Minister Finansów v Oil Trading Poland sp. z.o.o.
Date: 2015-02-12
25. Secondly, in accordance with Article 78(3) of the Law on excise duty, during an intra-Community acquisition of those products under the duty-paid excise procedure, they are subject to the obligations set out in Article 78(1) of that law. Referring to the judgments in Brzeziński (C‑313/05, EU:C:2007:33) and Kalinchev (C‑2/09, EU:C:2010:312), the referring court questions whether the obligations of declaring the intra-Community purchase and guaranteeing payment of the excise duty before import are to be regarded as formalities connected with the crossing of frontiers for the purposes of Article 3(3) of Directive 92/12 and the second subparagraph of Article 1(3) of Directive 2008/118. It has doubts as to whether it should be considered that those obligations aim to ensure payment of the excise duty, in so far as that aim may be achieved through compliance with other obligations laid down in Article 78(1) of the Law on excise duty, namely the obligations of submitting a simplified declaration, calculating the excise duty and paying it within 10 days from when the tax obligation arose and of maintaining records of intra-Community acquisitions of excise goods.
31. In those circumstances, it should be held that those lubricating oils are products other than ‘excise goods’ within the meaning of Article 1(1) of Directive 2008/118, so that, in accordance with Article 1(3) of that directive, Member States may levy taxes on those products, provided that the levying of such taxes does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers (see, to that effect, in relation to Article 3(1) and (3) of Directive 92/12, judgment in Fendt Italiana , EU:C:2007:411, paragraph 44).
37. In that regard, it is clear from the case-law of the Court that, if the purpose of a formality imposed on the importer of a product subject to a national tax is to ensure payment of the debt corresponding to that tax, such a formality is related to the event giving rise to the tax, namely an intra-Community acquisition, and not to the crossing of a frontier in the sense of that provision (see, to that effect, judgments in Brzeziński , EU:C:2007:33, paragraphs 47 and 48, and Kalinchev , EU:C:2010:312, paragraph 27).
45. According to settled case-law of the Court, the fact that the referring court’s question refers to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question. It is, in this regard, for the Court to extract from all the information provided by the referring court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, inter alia, judgment in Ville d’Ottignies-Louvain-la-Neuve and Others , C‑225/13, EU:C:2014:245, paragraph 30 and the case-law cited). Consequently, it should be assessed whether Article 110 TFEU precludes those payment deadlines from being imposed.
46. According to settled case-law, a system of taxation of a Member State can be considered compatible with Article 110 TFEU 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 (see judgment in X , C‑437/12, EU:C:2013:857, paragraph 28 and the case-law cited).
47. In that regard, the first paragraph of Article 110 TFEU is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (see, to that effect, judgments in Bobie Getränkevertrieb , 127/75, EU:C:1976:95, paragraph 3, and Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten , C‑221/06, EU:C:2007:657, paragraph 49 and the case-law cited).
48. As the Court has already made clear, such is the case where the deadlines for payment of a tax charged on domestic production are longer than those applied to products imported from other Member States. Such a benefit reserved to domestic production involves a difference in treatment to the detriment of imported products, which is contrary to the prohibition laid down in Article 110 TFEU (see, to that effect, judgment in Grundig Italiana , C‑68/96, EU:C:1998:299, paragraph 23 and the case-law cited).