Case C‑313/05, Brzeziński

The Court of Justice yesterday held that a Polish excise duty on second-hand vehicles was incompatible with Article 90 EC in so far as it affected vehicles imported from another member state more onerously than those already registered in Poland.

Polish law provided that excise duty applied to the acquisition of second-hand vehicles originating from other Member States but not to the acquisition of second-hand vehicles already registered in Poland, these vehicles already having been subject to the duty upon their initial registration.

For cars which were less than two years old the percentage of excise duty was 3.1% or 13.6% depending on engine capacity, for older vehicles that percentage varied according to the age of the vehicle, attaining a maximum of 65% of the tax base.

Article 81 of the Polish Law required that persons effecting intra-Community acquisition of passenger cars not registered in Poland in were 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.

Mr Brzeziński, who had purchased a 1989 Volkswagen Golf, manufactured in Germany which he then imported into Poland, requested reimbursement of the excise duty he had paid.

The referring court asked essentially whether the excise duty was compatible with Articles 25 and 90 EC, and whether the
declaration as required in Article 81(1) of the Polish Law was compatible with Article 28 EC.

Article 25 EC

The Court reiterated that any pecuniary charge, whatever its designation and mode of application, which was imposed unilaterally on goods by reason of the fact that they crossed a frontier, and which was not a customs duty in the strict sense, constituted a charge having equivalent effect within the meaning of Articles 23 and 25 EC. (see cased cited below)

The Court held that the excise duty was not a customs duty on import or a charge having equivalent effect within the meaning of Article 25 EC, as it did not affect passenger vehicles by reason of the fact that they crossed the frontier. The excise duty was levied on all passenger vehicles before their initial registration in Poland.

Article 90 EC

The Court reiterated that Article 90 EC supplemented the provisions on the abolition of customs duties and charges having equivalent effect.The aim of this provision was to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which might result from the application of internal taxation that discriminated against products from other Member States. (see cased cited below)

Article 90 EC sought to ensure the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products.

Therefore, Article 90(1) EC was infringed where the tax charged on the imported product and that charged on the similar domestic product were calculated in a different manner on the basis of different criteria which led, if only in certain cases, to higher taxation being imposed on the imported product.

Thus, an excise duty must not affect products originating from other Member States more onerously than similar domestic products.

The Court reiterated that a system of taxation might be considered compatible with Article 90 EC only if it was so arranged as to exclude any possibility of imported products being taxed more heavily than similar domestic products, so that it could not in any event have discriminatory effect.

It followed that Article 90 (1) precluded an excise duty such as in the present case, 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 exceeded the residual amount of the same duty incorporated into the purchase price of similar vehicles which had been previously registered in the Member State which introduced that duty. It was for the national court to examine whether the Polish legislation at issue in the main proceedings, had such an effect.

Article 28 EC

The Court furthermore held that Article 28 EC did not apply to a simplified declaration such as that provided for in Article 81(1)(1) of the Polish Law.

It reiterated that the scope of Article 28 did 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 were covered by Articles 23 EC, 25 EC and 90 EC.

It held that the obligation to submit a simplified declaration was not a true obstacle of a fiscal nature, in the proper sense. It was inextricably linked to the actual payment of the excise duty, aimed inter alia at ensuring recovery of that duty, and therefore not more than the corollary of the requirement to pay the excise duty.

Text of Judgment

Related case law:

Article 25 and 90

Case C‑90/94 Haahr Petroleum [1997] ECR I‑4085

Case C‑213/96 Outokumpu [1998] ECR I‑1777

Joined Cases C‑290/05 and C‑333/05 Nádasdi and Németh [2006], nyr

Joined Cases C393/04 and C41/05 Air Liquide Industries Belgium [2006] , nyr

Case C387/01 Weigel [2004] ECR I4981

Case C375/95 Commission v Greece [1996] ECR I5981

Relationship between Article 28 and Articles 25 and 90 EC

Case C‑228/98 Dounias [2000] ECR I‑577

Case C‑383/01 De Danske Bilimportører [2003] ECR I‑6065