Ilie Nicolae Nicula v Administraţia Finanţelor Publice a Municipiului Sibiu and Administraţia Fondului pentru Mediu.

• Jurisdiction: European Union
• Celex Number: 62013CC0331
• ECLI: ECLI:EU:C:2014:332
• Docket Number: C-331/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 15 May 2014

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 15 May 2014 ( 1 )

Case C‑331/13

Ilie Nicolae Nicula

v

Administraţia Finanţelor Publice a Municipiului Sibiu,

Administraţia Fondului pentru Mediu

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

‛Repayment of a tax incompatible with EU law — Restriction on the amount of the repayment owing to a change in national legislation’

I – Introduction

1. This case is one of a long list of Romanian cases concerning the compatibility with Article 110 TFEU of the motor vehicle pollution tax. ( 2 ) In particular, it raises the question whether the Romanian tax authorities are entitled to retain, as a new tax of the same nature and object, called ‘environmental stamp duty’, the sum which had been levied as pollution tax incompatible with EU law.

II – Legal framework

A – EU law

2. Article 110 TFEU provides: ‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

3. In the judgment in Tatu (EU:C:2011:219), the Court interpreted that article ‘as precluding a Member State from introducing a pollution tax levied on motor vehicles on their first registration in that Member State if that tax is arranged in such a way that it discourages the placing in circulation in that Member State of second-hand vehicles purchased in other Member States without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market’. ( 3 )

B – Romanian law

4. Article 4 of Government Emergency Order No 9/2013 introducing an environmental stamp duty (‘OUG No 9/2013’) provides: ‘The obligation to pay the [environmental] stamp duty arises only once: (a) on the registration with the competent authority of the acquisition of ownership of a vehicle by its first owner in Romania and upon the issue of a registration certificate and registration number; (b) on the return of a motor vehicle to the national stock of motor vehicles where, at the time of its removal from the national stock of motor vehicles, the residual amount of the environmental stamp duty was returned to the owner; (c) on the registered transfer of ownership of a second-hand motor vehicle in respect of which the special tax for passenger cars and motor vehicles, the pollution tax on motor vehicles or the tax on pollutant emissions from motor vehicles has not been paid in accordance with the legislation in force at the time of the vehicle’s registration; (d) on the registered transfer of ownership of a second-hand vehicle in respect of which a court has ordered a [tax] repayment or has permitted its registration without payment of the special tax for passenger cars and motor vehicles, of the [pollution tax], or of the tax on pollutant emissions from motor vehicles.’

5. Article 12(1) of that order provides: ‘Where the special tax for passenger cars and motor vehicles, the pollution tax on motor vehicles or the tax on pollutant emissions from motor vehicles paid is greater than the stamp duty resulting from the application of the present provisions on environmental stamp duty, calculated in [Romanian lei (RON)] at the exchange rate applicable at the time of registration or registered transfer of ownership of a used motor vehicle, a sum equal to the difference may be repaid to the person having the obligation to pay in accordance with the procedure laid down in the implementing regulations for the present emergency order. The calculation of the difference to be reimbursed shall be made on the basis of the calculation formula laid down in this emergency order using information relating to the date of registration or registered transfer of ownership of the second-hand vehicle.’

III – The main proceedings and the question referred for a preliminary ruling

6. Government Emergency Order No 50/2008 introducing the pollution tax on motor vehicles (‘OUG No 50/2008’), which came into force on 1 July 2008, imposed a pollution tax on vehicles in categories M1 to M3 and N1 to N3. The obligation to pay that tax arose inter alia on the first registration of a motor vehicle in Romania, and the tax was thus levied on imported second-hand vehicles.

7. The Court has declared that a tax such as that pollution tax was contrary to Article 110 TFEU on the ground that it ‘[had] the effect of discouraging the import and placing in circulation in Romania of second-hand vehicles purchased in other Member States’. ( 4 ) For the same reason, the Court has held that the same applied to a tax such as the pollution tax introduced by Law No 9/2012, ( 5 ) which, on 13 January 2012, had repealed OUG No 50/2008, before being repealed itself on 15 March 2013 by OUG No 9/2013.

8. During the course of 2009, Mr Nicula purchased a BMW 320i motor car registered for the first time in another Member State of the European Union, namely Germany. In order to register the vehicle in Romania, he paid the sum of RON 5153 (approximately EUR 1 200) in respect of the pollution tax provided for by OUG No 50/2008.

9. Mr Nicula lodged a claim for repayment of that sum with the Romanian tax authorities and, after they had rejected his claim, he brought an action before the Romanian courts.

10. By administrative judgment No 1497/CA/2012, the Tribunalul Sibiu (Regional Court, Sibiu) (Romania) upheld the action brought by Mr Nicula against the Agentia Fondului pentru Mediu (Investment Fund Office) (the recipient of the tax), ordered that defendant to refund the tax after finding, on the basis of the judgment in Tatu, that the pollution tax was incompatible with Article 110 TFEU, and dismissed the action brought against the Administraţia Finanţelor Publice Sibiu (State Finance Administration, Sibiu) (the collector of the tax).

11. On 25 January 2013, following the appeal brought against that judgment, the Curtea de Apel de Alba-Iulia (Court of Appeal, Alba-Iulia) quashed that judgment and referred the case back to the court of first instance for it to give a fresh ruling, observing, for the purposes of that new ruling, that, in disputes of this kind, the persons against whom proceedings for repayment of a tax levied in breach of EU law may be brought include not only the recipient of the tax but also the collector of the tax.

12. After the case had been re-entered on the roll at the Tribunalul Sibiu, OUG No 9/2013 introducing the environmental stamp duty entered into force on 15 March 2013.

13. In the applicant’s specific case, the environmental stamp duty in respect of his motor vehicle resulting from the application of OUG No 9/2013 amounted to RON 8126,44, while the pollution tax previously paid was RON 5153.

14. Therefore, by virtue of Article 12(1) of OUG No 9/2013, Mr Nicula is no longer entitled to recover the pollution tax and the interest thereon, since the amount he had paid will be retained by the tax and environmental authorities as environmental stamp duty, because the amount of environmental stamp duty was greater than the pollution tax he had paid.

15. Accordingly, the Tribunalul Sibiu decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘Are the provisions of Article 6 of the Treaty on European Union, Articles 17, 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 110 TFEU, the principle of legal certainty and the principle prohibiting reformation in peius, both affirmed in [European Union] law and the case-law of the Court of Justice ([judgments in] Belgocodex, C‑381/97, EU:C:1998:589 and Belbouab, 10/78 EU:C:1978:181), to be interpreted as precluding legislation such as [OUG] No 9/2013?’

IV – Procedure before the Court of Justice

16. The request for a preliminary ruling was lodged at the Court on 18 June 2013. Written observations were submitted by Mr Nicula, the Romanian Government and by the European Commission.

17. By its letter of 20 December 2013, the Romanian Government requested that the case be assigned to the Grand Chamber. In accordance with the third paragraph of Article 16 of its Statute, the Court granted that request. At the hearing, the Romanian Government justified that request by the need to ensure the consistency of the case‑law relating to the taxation of imported second-hand vehicles.

18. Pursuant to Article 101 of its Rules of Procedure, on 14 February 2014 the Court requested the national court to provide, by 5 March 2014 at the latest, clarification concerning the applicability of OUG No 9/2013 to the main proceedings. The national court’s reply reached the Court on 4 March 2014.

19. A hearing was held on 25 March 2014, at which Mr Nicula, the Romanian Government and the Commission presented oral argument.

V – Analysis

A – Admissibility

20. The Romanian Government considers that this reference for a preliminary ruling is inadmissible because a reply to the question raised by the national court is not necessary for reaching a decision in the main proceedings. According to the Romanian Government, OUG No 9/2013 does not apply to the main proceedings for two reasons.

21. In the first place, the Romanian Government...