VIA penalty on recipient of waste - US car

# What is it?

Whether an imported car is waste is determined by: the legal status of the vehicle; the technical condition of the vehicle; the will of the previous owner (in terms of disposing of the vehicle). Unfortunately, it is a common practice of Polish environmental authorities to abandon consideration of the above premises and assess whether a vehicle is waste solely on the basis of the existence of the title Salvage, Nonrepairable, etc.

Poland has adopted a structure in which it is two separate authorities - the Provincial Inspector of Environmental Protection (WIOŚ) and the Chief Inspector of Environmental Protection (GIOŚ) - which investigate the status of a damaged vehicle imported from abroad. Although in theory the authorities are obliged to cooperate with each other to the extent necessary to thoroughly clarify the factual and legal status of the case, practice shows a very different reality.

It happens, for example, that the WIOŚ imposes a penalty after the GIOŚ proceeding to dispose of the vehicle and declare it waste. There are also possible configurations where the GIOŚ decides to dispose of the vehicle and the WIOŚ does not impose a penalty, or the GIOŚ issues a decision to discontinue the proceedings, but the WIOŚ nevertheless imposes a penalty. In such situations, the legal problem of the relationship between the possible GIOŚ Order and the WIOŚ Decision (binding of the proceedings / prejudicature) may arise.

Sometimes it can come to a situation where even after the car has been repaired, passed the first technical inspection in the country and even registered, unexpectedly the VIA can consider the vehicle as waste and impose a fine.

# Can something be done?

A decision by the VIO imposing a penalty on the recipient of a foreign-purchased, damaged vehicle due to its recognition as waste does not automatically mean that it must be paid. A party to the proceedings has the right to appeal to the GIOŚ. At the same time, the party may apply to the authority to suspend the enforceability of the Decision.

There are various avenues and strategies to challenge the Decision of the WIOŚ. One can, within the Law on International Shipments of Waste, try to challenge the very classification of the imported vehicle as waste (technical condition, legal status, disposal issue). Another solution is to use the grounds for waiving the penalty that the Code of Administrative Procedure provides. One of them, for example, is the negligible seriousness of the violation of the law. This one requires an individual approach to each case and the development of a strategy and relevant applications (including evidence).

Another possibility is to try to challenge the authority's interpretation of the US document stating the vehicle's legal status. This is due to a misunderstanding of the US mechanisms of the automotive market, which often results in the VIA using the ownership document as the sole premise for considering a vehicle as waste. Moreover, it sometimes happens that Polish authorities, on the basis of the ownership document alone, erroneously conclude that the vehicle is not authorized in the United States itself or has lost its purpose due to an accident. The Polish Inspectorate of Environmental Protection also quite often overestimates the scale of repairs needed to a vehicle. European regulations on safety standards after minor repairs are liberal, while Polish authorities are able to consider the replacement of a bumper and engine parts as activities exceeding such scope.

Evaluating the factual condition of a vehicle can be objectively difficult, so the law has provided for such cases the principle that in case of doubt the authority should decide in favor of the party potentially burdened with an obligation or restriction. Polish authorities are unfortunately apt to forget this basic principle of administrative procedure, so it is always worthwhile to carefully study the reasoning in the Decision. In addition, as mentioned earlier, in the event of simultaneous disposal proceedings by the GIOŚ and the imposition of a penalty by the WIOŚ, one should request in the appeal a suspension of the proceedings before the WIOŚ and focus forces on proving in the first instance that there is no waste in the case.

In addition, even if the GIOŚ upholds the Order as part of the Order terminating the course of administrative proceedings, this final Order is also subject to a so-called complaint to the Provincial Administrative Court. Also, for the duration of such administrative court proceedings, upon a duly motivated request, the GIOŚ itself (and, as a last resort, the Court) may suspend enforcement of the Decision until the case is heard.

It is difficult to predict in advance the situation you may face, so even if your particular case does not fit into the above scenarios, it is worth contacting for consideration of a specific, perhaps only seemingly different, problem.

# How can we help?

Jaskowiak Nadra Attorneys at Law has many years of experience in representing EU and non-EU vehicle importers, both in terms of excise tax, tax base and environmental issues. We represent clients at every stage of proceedings before the GIOŚ. We make a comprehensive assessment of the facts related to a particular vehicle and analyze the arguments of the GIOŚ in the context of taking into account the legal and economic realities prevailing in the United States. We advise so that already at the stage of initiation of proceedings before the GIOŚ we collect and present relevant evidence in order to demonstrate the most important circumstances in this type of case arising from the rulings of administrative courts in similar cases.

After sending to the address of the law firm the Decision of the Provincial Inspectorate of Environmental Protection or the Decision of the Chief Inspectorate of Environmental Protection made in your case (both initiating and possibly ending the proceedings), we will advise what steps are possible to take presenting our recommendation and offering professional handling of the case.