submit a declaration within five days of the ‘intra-Community acquisition’ is compatible with Article 28 EC and/or Article 3(3) of Directive 92/12.

64. As a preliminary point, it may be noted that this question seems to be based to some extent on a misapprehension by Mr Brzeziński as to the starting-point of the five-day period in issue.

65. It appears from the order for reference that he stated before the national court that he had been obliged to cut short his stay abroad and return to Poland in order to make the declaration within five days of purchasing the car in question in Germany, which prevented him from concluding other planned business there.

66. However, both the Polish Government and the Commission agree in their written observations that the date of an ‘intra-Community acquisition’ within the meaning of the Law on Excise Duty is the date of the car’s actual introduction into Poland. Mr Brzeziński did not contest that view at the hearing, or submit any other observations on this question.

67. To the extent that the question may be based on such a misapprehension, it is possible that the referring court no longer requires an answer to it. I think it none the less preferable to address the question, which may still have relevance for some other aspect of the national proceedings.

68. Article 28 EC prohibits quantitative restrictions on imports and all measures having equivalent effect – to the exclusion of fiscal measures – in trade between Member States. Article 3(3) of Directive 92/12 limits the right to levy taxes (on products other than mineral oils, alcohol, alcoholic beverages or manufactured tobacco) to those which do not give rise to border-crossing formalities in trade between Member States.

69. The correct basis for assessing the declaration requirement therefore depends on its classification either as a non-fiscal measure independent of the excise duty principally in issue (in which case Article 28 EC would be relevant) or as a formality to which the levying of that duty gives rise (in which case Article 3(3) of Directive 92/12 would be relevant).

70. The Commission states that the purpose of the declaration is to provide information on the number of cars imported and the amounts due by way of excise duty, a statement borne out by the form produced by the Polish Government at the hearing. The Commission concludes – in my view correctly on that basis – that the declaration requirement is a mandatory formality inseparably linked to the actual payment of the duty. That being so, Article 28 EC cannot be relevant.

71. Article 3(3) of Directive 92/12 might however be relevant if the requirement were to be regarded as a ‘border-crossing formality’ to which levying of the excise duty gives rise.

72. The referring court states that failure to submit a declaration within the five-day time-limit has no unfavourable consequences for the taxpayer. Only the requirement to pay the duty before the car’s first registration is essential.

73. The Commission and the Polish Government both point out that the declaration does not have to be made at the actual time when the car crosses the Polish border. However, if the declaration is indeed required, the precise moment does not seem to me to be relevant when determining the requirement’s status as a border-crossing formality. What is more important is that it is linked to the time of crossing the border, and not, as Mr Brzeziński appears to have believed, to the time of purchase.

74. The Commission further states in its written observations that the excise duty with which the declaration is indissolubly linked is levied not by reason of the car’s crossing the border but on the basis of the objective criterion of its first registration in Poland.

75. However, at the hearing the agent for the Polish Government made it clear that the excise duty, and thus the declaration requirement, applied in respect of all passenger cars brought into the country, even those not to be registered for use on the road – for example, those intended for display in an exhibition, for use off the road on private property, to be broken up for spare parts, etc.

76. It is further evident, from the forms produced by the Polish Government at the Court’s request, that a comparable (though not identical) declaration must be made in the case of cars produced in Poland, as a corollary to the payment of excise duty.

77. It seems, therefore, from the information before the Court, that excise duty is payable on all passenger cars whether manufactured in Poland or imported; that a declaration must be made to the relevant authorities in both cases; and that the timing of that declaration is linked to the first sale of the vehicle in Poland in the former case and to the introduction of the vehicle into Polish territory in the latter case.

78. In those circumstances, I do not consider that the declaration requirement in the latter case can be regarded as a border-crossing formality within the meaning of Article 3(3) of Directive 92/12. Where a tax is in itself lawful – and in the present case there is in my view no question as to the lawfulness of the Polish excise duty in principle, but merely as to the lawfulness of its method of calculation in respect of older vehicles ­– Member States cannot be precluded from requiring taxpayers to provide information on the basis of which they are to be taxed. My view is strengthened by the national court’s statement to the apparent effect that no sanctions are imposed in the event of failure to comply with the five-day time-limit.





Possible limitation of the temporal effect of the ruling

79. It follows from my analysis above that a tax such as the Polish excise duty is levied in breach of the first paragraph of Article 90 EC to the extent that the rate at which it is imposed on second-hand cars from other Member States exceeds the proportion of residual duty in the value of a comparable second-hand car on which duty was charged in Poland when new. The Court has consistently held that individuals are entitled to reimbursement of national charges levied in breach of Community law. ( )

80. With that possibility in mind, the referring court has asked the Court to specify a possible temporal limitation of the temporal effect of that judgment. Both in its written observations and at the hearing, the Polish Government has argued in favour of such a limitation.

81. According to settled case-law, the interpretation which the Court gives to a rule of Community law clarifies and where necessary defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. The rule as thus interpreted can, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation. ( )

82. The Court has most recently stated its practice in limiting the temporal effect of such judgments as follows:

‘It is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision it has interpreted with a view to calling in question legal relations established in good faith …

Moreover, it is settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling ...

The Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with Community legislation by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission of the European Communities may even have contributed …’ ( )

83. It is therefore necessary to consider first whether the method of calculating excise duty on second-hand cars imported from other Member States was adopted and applied in good faith, in a situation of objective, significant uncertainty, ( ) to which other Member States or the Commission may have contributed, regarding the implications of Article 90 EC; and second whether reimbursement of duty levied in breach of that provision would give rise to serious economic consequences for Poland.

84. On the first aspect, the Polish Government submits that the Court’s case-law in the field is not so complete and unequivocal as to exclude the possibility that what may be seen by a Member State as an objective criterion for applying differential rates of taxation to different products ( ) may not be judged in the same way by the Court. It also stresses that the Commission was fully notified of the details of the excise duty when it was introduced on 1 May 2004, but did not inform the Polish Government of its view that the duty was incompatible until 13 July 2005, after the date of the national court’s decision to seek a preliminary ruling in the present case.

85. I find it difficult to accept that the Court’s case-law is ambiguous in this matter. From a reading of the judgments which I have set out in points 4 to 22 of my Opinion in Nádasdi and summarised in points 11 and 12 above it is quite clear how the Court has approached the relationship between the rate of a one-off tax on imported second-hand vehicles and the proportion of residual tax in the value of domestic second-hand vehicles. There is a sufficient number of decisions from which consistent principles can be drawn, and the way in which Polish excise duty is calculated on second-hand cars imported from other Member States does not comply with those consistent principles.

86. Nor do I consider that the conduct of the Commission can be said to have contributed in any way to such uncertainty as the Polish Government may have felt. Clearly, the Commission cannot be expected to respond instantly to every notification of a new measure, the details of which may require considered examination. That is all the more true in a situation such as that of the enlargement of the Community from 15 to 25 Member States, when the 10 new Member States presumably communicated a considerable number of implementing measures over a short period. In such circumstances, the fact that the Commission did not respond for 14 months, though perhaps regrettable in an ideal world, cannot be said to have contributed to any uncertainty – in contrast to a situation in which it might for example have given some provisional assurance of compatibility. In any event, the mere fact that the Commission has not brought infringement proceedings by a particular date cannot justify a temporal limitation of the effects of a judgment. ( )

87. As regards the second aspect, the Polish Government has produced figures showing that the total excise duty on passenger cars collected for the period from 1 May 2004 to 30 April 2006 amounts to 1.16% of forecast revenue in 2006. ( )

88. However, it has not produced any breakdown of those figures from which it is possible to estimate what proportion of that total might have to be reimbursed. In particular, it must be borne in mind that the duty levied on all cars (including all imported cars) up to the end of the year following that of their manufacture is fully compliant with Community law. None of that duty will have to be reimbursed. In addition, only a portion of the duty levied on cars imported after that date can qualify for reimbursement. And in practice, it may be assumed that not all those entitled to reimbursement will in fact submit a claim. Moreover, it is open to the Polish authorities to adjust their method of calculating excise duty on passenger cars in such a way as to compensate over a period for any loss.

89. In those circumstances I do not consider that the Court has been presented with evidence of serious economic repercussions, within the meaning of its case-law, such as to justify a limitation of the temporal effect of its judgment. There is no suggestion that, to adapt the words of the EKW judgment, ( ) unlimited temporal effect might ‘retroactively cast into confusion the system whereby the Polish State is financed’.

Conclusion

90. In the light of all the above considerations, I am of the view that the Court should give the following answers to the questions referred for a preliminary ruling by the Wojewódzki Sąd Administracyny w Warszawie:

(1) An excise duty charged both on goods imported from other Member States and on the same goods of domestic manufacture is not a customs duty or charge having equivalent effect prohibited by Article 25 EC.

(2) An excise duty imposed on all passenger cars in a Member State, whether new or second-hand and whatever their origin, complies with the first paragraph of Article 90 EC to the extent that the rate of duty is the same for domestic cars and those imported from other Member States. It does not however comply with that provision if, and to the extent that, the rate of duty on second-hand cars imported from other Member States exceeds the proportion of residual duty in the value of comparable second-hand cars on which the same duty was imposed in the Member State in question before their first registration there.

(3) Such a duty falls to be assessed under only the first, and not the second, paragraph of Article 90 EC if there are no other domestic products which are in a competitive relationship with passenger cars.

(4) A requirement that goods subject to excise duty in a Member State be declared to the authorities within five days of their introduction into the territory of that State, in order to enable those authorities to levy the duty, is not a quantitative restriction on imports or a measure having equivalent effect within the meaning of Article 28 EC. Nor, where an equivalent requirement exists in respect of similar goods of domestic manufacture, is it a border-crossing formality within the meaning of Article 3(3) of Council Directive 92/12/EEC.