1. The reference for a preliminary ruling concerns the interpretation of Articles 25 EC, 28 EC and 90 EC, and also Article 3(1) and (3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products.
2. The questions were raised in proceedings between Mr Brzeziński and the Dyrektor Izby Celnej w Warszawie (Director of the Warsaw Customs Office) concerning excise duties charged to him in connection with the purchase of a second-hand motor vehicle in Germany for the purposes of importing the vehicle into Poland. Legal framework Community legislation
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 reads as follows: ‘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) and (3) of Directive 92/12 provides: ‘1. This Directive shall apply at Community level to the following products as defined in the relevant Directives: - mineral oils, - alcohol and alcoholic beverages, - manufactured tobacco. … 3. 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. Subject to the same proviso, Member States shall also retain the right to levy taxes on the supply of services which cannot be characterised as turnover taxes, including those relating to products subject to excise duty.’ National legislation
7. Article 2 of the Polish Law of 23 January 2004 on Excise Duty (Dz. U No 29, heading 257), in the version applicable to the main proceedings (‘the 2004 Law’) provides: ‘For the purposes of the present law, the terms below shall be construed as follows: … (11) “intra-Community acquisition”: the transfer of goods subject to excise duty from the territory of a Member State to Poland; …’.
8. Article 10(1) of the 2004 Law is worded as follows: ‘The tax base, where the rate is expressed as a percentage of the basis of assessment, shall be: (1) the amount due on the sale, in Poland, of goods subject to excise duty, minus the amount of the tax on goods and services or of the excise amount due on those goods; (2) the amount which the purchaser is obliged to pay for the goods subject to excise duty, in the case of intra-Community acquisition; (3) the amount due on the delivery of goods subject to excise duty in the territory of a Member State, in the case of delivery within the Community; (4) the customs value of the goods subject to excise duty, plus the amount of customs duties due, in the case of import, having regard to paragraphs 6 to 9.’
9. Article 75 of the 2004 Law provides: ‘1. The rate of tax on non-harmonised goods subject to excise duty shall be 65% of the base provided for in Article 10, except for the rate applicable to electrical power. … 3. The minister competent in matters of public finances may, by order, reduce the rates of excise duty provided for in paragraphs 1 and 2 and differentiate them according to types of goods, and determine the conditions of application thereof.’
10. According to Article 80 of the 2004 Law: ‘1. Passenger cars not registered in Poland in accordance with the road traffic provisions shall be subject to excise duty. 2. The following shall be liable for excise duty: (1) persons effecting any sale of passenger cars before their initial registration in Poland; (2) importers and persons effecting acquisitions in the Community. 3. Excise duty on vehicles arises: (1) in the case of sale, as from the issue of the invoice and, at the latest, within seven days from the day the goods are delivered; (2) in the case of import, as from the day on which the customs debt arises for the purposes of customs law; (3) in the case of acquisition in the Community, from the time of acquisition of the right to use the passenger car as owner and, at the latest, from its registration in Poland in accordance with the road traffic provisions. 4. The minister competent in matters of public finances may, by order, fix the information concerning passenger vehicles, including the eligible carrying capacity, for the purposes of charging excise duty, in the light of the solutions applied by the specific taxation provisions and the need to ensure proper charging of excise duty.’
11. Article 81(1) of the 2004 Law is worded as follows: ‘Persons effecting, in the Community, intra-Community acquisitions of passenger cars not registered in Poland in accordance with the road traffic provisions, shall be required: (1) to submit, at the time of import into Poland, a simplified declaration to the appropriate customs office within five days of the date of the acquisition in the Community; (2) to pay excise duty no later than the date of registration of the vehicle in Poland.’
12. Under Article 82(3) of the 2004 Law, in the case of an intra-Community acquisition of a passenger car, the taxable amount is the amount the purchaser is required to pay to the vendor.
13. Article 7 of the Order of the Minister for Finance of 22 April 2004 on the lowering of the rates of excise duty (Dz. U No 87, heading 825), in the version applicable to the main proceedings (‘the 2004 Order’), and Annexes 1 and 2 thereto indicate that, for cars which are new or less than two years old the percentage of excise duty is 3.1% or 13.6% depending on engine capacity and that, for vehicles over two years old, that percentage is fixed using a calculation formula laid down in Article 7(2) of the 2004 Order and varies according to the age of the vehicle, attaining a maximum of 65% of the tax base. The main proceedings and the questions referred for a preliminary ruling
14. The claimant in the main proceedings, Mr Brzeziński, purchased in Germany a Volkswagen Golf II passenger car, manufactured in 1989, which he then imported into Poland. On 21 June 2004, pursuant to Article 81(1)(1) of the 2004 Law, he submitted a simplified AKC‑U declaration pertaining to the acquisition of that vehicle in the Community. On 23 June following, he paid PLN 855 by way of excise duty.
15. By letter of 6 July 2004, Mr Brzeziński requested reimbursement of the excise duty he had paid which, in his view, had been wrongly charged, stating that the charging of such a duty is contrary to Articles 23 EC, 25 EC and 90 EC. By decision of 17 August 2004, the director of Warsaw Customs Office No 1 refused that request.
16. On 2 September 2004, Mr Brzeziński lodged a complaint against that decision before the Dyrektor Izby Celnej w Warszawie. By decision of 18 January 2005, the latter upheld the decision of the director of the Warsaw Customs Office No 1 and rejected the claim before him.
17. In his action before the Wojewódzki Sąd Administracyjny w Warszawie (Administrative Court, Voïvodie, Warsaw) against that decision dismissing his complaint, the claimant asked for the decision to be set aside and for the customs administration to be ordered to reimburse him the amount of the excise duty collected unduly by it on the ground that it is incompatible with the aforementioned Community provisions.
18. In response to the pleas put forward by the claimant, the Dyrektor Izby Celnej w Warszawie argued that the plea alleging infringement of Article 90 EC was unfounded and asked for the action to be dismissed.
19. In those circumstances, the Wojewódzki Sąd Administracyjny w Warszawie decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(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 2004 Law] where excise duty is charged on the acquisition of any vehicle, irrespective of its place of origin before 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 vehicles imported from other Member States without charging such duty on the sale of second-hand vehicles already registered in Poland, where the excise duty has been imposed, under Article 80(1) of [the 2004 Law], on all vehicles 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 vehicles 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 [Article 7 of the 2004 Order], where the duty on the sale of second-hand vehicles in Poland is calculated according to a similar formula before their initial registration in Poland and this duty subsequently affects the price of that vehicle 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 2004 Law], 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?’ Discussion of the questions referred for a preliminary ruling The first question
20. By its first question, the national court asks in essence whether an excise duty such as that introduced by the 2004 Law is a customs duty on imports or a charge having equivalent effect within the meaning of Article 25 EC.
21. A duty such as the excise duty at issue in the main proceedings is not a customs duty in the strict sense.
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.
25. Consequently, the answer to the first question must be that an excise duty such as that introduced in Poland by the 2004 Law, which does not affect passenger vehicles by reason of the fact that they cross the frontier, is not a customs duty on imports or a charge having equivalent effect within the meaning of Article 25 EC. The second and third questions
26. By its second and third questions, which it is appropriate to examine together, the national court asks, essentially, whether Article 90 EC is to be interpreted as precluding a duty having the characteristics of the excise duty introduced by the 2004 Law, by reason of the fact that that duty applies to the acquisition of second-hand vehicles originating from Member States other than that which introduced the duty, but not to the acquisition of second-hand vehicles already registered in that Member State, vehicles to which it has already been applied previously to their initial registration, since such a duty is capable of constituting internal taxation on goods from other Member States in excess of either that imposed directly or indirectly on similar domestic products within the meaning of the first paragraph of Article 90 EC, or imposed on products of other Member States and of such a nature as to afford indirect protection to other products within the meaning of the second paragraph 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.
30. It is apparent from the case-file from the main proceedings that the national court’s question, based on a comparison of second-hand vehicles already on the national market and those acquired in another Member State, seeks to compare two categories of similar products within the meaning of the first paragraph of Article 90 EC. However, there is nothing in the case-file to indicate that taxation of second-hand vehicles acquired in a Member State other than Poland affords indirect protection to products other than motor vehicles which is prohibited by the second paragraph of Article 90 EC.
31. Accordingly, it is appropriate to examine the excise duty at issue in the main proceedings solely in the light of the first paragraph of Article 90 EC.
32. In order to ensure the neutrality of internal taxation in respect of competition between second-hand motor vehicles already on the national market and similar vehicles imported from a Member State other than the Republic of Poland, it is necessary to compare the effects of the excise duty imposed on the latter vehicles with the effects of the residual excise duty imposed on the former vehicles, which have already been subject to that same duty at the time of their initial registration.
33. In making such a comparison, it is appropriate, first, to note that the excise duty at issue in the main proceedings is charged only once, on new and second-hand vehicles, in respect of all vehicles intended for registration in Poland, whether they were manufactured in Poland or imported from other Member States.
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.
37. By contrast, the excise duty imposed on second-hand vehicles sold more than two years after their date of manufacture is calculated using the formula provided for in Article 7 of the 2004 Order. The application of that formula results in a situation where the percentage increases with the age of the vehicle, a point made by the Commission and not contested by the Polish Government.
38. It is, moreover, for the national court to examine whether such an increase in the percentage is imposed only on second-hand vehicles originating from a Member State other than the Republic of Poland and whether, by contrast, for second-hand vehicles which were registered when they were new in Poland the percentage of residual excise duty incorporated into the price of such a vehicle remains constant.
39. In such a hypothesis, the arguments put forward by the Polish Government in order to justify that difference in taxation rates cannot be accepted. The Polish Government has, first, referred to environmental concerns; second, it has voiced the suspicion that, in a large number of cases, the purchase price declared to the authorities is significantly less than the price actually paid; and, lastly, it has observed that that difference is not discriminatory because figures show that the introduction of an excise duty on second-hand vehicles purchased in other Member States in May 2004 was accompanied by an immediate and very significant increase in those types of purchases.
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
42. By its fourth question, the national court asks whether Article 28 EC and Article 3(3) of Directive 92/12 preclude a rule of national law such as that laid down in Article 81(1)(1) of the 2004 Law requiring the submission of a simplified declaration for the purposes of the latter provision within five days of the day of the intra-Community acquisition.
43. The Court notes, as a preliminary point, that the difference of opinion concerning the interpretation of the obligation to make the declaration between Mr Brzeziński, according to whom the five-day time-limit starts to run as from the date of the acquisition of the vehicle in Germany, and the Polish Government and the Commission, according to whom that time-limit starts to run as from the actual introduction of the vehicle into Poland in the case of an intra-Community acquisition, has no bearing on the determination of whether that requirement constitutes a barrier.
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.
46. The Polish Government and the Commission take the view that this is not the case in the main proceedings. They argue, essentially, that the obligation provided for in Article 81(1)(1) of the 2004 Law arises after the import of the vehicle subject to excise duty into Poland and therefore after the crossing of the border. The Commission adds that the time-limit for complying with that formality starts to run as from the time of the intra-Community acquisition of the vehicle, that is, after it has crossed the border.
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.
49. Consequently, the first subparagraph of Article 3(3) of Directive 92/12 does not apply to the main proceedings and accordingly cannot preclude an obligation to submit a simplified declaration in the event of an intra-Community acquisition.
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).
51. By contrast, the obligation to submit a simplified declaration under Article 81(1)(1) of the 2004 Law not being a true obstacle of a fiscal nature, in the proper sense, is inextricably linked to the actual payment of the excise duty. As pointed out by the Polish Government and the Commission, it is aimed inter alia at ensuring recovery of that duty.
52. In those circumstances, an obligation such as that provided for in Article 81(1)(1) of the 2004 Law is no more than the corollary of the passenger vehicle purchaser’s being required to pay the excise duty; Article 28 EC therefore does not apply.
53. It follows from all the foregoing considerations that the answer to the fourth question must be that Article 28 EC does not apply to a simplified declaration such as that provided for in Article 81(1)(1) of the 2004 Law and that Article 3(3) of Directive 92/12 does not preclude such a declaration when the legislation in question may be interpreted as meaning that that declaration must be made as from the time of the 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. Limitation of the temporal effect of this judgment
54. If the judgment to be delivered should find that the first paragraph of Article 90 EC precludes the levying of an excise duty such as the one introduced by the 2004 Law, the Polish Government has, in its written observations, asked the Court to place a temporal limit on the effects of the judgment.
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.
61. In those circumstances, it is not necessary to determine whether the criterion relating to the good faith of those concerned is fulfilled.
62. Accordingly, there is no need to limit the temporal effect of this judgment. Costs
63. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.