On 9 July 2012, the Constitutional Tribunal rendered a judgement in which it addressed the constitutionality of the original wording of Article 14 of the Act on Recycling of End-of-Life Vehicles (Journal of Laws of 2005 no. 25 item 202, as subsequently amended) (“ELV Recycling Act”). The ELV Recycling Act imposes on manufacturers and importers of new cars and small vans an obligation to set up a system for collection of end-of-life vehicles. Such system is required to be national in its scope so that each owner is capable of surrendering his/her motor vehicle at the respective collection or dismantling facility. Under the original wording of Article 14 of the ELV Recycling Act, if an undertaking marketing a motor vehicle did not provide such system, it was required to pay the recycling fee of PLN 500 per each motor vehicle put on the market. Thus, the regulation equated those undertakings which took the effort of setting up a vehicle dismantling system but failed to provide it nationally with those which completely ignored that statutory obligation.
Under an amendment of 25 September 2007, Article 14 of the ELV Recycling Act was modified and the obligation to pay the recycling fee was made conditional upon the progress of work in the development of the vehicle collection system. If the coverage was at least 95 percent of the national territory, undertakings were exempt from the payment of the fee, and the attainment of coverage corresponding to specific increments listed under the Act resulted in a proportional reduction of the fee relative to the size of the national coverage achieved. Article 2 of the amending Act of September 2007 contained a transitional provision laying down a requirement to apply the new regime to fees payable for 2007. Since the regulation did not provide any procedure for calculation of the fee for failure to set up the system in the preceding period, it was concluded based on an a contrario interpretation, that the fee payable in the event of failure to set up the system in 2006 would be based on the original wording of the ELV Recycling Act.
In the light of the above provisions, the Regional Administrative Court in Warsaw put a question to the Constitutional Tribunal regarding doubts whether or not Article 14 of the ELV Recycling Act as originally worded was constitutional.
The Constitutional Tribunal did not share the doubts expressed by the administrative court regarding potential violation of the principle of proportionality by the statutory regulation (as originally worded) of the fee payable for failure to provide the motor vehicle collection system. The Constitutional Tribunal pointed out that the recycling fee as such was not intended as a means of repression. Its fundamental purpose was to provide an incentive for undertakings marketing motor vehicles in Poland to set up a system enabling adequate recycling of the end-of-life vehicles. In addition, the Constitutional Tribunal stressed that the original regulation provided for proportionality of the fee payable for failure to set up the system. It was calculated not only as the product of the rate of PLN 500 and the number of vehicles put on the Polish market but also as the number of days in a year (expressed as a percentage) when the system was unavailable. Those undertakings which succeeded with time in providing the required coverage of the dismantling system paid a proportionally lower fee. Further, as indicated by the Constitutional Tribunal, the incurred fees referred to in Article 14 of the ELV Recycling Act were tax deductible which was beneficial for the importers of motor vehicles. Finally, the Constitutional Tribunal held that Article 14 of the ELV Recycling Act as binding until the effective date of the amending Act of 2007, to the extent to which it did not differentiate the rate of the fee for failure to set up the system relative to the extent of coverage of the national territory, complied with Article 2 of the Constitution (principle of adequacy (proportionality) of legislative arrangements to the intended purpose of the regulation). The Constitutional Tribunal also held that Article 2 of the Act of 29 June 2007, to the extent to which it mandates application of Article 14 of the ELV Recycling Act in its original wording to the calculation of the fee payable for failure to set up the system in 2006, complied with the principle of adequacy (proportionality) of legislative arrangements to the intended purpose of the regulation) laid down under Article 2 of the Constitution.
The determination of the Constitutional Tribunal means that the undertakings which prior to the amendment of the ELV Recycling Act did not set up a national vehicle dismantling system will be required to pay the outstanding recycling fees.