Maciej Brzeziński v Dyrektor Izby Celnej w Warszawie.
Date: 2007-01-18
22. As regards the question whether such a duty is a charge having equivalent effect, it is settled 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 frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 23 EC and 25 EC (see, inter alia, Case C‑90/94 Haahr Petroleum  [1997] ECR I‑4085, paragraph 20; Case C‑213/96 Outokumpu  [1998] ECR I‑1777, paragraph 20; and Joined Cases C‑290/05 and C‑333/05 Nádasdi and Németh  [2006] ECR I‑0000, paragraph 39).
23. An excise duty such as that introduced by the 2004 Law is not charged by reason of the fact that goods cross a frontier of the Member State which introduced that duty. It is clear from both Article 80(3)(3) of that Law and the explanations given by the Polish Government at the hearing that the excise duty is levied on all passenger vehicles before their initial registration in Poland and that, in order to ensure fulfilment of that objective, a number of factors may give rise to liability for this duty. Thus, for example, it will be chargeable when the vehicle is sold or, in the case of an intra-Community acquisition as defined in Article 2(11) of that Law, upon the acquisition of the right to use a passenger vehicle as owner and, at the latest, as from the time of its registration in Poland.
24. Such a tax comes under the general system of internal taxation on goods and must therefore be examined in the light of Article 90 EC.
27. As the Court has already held, within the system of the EC Treaty, Article 90 EC supplements the provisions on the abolition of customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminate against products from other Member States (Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium  [2006] ECR I‑0000, paragraph 55, and the case-law cited, and Nádasdi and Németh , paragraph 45).
28. As far as the taxation of imported second-hand vehicles is concerned, the Court has also held that Article 90 EC seeks to ensure the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products (see Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 66, and the case-law cited).
29. According to settled case-law, the first paragraph of Article 90 EC 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 Weigel , paragraph 67, and the case-law cited). Thus, under that provision, an excise duty must not affect products originating from other Member States more onerously than similar domestic products.
34. Second, a distinction must be drawn between two categories of vehicles, with the first category comprising those which are sold as second-hand vehicles during the two calendar years following their manufacture, the year of manufacture being considered to be the first calendar year, and the second category comprising those sold second‑hand after that two‑year period.
35. First of all, regarding passenger vehicles sold new or second‑hand during that two-year period, the 2004 Order makes it clear that they are subject to excise duty calculated according to the same percentage, as stated in paragraph 13 of this judgment.
36. Regarding second-hand vehicles less than two years old, it is, more specifically, for the national court to ascertain, in the light of, inter alia, the 2004 Order, whether they are in reality subject to the same burden because of the excise duty, by virtue of the fact that the residual amount of that duty incorporated into the market value of second-hand vehicles registered in Poland is equal to the amount of the same duty imposed on similar second-hand vehicles originating from a Member State other than the Republic of Poland.
40. It is settled law that a system of taxation may be considered compatible with Article 90 EC only if it is so arranged as to exclude any possibility of imported products being taxed more heavily than similar domestic products, so that it cannot in any event have discriminatory effect ( Haahr Petroleum , paragraph 34, and Case C‑375/95 Commission  v Greece  [1996] ECR I‑5981, paragraph 29).
41. It follows from the foregoing considerations that the answer to the second and third questions referred must be that the first paragraph of Article 90 EC is to be interpreted as meaning that it precludes an excise duty, in so far as the amount of the duty imposed on second-hand vehicles over two years old acquired in a Member State other than that which introduced such a duty exceeds the residual amount of the same duty incorporated into the market value of similar vehicles already registered in the Member State which introduced that duty. It is for the national court to examine whether the legislation at issue in the main proceedings, in particular the application of Article 7 of the 2004 Order, has such an effect.
The fourth question
44. By analogy with the Court’s case-law, according to which in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law (see Case C‑324/99 DaimlerChrysler [2001] ECR I‑9897, paragraph 32, and Case C‑210/03 Swedish Match  [2004] ECR I‑11893, paragraph 81), it is appropriate to examine the obligation to submit a simplified declaration, first, in the light of Directive 92/12, in particular the prohibition of such a formality laid down in the first subparagraph of Article 3(3), whilst leaving for the moment the issue of whether the excise duty has in fact been exhaustively harmonised at Community level.
45. As pointed out by the Advocate General in point 71 of her Opinion, Article 3(3) of Directive 92/12 might be relevant only if the requirement were to be regarded as a ‘border-crossing formality’ giving rise to the levying of the excise duty.
47. It is for the national court to ascertain whether the legislation as a whole at issue in the main proceedings may be interpreted in the sense advocated by the Polish Government. Although the simplified declaration must be submitted at the time of the intra-Community acquisition of the vehicle, and thus at the time of crossing a border, that formality relates not to that crossing for the purposes of the first subparagraph of Article 3(3) of Directive 92/12, but to the obligation to settle the excise duty.
48. That being so, the purpose of the simplified declaration being to ensure payment of the debt corresponding to the excise duty, that formality thus relates to the event giving rise to the excise duty. Under that interpretation, the duty will be owing, as provided for by Article 80(3)(3) of the 2004 Law, as from the time of acquisition of the right to use the passenger vehicle as owner and, at the latest, as from the time of its registration in Poland in accordance with the road traffic provisions.
50. Nor, according to settled case-law, can such an objection be assessed in the light of Article 28 EC. The scope of that article does not extend to the obstacles to trade covered by other specific provisions and obstacles of a fiscal nature or having an effect equivalent to customs duties, which are covered by Articles 23 EC, 25 EC and 90 EC, do not fall within the prohibition laid down in Article 28 EC (see Case C‑228/98 Dounias  [2000] ECR I‑577, paragraph 39, and Case C‑383/01 De Danske Bilimportører  [2003] ECR I‑6065, paragraph 32).
55. According to settled case-law, the interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 234 EC, 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. It follows that 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, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (see, inter alia, Case 24/86 Blaizot  [1988] ECR 379, paragraph 27; Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 141; and Case C‑402/03 Skov and Bilka  [2006] ECR I‑199, paragraph 50).
56. Accordingly, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling in question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, Case C‑57/93 Vroege  [1994] ECR I‑4541, paragraph 21; Case C‑372/98 Cooke  [2000] ECR I‑8683, paragraph 42; and Skov and Bilka , paragraph 51).
57. More specifically, 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 may even have contributed (see, inter alia, Case C‑423/04 Richards  [2006] ECR I‑3585, paragraph 42).
58. It is also 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 (Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 52, and Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraph 68).
59. Regarding the risk of serious difficulties, at the hearing the Polish Government produced figures relating to the period from 1 May 2004, the date on which the Republic of Poland acceded to the European Union, and 30 April 2006, thus a two-year period, and showing that the total excise duties levied on passenger cars amounted to 1.16% of the budget revenues forecasted for 2006. However, the Court has not been provided with a breakdown of those figures, which would have afforded the opportunity to assess what proportion of that total would give rise to reimbursement. Moreover, only the excise duty amounts exceeding those corresponding to the residual duty included in similar second-hand vehicles originating from the Member State concerned must be reimbursed.
60. Consequently, the Court finds that the risk of serious economic difficulties, as contemplated in the case-law referred to in paragraphs 56 and 57 of this judgment, such as to justify placing a temporal limitation on the effects of this judgment, has not been established.
62. Accordingly, there is no need to limit the temporal effect of this judgment.
Costs