Excise duty on lubricating oils (Customs and Excise Duty Alert – 2/2013)
The Supreme Administrative Court addressed a question concerning excise duty on lubricating oils to the European Court of Justic
On 5 March 2013 the Supreme Administrative Court addressed a prejudicial question to the European Court of Justice. The question concerned compliance of imposing excise duties on lubricating oils, designated for purposes other than fuel or diesel oils with the EU law.
The question of the Supreme Administrative Court concerning excise duty on lubricating oils
Doubts raised by the Supreme Administrative Court boil down to a question: “Should Article 3.3 of the 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 (Official Journal of the EU L 076 of 23 March 1992 p. 1 as amended; Official Journal of the EU Polish special edition – Section 9, v. 1, p. 179) – and at present Article 1.3 (a) paragraph 1 of the Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (Official Journal of the EU L 9 of 14 January 2009, p. 12, as amended), respectively – be interpreted in such manner that it does not object to imposing by a member state excise duty on lubricating oils assigned a code No. CN 2710 19 71 – 2710 19 99, used for purposes other than diesel or fuel oils in line with the principles applied to unified excise duty on energy products?”
Resolution of the Supreme Administrative Court concerning excise duty on lubricating oils
The issue in question was discussed in a resolution issued recently by seven judges of the Supreme Administrative Court of 29 October 2012, file No. I GPS 1/12, where the Supreme Administrative Court confirmed the right of Polish authorities to impose excise duty on lubricating oils, which is disadvantageous for taxpayers. It must be stressed, however, that the resolution concerned taxation in accordance with the previous Act on excise duty dated 23 January 2004. The issue still raises considerable interpretation doubts.
Following the question addressed to the European Court of Justice, the issue we be re-examined, this time in the context of the EU law. Consequently, the restrictive approach presented in the resolution of seven judges of the Supreme Administrative Court may be revised.