Dariusz Krawczyński v Dyrektor Izby Celnej w Białymstoku.
Date: 2008-07-17
18. It should first be recalled that, in accordance with settled case-law, in order to decide whether a tax, duty or charge can be characterised as a turnover tax within the meaning of Article 33(1) of the Sixth Directive, it is necessary, in particular, to determine whether it has the effect of jeopardising the functioning of the common system of value added tax (‘VAT’) by being levied on the movement of goods and services and on commercial transactions in a way comparable to VAT (Joined Cases C-283/06 and  C-312/06 KÖGÁZ and Others  [2007] ECR I‑8463, paragraph 34 and the case-law cited).
19. The Court has stated in that regard that taxes, duties and charges must, in any event, be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT, even if they are not identical to it in every way ( KÖGÁZ and Others , paragraph 35 and the case-law cited).
20. Article 33(1) of the Sixth Directive, however, does not preclude the maintenance or introduction of a tax which does not display one of the essential characteristics of VAT ( KÖGÁZ and Others , paragraph 36 and the case-law cited).
21. The Court has established the essential characteristics of VAT. According to its case-law there are four such characteristics: VAT applies generally to transactions relating to goods or services; it is proportional to the price charged by the taxable person in return for the goods and services which he has supplied; that tax is charged at each stage of the production and distribution process, including that of retail sale, irrespective of the number of transactions which have previously taken place, and the amounts paid during the preceding stages of the production and distribution process are deducted from the VAT payable by a taxable person, with the result that that tax applies, at any given stage, only to the value added at that stage and the final burden of that tax rests ultimately on the consumer ( KÖGÁZ and Others , paragraph 37 and the case-law cited).
29. As a preliminary point, it must be noted that an excise duty such as that imposed by the national legislation at issue in the main proceedings comes under the general system of internal taxation on goods and must therefore be examined in the light of Article 90 EC (see, to that effect, Case C-313/05 Brzeziński  [2007] ECR I-513, paragraph 24).
30. It should be recalled that the Court has held that Article 90 EC supplements, within the system of the EC Treaty, 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 discriminates against products from other Member States ( Brzeziński , paragraph 27 and the case-law cited).
31. In relation to the taxation of imported second-hand vehicles, 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 (Case C-74/06 Commission  v Greece [2007] ECR I-7585, paragraph 24 and the case-law cited).
32. In addition, 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 ( Brzeziński , paragraph 40 and case-law cited).
34. When that comparison is being made, a distinction must be drawn between two categories of vehicles, with the first category comprising those which are sold second-hand 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 ( Brzeziński , paragraph 34).
35. With regard to passenger cars sold new or second-hand during that two-year period, the 2004 Order makes clear that they are subject to excise duty calculated according to the same rate (see, to that effect, Brzeziński , paragraph 35).
36. Regarding second-hand vehicles less than two years old, it is, more specifically, for the national court to ascertain, in the light of, in particular, 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 in a Member State other than the Republic of Poland ( Brzeziński , paragraph 36).
42. It should be recalled in this connection that 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, which it has interpreted, with a view to calling in question legal relations established in good faith (Case C-292/04 Meilicke and Others [2007] ECR I-1835, paragraph 35 and the case-law cited).
43. Such a restriction may, according to the Court’s settled case-law, be allowed only in the actual judgment ruling upon the interpretation sought ( Meilicke and Others , paragraph 36 and the case-law cited).
44. Indeed, there must necessarily be a single occasion when a decision is made on the temporal effects of the requested interpretation, which the Court gives of a provision of Community law. In that regard, the principle that a restriction may be allowed only in the actual judgment ruling upon that interpretation guarantees the equal treatment of the Member States and of other persons subject to Community law, under that law, fulfilling, at the same time, the requirements arising from the principle of legal certainty ( Meilicke and Others , paragraph 37).
45. The present reference for a preliminary ruling concerns, essentially, the question of the compatibility with the first paragraph of Article 90 EC of an excise duty which is levied on the sale of motor vehicles before their initial registration on national territory. In that regard, it follows from paragraph 41 of the judgment in Brzeziński  that the first paragraph of Article 90 EC is to be interpreted as precluding 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 previously 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, and in particular the application of Article 7 of the 2004 Order, has such an effect.
46. As indicated in paragraph 62 of Brzeziński , the Court did not limit the temporal effects of that judgment.