P.M. v Dyrektor Izby Administracji Skarbowej w Warszawie (C-105/22)

Contents

Judgment of the Court (Eighth Chamber)17 May 2023^note(Reference for a preliminary ruling — Free movement of goods — Tax provisions — Article 110 TFEU — Excise duty — Export of a vehicle registered in a Member State to a country of the European Economic Area (EEA) — Refusal to reimburse the excise duty paid in respect of that vehicle up to an amount proportionate to the duration of its use in the territory of the Member State of registration — Principle that excise duty is a single-stage tax and principle of proportionality)In Case C‑105/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 27 April 2021, received at the Court on 15 February 2022, in the proceedingsP.M.vDyrektor Izby Administracji Skarbowej w Warszawie,THE COURT (Eighth Chamber),composed of M. Safjan, President of the Chamber, N. Jääskinen (Rapporteur) and M. Gavalec, Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Dyrektor Izby Administracji Skarbowej w Warszawie, by M. Rutka,– the Polish Government, by B. Majczyna, acting as Agent,– the European Commission, by M. Björkland and B. Sasinowska, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 56 TFEU, the principle that excise duty is a single-stage tax and the principle of proportionality.

2The request has been made in proceedings between P.M. and the Dyrektor Izby Administracji Skarbowej w Warszawie (Director of the Tax Administration Chamber in Warsaw, Poland), concerning the latter’s refusal to reimburse an excise duty paid by the applicant in the main proceedings.

Legal context

European Union law

The FEU Treaty

3The first paragraph of Article 110 TFEU states:‘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.’

Directive 2008/118/EC

4In accordance with Article 1 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12):1.This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):(a) energy products and electricity covered by [Council] Directive 2003/96/EC [of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)];(b) alcohol and alcoholic beverages covered by [Council] Directives 92/83/EEC [of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21)] and 92/84/EEC [of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 29)];(c) manufactured tobacco covered by [Council Directive] 95/59/EC [of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40)], [Council Directive] 92/79/EEC [of 19 October 1992 on the approximation of taxes on cigarettes (OJ 1992 L 316, p. 8)] and [Council Directive] 92/80/EEC [of 19 October 1992 on the approximation of taxes on manufactured tobacco other than cigarettes (OJ 1992 L 316, p. 10)].…3.Member States may levy taxes on:(a) products other than excise goods;(b) the supply of services, including those relating to excise goods, which cannot be characterised as turnover taxes.However, the levying of such taxes may not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

5Article 7(1) of Directive 2008/118 provides:‘Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.’

Polish law

6It follows from Article 100(1) of the ustawa o podatku akcyzowym (Law on Excise Duty) of 6 December 2008 (Dz. U. of 2009, No 3, item 11), in its version applicable to the dispute in the main proceedings (Dz. U. of 2019, item 864) (‘Law on Excise Duty’), that, in the case of a passenger car, the excise duty relates to:‘…(1) the importation into the national territory of a passenger car which has not previously been registered in that territory in accordance with the provisions on road traffic;(2) the intra-Community acquisition in the national territory of a passenger car which has not previously been registered in that territory, in accordance with the provisions on road traffic;(3) the first sale in the national territory of a passenger car which has not been registered in that territory, in accordance with the provisions on road traffic:(a) which has been manufactured in that territory;(b) on which excise duty has not been paid in respect of the transactions referred to in points 1 or 2.’

7Article 100(3) of that law provides, with regard to a tax liability arising in respect of a passenger car as a result of one of the taxable transactions referred to in the preceding paragraph, that no tax liability arises on the basis of another taxable transaction if the amount of the excise duty concerned has been determined or declared.

8Article 107(1) of that law provides:‘Where an entity which has acquired the right to dispose as owner of a passenger car previously unregistered in Poland in accordance with the provisions on road traffic, on which excise duty was paid in Poland, makes an intra-Community supply or export of that passenger car, or if that supply or export is made on its behalf, the entity concerned shall be entitled to the reimbursement of excise duty upon an application submitted to the appropriate head of the tax office within a year of the date on which the intra-Community supply or export of the passenger car in question was made.’

The dispute in the main proceedings and the question referred for a preliminary ruling

9By request of 5 March 2019, the applicant in the main proceedings, a trader, applied to the Naczelnik Urzędu Skarbowego (Head of the Tax Office, Poland) (‘the Head of the Tax Office’) for the reimbursement of excise duty due to the export, on 7 March 2018, of a passenger car to Norway. In that context, it was established that the applicant in the main proceedings had submitted an excise declaration on the intra-Community acquisition of that vehicle and had paid the corresponding excise duty.

10By decision of 29 April 2019, the Head of the Tax Office refused that reimbursement, taking the view that the applicant in the main proceedings did not satisfy the condition concerning the absence of registration of the vehicle concerned in national territory. That vehicle had been the subject of automatic temporary registration, following the application for registration of that vehicle, in that territory on 9 August 2017, in accordance with the national provisions on road traffic. In that regard, the Head of the Tax Office found that the date of registration of a vehicle was the date of its automatic temporary registration, which is part of the registration process the purpose of which is to allow the vehicle to be used permanently on roads in that territory.

11By decision of 13 August 2019, the defendant in the main proceedings upheld the decision of the Head of the Tax Office.

12The applicant in the main proceedings brought an action before the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court in Warsaw, Poland) against that decision. That court dismissed that action, taking the view that it was not necessary to reimburse the applicant in the main proceedings the excise duty paid following the export of the vehicle concerned, since all the conditions referred to in Article 107(1) of the Law on Excise Duty were not satisfied in the present case, and, in particular, the condition relating to the absence of registration of that vehicle in the national territory.

13The applicant in the main proceedings brought an appeal on a point of law before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which is the referring court.

14In the first place, the referring court asks whether national legislation such as that at issue in the main proceedings does not result in domestic entrepreneurs who export passenger cars to third countries or make an intra-Community supply of such vehicles being less competitive than entrepreneurs from other EU countries who export or make an intra-Community supply of such vehicles. The mere registration of a passenger car prevents those entrepreneurs from obtaining reimbursement of the excise duty paid, even for an amount calculated in proportion to the duration of the use of that vehicle in the national territory.

15In the second place, that court asks whether that national legislation is contrary to the principle that excise duty is a single-stage tax, the application of which is linked to the actual consumption of passenger cars, and to the principle of proportionality.

16In that regard, the referring court explains that, according to Article 107 of the Law on Excise Duty, reimbursement of excise duty is due irrespective of whether it was paid on the first sale of the vehicle concerned, on an intra-Community acquisition or on its importation into the national territory. In addition to the payment of that excise duty, the ‘primary condition’ for obtaining the right to reimbursement of that duty is the confirmation that the passenger car concerned has been exported from the national territory. However, that right to reimbursement is excluded for vehicles which were registered before being exported, even in the case of temporary registration.

17According to the referring court, if, despite the registration of a passenger car, it was not used, and accordingly, was not consumed in the national territory or the period of its use or consumption was short, charging the full excise duty on that vehicle in Poland appears to be contrary not only to the principle of taxation of goods at the place of consumption, but also to the principle of free movement of goods – in this case passenger cars – between individual Member States within the European Union as well as in trade with third countries.

18Referring, in particular, to the order of 27 June 2006, van de Coevering (C‑242/05, EU:C:2006:430, paragraph 29), that court considers that the mere registration of a passenger car should not constitute an obstacle to the reimbursement of an excise duty if that vehicle was not, and was not intended to be, used in the Member State which introduced it. It is apparent from that order that the amount of a tax such as the excise duty at issue in the main proceedings must be proportionate to the duration of the use of the vehicle in the Member State concerned.

19In addition, that court observes that, once the vehicle is delivered to another Member State or exported outside the European Union, that vehicle may be subject there to local consumption taxes or charges similar in nature to that excise duty, which could constitute, in the absence of reimbursement of that excise duty in Poland, a breach of the principle that excise duty is a single-stage tax.

20It is against that background that the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘Must Article 56 of the [TFEU], the principle that excise duty is a single-stage tax on actual consumption, and the principle of proportionality be interpreted as precluding the application of a provision of national law such as Article 107(1) of the [Law on Excise Duty] in so far as it precludes the reimbursement to a taxable person of excise duty upon the export of a registered passenger car, calculated in proportion to the period during which that car was used in the national territory?’

Consideration of the question referred

21As a preliminary point, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may not only have to reformulate the question referred to it, but also to consider provisions of EU law which the national court has not referred to in its questions (judgment of 13 October 2022, Herios, C‑593/21, EU:C:2022:784, paragraph 19 and the case-law cited).

22In the present case, the Court is asked, inter alia, about the interpretation of Article 56 TFEU in specific circumstances in which the intra-Community acquisition of a passenger car is at issue, which has been subject to excise duty because of its registration in Poland, then the subsequent sale and export of that vehicle to Norway, and where that vehicle has not been the subject of a transaction, such as hire or leasing, associated with the supply of a service, within the meaning of Article 56 TFEU.

23In that regard, first of all, according to settled case-law, ‘goods’, within the meaning of the FEU Treaty, means goods which can be valued in money and which are capable, as such, of forming the subject of commercial transactions (judgments of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, p. 626, and of 3 December 2015, Pfotenhilfe-Ungarn, C‑301/14, EU:C:2015:793, paragraph 47). Since motor vehicles are goods which can be valued in money and are capable, as such, of forming the subject of commercial transactions, they must be regarded as being ‘goods’ within the meaning of that Treaty.

24Those vehicles are not included in the categories of excise goods in all Member States under Article 1(1) of Directive 2008/118 and therefore are not covered by the harmonised excise duty arrangements.

25As the Court has held, although Member States may introduce or maintain taxes on those goods, they must exercise their competence in that field in a manner consistent with EU law (judgment of 17 December 2015, Viamar, C‑402/14, EU:C:2015:830, paragraph 39 and the case-law cited).

26Specifically, Member States must comply, in that regard, not only with the provisions of the FEU Treaty but also with those of Article 1(3) of Directive 2008/118, since the latter provisions prohibit the levying of a tax from entailing formalities connected with the crossing of frontiers in trade between Member States (judgment of 17 December 2015, Viamar, C‑402/14, EU:C:2015:830, paragraph 40 and the case-law cited).

27Next, 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, according to settled case-law, a charge having equivalent effect within the meaning of Articles 28 and 30 TFEU (judgment of 22 May 2019, Krohn & Schröder, C‑226/18, EU:C:2019:440, paragraph 37 and the case-law cited).

28As regards a registration tax levied by a Member State on the registration of motor vehicles for the purpose of being put into circulation in its territory, the Court has consistently held that such a tax does not constitute either a customs duty or a charge having equivalent effect to a customs duty, within the meaning of Articles 28 and 30 TFEU. Such a tax is an internal tax and must therefore be examined in the light of Article 110 TFEU (judgment of 17 December 2015, Viamar, C‑402/14, EU:C:2015:830, paragraph 33 and the case-law cited).

29As regards, more specifically, an excise duty not covered by the harmonised excise duty under Directive 2008/118, such as the excise duty at issue in the main proceedings imposed on all passenger vehicles registered in the national territory concerned, such an excise duty must be regarded as forming part of the general system of internal taxation of goods, which must be examined in the light of the first paragraph of Article 110 TFEU (see, to that effect, judgment of 18 January 2007, Brzeziński, C‑313/05, EU:C:2007:33, paragraph 24).

30In those circumstances, it must be held that, by its single question, the referring court asks, in essence, whether primary EU law, in particular the first paragraph of Article 110 TFEU, the principle that excise duty is a single-stage tax and the principle of proportionality, must be interpreted as precluding national legislation which does not provide, when a passenger car registered in the Member State concerned is exported, for reimbursement of the excise duty paid in respect of that vehicle in that Member State up to an amount which is proportionate to the duration of the use of that vehicle in the territory of that State.

31In that regard, in the first place, the first paragraph of Article 110 TFEU prohibits Member States from imposing, directly or indirectly, on products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

32As the Court has held, the aim of that provision of the FEU Treaty is to ensure free movement of goods between the Member States in normal conditions of competition. It is therefore intended to eliminate all forms of protection which may result from the application of internal taxation, in particular those which discriminate against products from other Member States (see, to that effect, judgment of 14 April 2015, Manea, C‑76/14, EU:C:2015:216, paragraph 28 and the case-law cited).

33Furthermore, it follows from the settled case-law of the Court that a system of taxation can be considered as being 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 (judgment of 12 February 2015, Oil Trading Poland, C‑349/13, EU:C:2015:84, paragraph 46 and the case-law cited).

34In 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 (judgment of 12 February 2015, Oil Trading Poland, C‑349/13, EU:C:2015:84, paragraph 47 and the case-law cited).

35In the present case, although it will be for the referring court to carry out the necessary checks, it is apparent from the request for a preliminary ruling that, in the event of an intra-Community supply or export of a passenger car, the person who acquired the right to dispose of that vehicle as owner is entitled to reimbursement of the excise duty paid only if that vehicle has not been registered in Poland. According to the information available to the Court, that condition applies without distinction to all vehicles, irrespective of their origin.

36In the second place, as regards the principle that excise duty is a single-stage tax, it must be pointed out that, in the absence of harmonisation at EU level, the Court has held that the disadvantages which could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions on the freedom of movement. Moreover, the Member States are not obliged to adapt their own tax systems to the different systems of tax of the other Member States, in order, inter alia, to eliminate double taxation (see, to that effect, judgment of 21 November 2013, X, C‑302/12, EU:C:2013:756, paragraphs 28 and 29, and the case-law cited).

37The Court has also held that it is irrelevant, from the point of view of Article 110 TFEU, that a motor vehicle, as a result of the refusal of an export refund of vehicle tax, the taxable event of which is the registration and putting into circulation of that motor vehicle, is subject, on its definitive export from one Member State to another Member State, to several motor vehicle taxes at different times and in different Member States (see, to that effect, judgment of 2 February 2023, Veronsaajien oikeudenvalvontayksikkö (Vehicle tax), C‑676/21, EU:C:2023:63, paragraphs 36 and 37).

38That conclusion also applies in the context of the export of a passenger car outside the European Union, such as that at issue in the main proceedings. Thus, the disadvantages which could arise, as the case may be, from the multiplier effect of the lack of reimbursement of the excise duty paid in the case of the export of a passenger car previously registered in the Member State concerned up to an amount which is proportionate to the duration of the use of that vehicle in the territory of that State, on the one hand, and from the fact that that vehicle is subject to similar taxes or charges in the State of destination, on the other, cannot be regarded as being contrary either to Article 110 TFEU or to the principle that excise duty is a single-stage tax.

39In the third place, as regards the principle of proportionality, the Court has held, in the context of provisions of the FEU Treaty relating to the freedom to provide services, that a registration tax is contrary to the principle of proportionality in so far as the aim which it pursues might be achieved by introducing a tax the amount of which is proportionate to the duration of the registration of the vehicle in the State where it is used, which would ensure there was no discrimination with respect to amortisation of the tax against vehicle leasing undertakings established in other Member States (judgment of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 69).

40In the same vein, the Court noted, in the order of 27 June 2006, van de Coevering (C‑242/05, EU:C:2006:430, paragraph 29), to which the referring court makes reference, national legislation which requires the payment of a tax the amount of which is not proportionate to the use of a vehicle in the Member State concerned, even if the legislation pursues a legitimate objective compatible with the Treaty, is contrary to the Treaty provisions on the freedom to provide services, where it applies to vehicles leased and registered in another Member State which are neither intended to be used essentially in the first Member State on a permanent basis nor in fact used in that way, except where its aim cannot be achieved by introducing a tax proportionate to the duration of the use of the vehicle in that State.

41It should be noted that that case-law concerns the application of the freedom to provide services in the context of hire or leasing contracts. It cannot be transposed to the situation at issue in the main proceedings, which concerns, not a cross-border supply of services, but the intra-Community acquisition of a passenger car, which was subject to excise duty by reason of its registration in Poland, then the subsequent sale and export of that vehicle to Norway.

42In that regard, according to the information available to the Court, excise duties in respect of passenger cars covered by the Law on Excise Duty do not take on the characteristics of a tax linked to the duration of the use of those vehicles, but rather that of a tax on consumption of those vehicles, which is implemented via the registration of the passenger car concerned in national territory.

43It is apparent, in particular, from the request for a preliminary ruling that the vehicle in question in the main proceedings was registered in the national territory on 9 August 2017, that is to say, approximately seven months before the vehicle was exported to Norway on 7 March 2018. That date of registration corresponds to the date of automatic temporary registration of that vehicle, which forms part of the ordinary registration process, the purpose of which is to allow a vehicle to be used permanently on roads in the national territory concerned. In that regard, and subject to the checks which are for the referring court to carry out, it therefore appears that automatic temporary registration of a vehicle is to be distinguished, in particular, from temporary registration carried out in order to enable that vehicle to be exported abroad.

44It should be added that, where the importer, whether a natural person or a trader, opts for full ownership of the vehicle importation and the resulting registration of that vehicle in that national territory, any intentions of that importer concerning the subsequent use of the vehicle concerned are irrelevant for the purposes of assessing, in the light of Article 110 TFEU and the principle of proportionality, whether it is subject to the excise duty concerned and, in the event of re-export of that vehicle, of the refusal to reimburse the duty paid.

45In such circumstances, it cannot be held to be contrary to the principle of proportionality for a taxable person subject to excise duty who exports the passenger vehicle concerned registered in that national territory to be refused reimbursement of the duty paid.

46In the fourth place, it must be stated, in so far as it may be relevant, that the fact that, in the present case, the applicant in the main proceedings exported the vehicle concerned to Norway cannot affect the answer to be given to the question referred.

47Article 110 TFEU corresponds to Article 14 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and, according to the national legislation at issue in the main proceedings, the right to a reimbursement of the tax concerned is subject to compliance with the same conditions for vehicles sold within the territory of the European Union and for vehicles exported outside the European Union.

48In the light of all the foregoing considerations, the answer to the question referred must be that primary EU law, in particular the first paragraph of Article 110 TFEU, and the principle that excise duty is a single-stage tax and the principle of proportionality, must be interpreted as not precluding national legislation which does not provide, when a passenger car registered in the Member State concerned is exported, for reimbursement of the excise duty paid in respect of that vehicle in that Member State up to an amount which is proportionate to the duration of the use of that vehicle in the territory of that State.

Costs

49Since 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.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: Primary EU law, in particular the first paragraph of Article 110 TFEU, and the principle that excise duty is a single-stage tax and the principle of proportionality, must be interpreted as not precluding national legislation which does not provide, when a passenger car registered in the Member State concerned is exported, for reimbursement of the excise duty paid in respect of that vehicle in that Member State up to an amount which is proportionate to the duration of the use of that vehicle in the territory of that State.