The leasing company, which is entered in the Central Vehicle and Driver Records (CEPiK), is liable for the unpaid carriage by road in the leasing, alternatively than the lessee who committed the infringement. As the NSA stated in its final judgement in Case II GSK 1818/23.
The decision of the ultimate Administrative Court may constitute an adverse message to leasing companies. This means that taxation authorities can enforce fees from leasing companies themselves for specified cases. Although the amendment of the rules which abolished tolls on GDDKiA-managed motorways for vehicles up to 3.5 tonnes has taken place since July of the erstwhile year, this judgement may have contributed to the imposition of hundreds of penalties for tolls before the changes.
In this peculiar case, the IRS requested an additional fee of PLN 500 from 1 of the leasing companies for breaching the work to pay the toll section of the A2 Zgierz North-Stryków motorway. The company refused to pay, arguing that she did not commit the offence due to the fact that although at the time of the infringement the vehicle was in its possession, it was utilized by the lessee.
However, officials did not accept this position. Rejecting the objection, they recalled that the work to pay a toll on the motorway was incumbent on the owner, holder or user of the vehicle (all collectively referred to as the toller), in accordance with the provisions of the Highways Act and the National Road Fund. According to CEPiK's records, the owner of the car on the day of the unpaid ride was a lessor. In addition, the rules do not require the KAS to establish the actual identity of the driver on the motorway and the catalogue of persons obliged to pay the fee is limited.
The lessor did not comply with that explanation and the case was referred to court. After a fewer twists at first instance, he managed to win. The Provincial Administrative Court in Łódź stated that the contested provision ordered to pay a toll on the road and to analyse an additional charge on each vehicle user on the basis of a lease agreement, i.e. from the lessee. This occurred whether the user was reported to the Central Vehicle Records and Drivers or not.
The Court of First Instance pointed out that the call for payment of the additional fee may be made straight to the lessee, but in the absence of information in the Central Vehicle and Driver Records (CEPiK), it is besides possible to request this from the owner. However, the owner may waive this obligation, proving that the vehicle was utilized by another individual on the day of the journey under the lease agreement. In the event of a disputed case, for example, an agreement expressly excluding the applicant’s liability for failing to pay a toll may be evidence.
NSA doesn't think so.
Unfortunately, this favourable explanation for leasing companies was not defended against the ultimate Administrative Court (NSA). The NSA noted that the strategy of controversial charges was justified by CEPiK data. Moreover, the appeal procedure in this case is simplified and hybrid. It is the task of the Authority to find whether the fee has not been paid, to initiate appropriate proceedings and to address a call to the entity indicated in the Act.
According to the ultimate Administrative Court (NSA) in a controversial situation, the call for payment of the additional fee should be the lessor alternatively than the lessee. The Court considers that accepting the explanation of the Provincial Administrative Court (WSA) would consequence in a charge being imposed on a individual who is not subject to specified a charge and would so reduce the anticipation of officials acting. In practice, in the case of cars covered by the lease, it would be hard to take any steps. This would be incompatible with the intention of the legislator and would lead to exemption not only from the additional charge but besides from the toll.
In addition, account should be taken of the content of leasing contracts. As stated by the NSA justice Wojciech Więsz, the fact that the lessee bears the costs of utilizing the vehicle cannot be ignored. This suggests that the leasing company has a basis for demanding reimbursement of the paid fee from the lessee. The conviction is final.
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