Judgment;Summary — ECLI:EU:C:2020:466
Date: 2020-06-11
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary of the request for a preliminary ruling, pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 March 2019 
Referring court: 
Tribunalul București (Regional Court, Bucharest, Romania) 
Date of the decision to refer: 
18 January 2019 
Applicant: 
CHEP Equipment Pooling NV 
Defendants: 
Agenția Națională de Administrare Fiscală — Direcția Generală 
Regională a Finanțelor Publice București — Serviciul soluționare 
contestații 
Agenția Națională de Administrare Fiscală — Direcția Generală 
Regională a Finanțelor Publice București — Administrația fiscală 
pentru contribuabili nerezidenți 
  
Subject-matter of the main proceedings  
Administrative action seeking (i) the annulment of the decision of 11 October 
2016 issued by the Direcția Generală Regională a Finanțelor Publice București — 
Serviciul soluționare contestații (Regional Directorate-General for Public Finance 
of Bucharest — Complaints Office), which rejected as unfounded the tax-related 
complaint made by the applicant, (ii) the annulment of the decision of 14 April 
2016 on the refund of value added tax to taxable persons not established in 
Romania but established in another Member State of the European Union, issued 
by the Direcția Generală Regională a Finanțelor Publice București — 
Administrația fiscală pentru contribuabili nerezidenți (Regional Directorate-
General for Public Finance of Bucharest — Tax Authority for Non-resident 
Taxpayers), and (iii) the refund to the applicant of an amount of RON 185 822.23. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-242/19 
 
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Subject matter and legal basis for the request for a preliminary ruling 
An interpretation is requested, pursuant to Article 267 TFEU, of Articles 17 and 
214(1) of Directive 2006/112 and Articles 2(1) and 3 of Directive 2008/9. 
Questions referred 
(1) Does the transport of pallets from one Member State to another Member 
State, for the purposes of their subsequent rental in the latter Member State to a 
taxable person established and registered for VAT purposes in Romania, 
constitute a non-transfer in accordance with Article 17(2) of Directive 
[2006/112/EC]? 
(2) Irrespective of the answer to the first question, is the taxable person under 
Article 9(1) of Directive 2006/112/EC, who is not established in the Member State 
of refund but in the territory of another Member State, considered a taxable person 
under Article 2(1) of Directive 2008/9/EC, even where that person is registered 
for VAT purposes or would be required to be registered for VAT purposes in the 
Member State of refund? 
(3) In the light of the provisions of Directive 2008/9/EC, does the condition of 
not being registered for VAT purposes in the Member State of refund constitute a 
further condition to those laid down in Article 3 of Directive 2008/9/EC in order 
that a taxable person established in another Member State and not established in 
the Member State of refund may be entitled to a refund in a case such as the 
present? 
(4) Must Article 3 of Directive 2008/9/EC be interpreted as precluding a 
practice of a national administration of refusing to refund VAT on grounds of 
failure to satisfy a condition laid down exclusively in national law? 
Provisions of EU law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘Directive 2006/112’), Articles 17 and 214(1); 
Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for 
the refund of value added tax, provided for in Directive 2006/112/EC, to taxable 
persons not established in the Member State of refund but established in another 
Member State, Articles 2(1) and 3. 
Provisions of national law relied on 
Legea nr. 571 privind Codul fiscal (Law No 571 establishing the Tax Code; ‘the 
Tax Code’) of 22 December 2003: 
CHEP EQUIPMENT POOLING 
 
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Article 128 — ‘Supply of goods 
(1)  “Supply of goods” shall mean the transfer of the right to dispose of property 
as owner. 
... 
(9) Intra-Community supply is a supply of goods, within the meaning of 
paragraph (1), which are dispatched or transported from one Member State to 
another Member State by the supplier or person to whom the supply is made, or 
by another person on their behalf. 
(10) The transfer by a taxable person of goods forming part of his business from 
Romania to another Member State shall be treated as an intra-Community supply 
for consideration, except in cases provided for in paragraph (12) where there is no 
transfer. 
(11) In accordance with paragraph (10), “transfer” shall mean the dispatch or 
transport of movable tangible property by or on behalf of the taxable person, for 
the purposes of his business, from Romania to another Member State. 
(12) For the purposes of this Title, the dispatch or transport of goods from 
Romania to another Member State by or on behalf of the taxable person for the 
purposes of the following transactions shall not constitute a transfer: 
... 
(g) temporary use of the goods in question within the territory of the Member 
State of destination of the goods dispatched or transported, for the purposes of 
supplying services in the Member State of destination, by the taxable person 
established in Romania; 
(h) temporary use of the goods in question, for a period not exceeding 24 
months, within the territory of another Member State, provided that the 
importation into that State of the same goods from a third country, with a view to 
temporary use, is covered by the customs arrangements for temporary importation 
with full exemption from import duties. 
(13) If one of the conditions referred to in paragraph (12) is no longer satisfied, 
the dispatch or transportation of the goods in question shall be regarded as a 
transfer from Romania to another Member State. In those cases, the transfer shall 
be deemed to be carried out at the time when that condition ceases to be met’. 
Article 1301 — ‘Intra-Community acquisitions of goods 
... 
(2) The following transactions shall be treated as an intra-Community 
acquisition for consideration: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-242/19 
 
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(a)  the application in Romania, by a taxable person, for the purposes of his 
business, of goods transported or dispatched by the same taxable person or by 
another person, on his behalf, from the Member State in whose territory the goods 
were produced, extracted, purchased, acquired or imported by him, in the course 
of his business, if the transport or dispatch of those goods, had it been carried out 
from Romania to another Member State, would be regarded as a transfer of goods 
to another Member State under Article 128(10) and (11); …’. 
Article1472(1)(a) 
‘(a) A taxable person not established in Romania but established in another 
Member State, who is not registered and not required to be registered for VAT 
purposes in Romania, shall be eligible for a refund of value added tax paid on 
imports or acquisitions of goods/services carried out in Romania; …’. 
Article 153(5): 
‘A taxable person not established in Romania and not registered for VAT 
purposes in Romania, who intends to: 
(a) carry out an intra-Community acquisition of goods for which he is liable for 
the tax under Article 151; or 
(b) carry out an intra-Community supply of goods exempt from the tax,  
shall submit an application for registration for VAT purposes pursuant to this 
article, before carrying out the transactions’. 
Normele metodologice de aplicare a Codului fiscal (Provisions implementing the 
Tax Code), approved by Hotărârea de Guvern (Government Decree) No 44/2004 
(‘the implementing provisions’) 
Point 6(11): 
‘For the purposes of Article 128(10) of the Tax Code, a transfer is a transaction 
treated as an intra-Community supply for consideration of goods, with an 
obligation to comply with all the conditions and rules relating to intra-Community 
supplies, including those relating to exemption from tax. A feature of such a 
transaction is that at the time the goods are dispatched from one Member State to 
another Member State, this does not constitute a supply within the meaning of 
Article 128(1) of the Tax Code and, consequently, the same taxable person who 
declares the transfer in the Member State in which the transport of the goods 
begins shall also declare the ‘assimilated’ intra-Community acquisition in the 
Member State in which it takes place. Examples of transfers are: the transport to 
another Member State of goods imported into Romania by the person who carried 
out the import, in the absence of a transaction at the time of the dispatch; the 
transport/dispatch of tangible movable property from Romania to another Member 
State for the purpose of forming a stock to be sold in that Member State; the 
CHEP EQUIPMENT POOLING 
 
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transport of goods to another Member State for the purpose of incorporating those 
goods into movable or immovable property in that Member State where the person 
concerned provides services in that Member State; the transport/dispatch of 
tangible movable property from Romania to another State for repair and which, 
subsequently, does not return to Romania, in which case the original non-transfer 
becomes a transfer.’ 
Point 49(1): 
‘Under Article 1472(l)(a) of the Tax Code, any taxable person not established in 
Romania but established in another Member States shall be eligible for a refund of 
VAT paid on imports and acquisitions of goods/services carried out in Romania. 
The value added tax shall be refunded by Romania, provided that the taxable 
person meets the following conditions: 
(a) during the refund period he has not had in Romania the seat of his economic 
activity or a fixed establishment from which business transactions were effected 
or, if no such business or fixed establishment existed, his domicile or normal place 
of residence; 
(b) during the refund period he is not registered or required to be registered for 
VAT purposes in Romania under Article 153 of the Tax Code; 
(c) during the refund period he has not supplied any goods or services deemed 
to have been supplied in Romania, with the exception of the following 
transactions: 
1. the supply of transport services and services ancillary thereto, exempted 
pursuant to Article 143(1)(c) to (m) and Articles144(1)(c) and 1441 of the Tax 
Code; 
2. the supply of goods and services to a person liable for VAT under 
Article 150(2) to (6) of the Tax Code.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant CHE[P] Equipment Pooling NV (‘CHEP BE’) is a company 
established in Belgium which specialises in services relating to the rental of cargo 
pallets (‘pallets’) at European level. The European stock of pallets is sub-rented to 
the CHEP companies in each European country, including CHEP Pooling 
Services România SRL (‘CHEP România’), and those companies in turn rent the 
pallets to the final customers in the relevant country. To carry on this activity 
CHEP BE acquires new pallets in most European countries, including Romania, to 
meet local demand for pallets. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-242/19 
 
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2 In view of the applicant’s acquisitions of the pallets from a Romanian supplier 
from 1 October 2014 to 31 December 2014, the applicant requested that the 
Romanian tax authorities refund an amount of RON 185 822.23 by way of VAT. 
3 By decision of 14 April 2016 relating to the refund of VAT to taxable persons not 
resident in Romania who are established in another Member State of the European 
Union, the defendant Administrația fiscală pentru contribuabili nerezidenți (Tax 
Authority for Non-resident Taxpayers) refused the applicant’s request for a 
refund. That decision noted that the applicant rented to CHEP România not only 
pallets acquired from the Romanian supplier, but also other types of pallets 
acquired by the applicant and originating from other EU Member States and 
dispatched to Romania. It was found that the transport or dispatch of goods from 
one Member State to another Member State, without transfer of the right to 
dispose of the goods as owner, constitutes a transfer in the Member State in which 
the transport began and a transaction treated as an intra-Community acquisition in 
the Member State in which the transport of the goods terminated (in this case, 
Romania), in respect of which the applicant was required to be registered for VAT 
purposes in Romania under Article 153(5)(a) of the Tax Code. 
4 By decision of 11 October 2016, the Direcția Generală Regională a Finanțelor 
Publice București — Serviciul soluționare contestații (Regional Directorate-
General of Public Finance of Bucharest — Complaints Office) rejected the 
applicant’s complaint against the decision of 14 April 2016. 
5 The applicant brought an action before the referring court, seeking annulment of 
the two decisions referred to above and refund of an amount of RON 185 822.23 
by way of VAT. 
The essential arguments of the parties in the main proceedings 
6 The applicant claims to have a right to a refund of VAT under Directive 2008/9 
and that the ground stated by the defendant tax authorities to deny it that right — 
that is to say the fact that, under Article 1472(1)(a) of the Tax Code, it was 
required to be registered for VAT purposes in Romania — is a requirement which 
does not feature amongst those expressly laid down in that directive. It follows 
that that requirement, laid down in the Romanian Tax Code, is contrary to EU 
law. 
7 The applicant further claims that, in any event, it was not required to be registered 
for VAT purposes in Romania since the transactions relating to the dispatch in 
Romania of goods acquired from other EU Member States, which form the 
subject-matter of the contested decisions, do not constitute a transfer for VAT 
purposes but rather a non-transfer for the purposes of Article 128(2)(g) and (h) of 
the Tax Code and thus cannot even be regarded as ‘assimilated’ intra-Community 
acquisitions in Romania. 
CHEP EQUIPMENT POOLING 
 
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8 The defendants contend that it is abundantly clear from the documents attached 
to the request for a refund submitted by the applicant that the latter also rented to 
CHEP România goods acquired in other EU Member States and transported to 
Romania to be rented or sub-rented. The applicant has failed to show that those 
goods returned to the Member State from which they were originally dispatched 
or transported for the purposes of supplying services and, therefore, cannot claim 
that the transaction carried out does not constitute a transfer and is eligible for the 
exemption under Article 128(2)(g) and (h) of the Tax Code. 
Succinct presentation of the reasons for the request for a preliminary ruling 
9 It is necessary to ascertain whether the transport of pallets from one Member State 
to another Member State by a non-resident person, for the purposes of their 
subsequent rental in the latter Member State to a taxable person established and 
registered for VAT purposes in Romania, constitutes a non-transfer in accordance 
with Article 17(2) of Directive 2006/112. 
10 It is also necessary to ascertain whether the non-resident company is required to 
be registered for VAT purposes in Romania, given that it does not have the 
technical and human resources in Romania to carry out taxable transactions in that 
State, but merely provides services in respect of which the place of the transaction 
for VAT purposes is Romania. 
11 Even if the non-resident company were required to be registered for VAT 
purposes in Romania, the question arises as to whether the non-resident company 
is entitled to the VAT refund on the ground that Directive 2008/9 does not lay 
down such a condition. Since the requirement that the legal person not be 
registered for VAT purposes laid down in Article 1472(1)(a) of the Tax Code and 
Point 49(1) of the implementing provisions is an additional condition to those 
expressly laid down in Article 3 of Directive 2008/9, it would appear to be 
contrary to that directive.