According to Article 4, point 4 of the Road Transport Act (RTA), non-commercial road transport - transport for own needs is defined as any journey of a vehicle on public roads with passengers or without, loaded or unloaded, intended for free national and international road transport of persons or goods, carried out by an entrepreneur ancillary to their main economic activity, and fulfilling the following conditions collectively:
a) motor vehicles used for transport are operated by the entrepreneur or their employees,
b) the entrepreneur has a legal title to dispose of motor vehicles,
c) in the case of a journey of a loaded vehicle - the goods transported are owned by the entrepreneur or have been sold, purchased, leased, leased, produced, extracted, processed, or repaired by them, or the purpose of the journey is the transport of persons or goods from the enterprise or to the enterprise for its own needs, as well as the transport of employees and their families,
d) it is not transport carried out within the scope of business activity in the field of tourist services.
Each journey on public roads of a motor vehicle (with a permissible total mass exceeding 3.5 tonnes) that does not meet the criteria of "non-commercial road transport (transport for own needs)" should be treated as "road transport". Non-commercial road transport (transport for own needs) has been distinguished from the concept of road transport in the Act. Failure to meet one of the statutory criteria precludes the possibility of classifying a specific journey as transport for own needs, even if it was carried out on a one-time basis and ancillary to the entrepreneur's main economic activity (cf. judgment of the Supreme Administrative Court of 8 September 2022, file reference II GSK 757/19).
The criterion allowing a specific journey to be classified as transport for own needs is the subordinate nature of this journey to the entrepreneur's main economic activity. It is non-commercial transport, free of charge, the entrepreneur bears the costs of necessary transport for carrying out their registered primary activity, other than transport.
It is emphasized that such transport constitutes ancillary activity in relation to the entrepreneur's primary activity. It has been established in case law that all the features of own transport listed above in points a), b), c), and d) must occur collectively (cf. e.g., judgment of the Supreme Administrative Court of 18 September 2014, file reference II GSK 1049/13, available as cited).
It must be remembered that the fact of carrying out a journey by a vehicle with a permissible total mass exceeding 3500 kg means that the exclusions from the application of the provisions of the RTA cannot apply to this journey, and consequently, its execution is subject to the requirements specified by law. Consequently, the presumption that the transport does not constitute transport for own needs means that it constitutes road transport, the undertaking and performance of which - in accordance with Article 5 (1) of the RTA - requires obtaining a permit for the occupation of road transport operator, on the terms laid down in Regulation (EC) No 1071/2009 of the European Parliament and of the Council.
The basic condition for carrying out road transport within the scope of road transport is obtaining a transport license, while the basic condition for carrying out non-commercial transport - transport for own needs is a certificate of notification of such transport. Road transport for own needs may be carried out after obtaining a certificate confirming the notification by the entrepreneur of conducting road transport as ancillary to their main economic activity. In other words, every non-commercial transport carried out by a vehicle subject to the RTA regulations, by an entrepreneur not authorized to carry out road transport and performing activity other than transport, is subject to the obligation to report the carried-out transport for own needs.
Importantly, in such cases, it is necessary for the party itself to initiate the evidence. The authority is not obliged to demonstrate circumstances releasing the entrepreneur from liability. Its obligation boils down to enabling the party to present relevant arguments supported by evidence.