Opinion of Advocate General Jääskinen delivered on 23 April 2015.

• Jurisdiction: European Union
• Celex Number: 62014CC0069
• ECLI: ECLI:EU:C:2015:269
• Docket Number: C-69/14
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 23 April 2015

OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 23 April 2015 ( 1 )

Case C‑69/14

Dragoș Constantin Târșia

v

Statul român

Serviciul Public Comunitar Regim Permise de Conducere și Inmatriculare a Autovehiculelor

(Request for a preliminary ruling from the Tribunalul Sibiu (Romania))

‛Member State legislation permitting review of definitive (judicial) decisions in breach of EU law delivered in administrative proceedings but not in civil proceedings — Request for a revision of a final decision taken with respect to pollution tax on motor vehicles in civil proceedings — Res judicata — Principles of effectiveness and equivalence — Article 47 of the Charter of Fundamental Rights’

I – Introduction

1. In 2007 the applicant instituted proceedings before a Romanian civil court for recovery of a special tax on motor vehicles which he had paid for a car imported from another Member State. The payment was due because registration in Romania by the relevant government authority was contingent on the production of proof of payment of the special tax on motor vehicles. Later, in April 2011, the Court ruled in the judgment in Tatu that Article 110 TFEU precluded Romania from levying pollution tax on motor vehicles on their first registration in that Member State if the tax were arranged in such a way that it discouraged the placing in circulation in Romania of second-hand motor vehicles purchased in other Member States, without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market. ( 2 )

2. Prior to the ruling in Tatu, the applicant’s claim concerning the recovery of the part of the special tax corresponding with the pollution tax was rejected by a civil judgment that became final under Romanian law. The applicant therefore argues that EU law requires that he is afforded the opportunity to recover the tax, particularly given that Romanian legislation provides for an exception to res judicata for judgments that turn out to be incompatible with EU law, but only for judgments issued in administrative proceedings.

3. According to the established case-law of the Court, charges levied in breach of EU law, and amounts paid to the State or retained by it directly related to that tax, are to be repaid, and with interest, so that the situation existing prior to the levying of the amount is restored. ( 3 ) However, at the same time the Court has acknowledged that the principle of res judicata, which is entrenched in the legal systems of all of the Member States, and in EU law itself, ( 4 ) applies to judgments of national courts that have become final, even if they appear to be inconsistent with EU law. ( 5 ) This means that, in some circumstances, repayment of such charges can (lawfully) be refused.

4. However, due to the limitations EU law places on the procedural autonomy of the Member States, if national law provides for exceptions to the principle of res judicata, by allowing final judgments to be reopened in certain circumstances, then this exceptional path must also be open when the final judgment in issue is incompatible with EU law. ( 6 )

5. The case to hand therefore affords the Court an opportunity to develop its case-law on the interplay between res judicata and the primacy of EU law. More particularly, it is to be considered in the light of the principle of sincere cooperation in Article 4(3) TEU, various provisions of the Charter of Fundamental Rights of the European Union, namely, the Article 47 right to an effective remedy and equality before the law as guaranteed by Article 20, along with the conventional bases on which national rules on res judicata have been challenged for compliance with EU law, namely the principles of effectiveness and equivalence. ( 7 )

II – Legal framework

6. Article 148 of the Romanian Constitution ( 8 ) recognises the primacy of EU law, and obliges the Parliament, the President of Romania, the Government, and the judiciary to guarantee it.

7. Article 322 of the Romanian Code of Civil Procedure ( 9 ) states as follows: ‘The revision of a judgment which has become final either on appeal or because no appeal was brought, and a judgment on the substance from the appeal court, may be sought in the following cases: … 9 if the European Court of Human Rights has found an infringement of rights or fundamental freedoms as a result of a judicial decision and the serious consequences of that infringement continue to be produced, and may be remedied only by revision of the judgment; 10 if, after a judgment becomes final, the Curtea Constituțională (Constitutional Court) rules on the plea [of unconstitutionality] raised in the case, declaring unconstitutional the law, the decree or a specific provision of the law or decree which is the subject of the plea or other provisions of the contested measures, that can clearly not be separated from the provisions referred to in the referral to the Curtea Constituțională.’

8. Article 21(1) of Law No 554/2004 on administrative proceedings ( 10 ) states that ‘the forms of action provided for by the Code of Civil Procedure can be exercised against irrevocable and definitive decisions made by organs of administrative proceedings’.

9. Article 21(2) of Law No 554/2004 ( 11 ) provides that ‘in addition to those provided for by the Code of Civil Procedure, judgments that have become final and binding and that infringe the primacy of Community law governed by Article 148(2) read in combination with Article 20(2) of the Romanian Constitution, as amended, shall constitute grounds for revision’.

10. In accordance with Article 175(1) of the Romanian Code of Fiscal Procedure, ( 12 ) an objection can be brought against any tax claim and also against all fiscal administrative acts. Such objection being a means of internal administrative appeal does not preclude those harmed by a fiscal administrative act, or the absence of one, from having recourse to judicial proceedings in accordance with law. A decision taken by the competent authority because of an objection to a tax claim can according to Article 188(2) of the Code of Fiscal Procedure be attacked before a competent organ of administrative proceedings.

11. Ordonanţa de urgenţă a Guvernului (‘OUG’) No 50/2008 introduced a tax (termed a ‘pollution tax’) for motor vehicles in categories M1 to M3 and N1 to N3. ( 13 )

III – Facts, the main proceedings, the question referred and the proceedings before the Court

12. On 3 May 2007 Mr Târșia, the applicant in the main proceedings, purchased a car that had previously been registered in France. As mentioned above, registration in Romania was contingent at the time on the production of proof of payment of a special tax on motor vehicles. The motor vehicle was registered on 6 June 2007, after the applicant had paid on 5 June 2007 the sum of RON 6899.51 by way of special motor vehicle tax.

13. The applicant sought repayment of the tax before a civil court on the grounds that the tax levied was inconsistent with Article 90 EC [now Article 110 TFEU] inasmuch as it introduced a discriminatory fiscal measure of internal taxation on goods from other Member States that was far greater than taxes levied on similar goods and sold in the national market. By civil judgment No 6553/2007 of 13 December 2007 the Judecătoria Sibiu (Court of First Instance, Sibiu) granted the application and ordered the Romanian State to reimburse the tax.

14. However, the Romanian State brought an appeal against that judgment, which was upheld by civil Decision No 401/2008 of the Tribunalul Sibiu (District Court, Sibiu), which ordered the Romanian State to repay only part of the tax levied; namely the difference between that paid on 5 June 2007, in respect of the special motor vehicle tax, and the amount resulting from the application of OUG No 50/2008 and its pollution tax on motor vehicles. ( 14 )

15. On 29 September 2011 Mr Târșia sought revision of civil Decision No 401/2008 before the Tribunalul Sibiu, based on the provisions of Article 21(2) of Law No 554/2004, and the ruling of the Court of 7 April 2011 in the aforementioned case of Tatu (C‑402/09, EU:C:2011:219), where the Court held that Article 110 TFEU rendered a tax such as the pollution tax on motor vehicles put in place by OUG No 50/2008 incompatible with EU law. Mr Târșia argued that he was entitled to recovery of all the taxes paid due to the primacy of EU law and the findings of the Court in Tatu.

16. According to the order for reference it was not possible, at that stage of the proceedings, to challenge civil Decision No 401/2008 through the ordinary courts. There is no procedural remedy in civil procedure similar to Article 21(2) of Law No 554/2004 concerning final judgments that infringe the primacy of EU law. The Tribunalul Sibiu thus considered that it was obliged to refer the following question to the Court under Article 267 TFEU. ‘Can Articles 17, 20, 21 and 47 of the Charter of Fundamental Rights of the European Union, Article 6 of the Treaty on the European Union, Article 110 of the Treaty of the Functioning of the European Union, and the principle of legal certainty laid down in EU law and in the case-law of the Court of Justice, be interpreted as precluding a rule such as that found in Article 21(2) of Law No 554/2004 which allows for revision of national judicial decisions when there is an infringement of the principle of primacy of [European Union] law exclusively in administrative proceedings and which does not allow for revision of national judicial decisions...