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.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
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