Order — ECLI:EU:C:2019:397
Date: 2019-05-08
Language of the case: Romanian
Court formation: Seventh Chamber
Subject matter: Taxation;Value added tax;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-9/19 — 1 
Case C-9/19 
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: 
3 January 2019 
Referring court: 
Tribunalul Bucureşti (Regional Court, Bucharest, Romania) 
Date of the decision to refer: 
8 June 2018 
Applicant: 
SC Mitliv Exim SRL 
Defendants: 
Agenţia Naţională de Administrare Fiscală 
Direcţia Generală de Administrare a Marilor Contribuabili 
  
Subject matter of the main proceedings 
Administrative and tax law action whereby the applicant SC Mitliv Exim SRL 
(‘Mitliv’) claims that the Tribunalul Bucureşti (Regional Court, Bucharest) should 
order the defendants Agenţia Naţională de Administrare Fiscală (National Agency 
for Tax Administration) (‘ANAF’) and Direcţia Generală de Administrare a 
Marilor Contribuabili (Directorate-General for the administration of major 
taxpayers) to pay interest relating to interim payments made by Mitliv during the 
pre-trial investigation phase and made available to the tax authorities even before 
the beginning of the tax inspection following which additional tax liabilities were 
imposed on it 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation is sought, pursuant to Article 267 TFEU, of Article 273 TFEU, 
Article 50 of the Charter of Fundamental Rights of the European Union, Articles 2 
and 273 of Directive 2006/112/EC and the general principles of EU law, in 
particular the principle of non bis in idem 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-9/19 
 
2  
Questions referred 
1. Do Articles 2 and 273 of Council Directive 2006/[112] of 28 November 
2006 on the common system of value added tax, Article 50 of the Charter of 
Fundamental Rights of the European Union and Article 325 TFEU, in 
circumstances such as those in the main proceedings, preclude national 
legislation, such as that at issue in the main proceedings, which enables the 
following combination of events to take place: 
- the payment of criminal damages, imposed during the pre-trial 
investigation phase on the basis of something other than a tax claim; 
- the subsequent conducting of a tax inspection, in parallel with the criminal 
proceedings in which the accused taxpayer has been brought to trial to 
respond to a charge of tax evasion, which imposes on that taxpayer ancillary 
tax liabilities for both the period and the amount already made available to 
the State authorities during the pre-trial investigation phase, while the 
decision regarding the administrative complaint lodged against the 
administrative and tax measures issued at the time of the inspection has been 
stayed pending the final decision in the criminal proceedings; 
- the closing of the criminal proceedings at first instance with the accused 
being sentenced, inter alia, jointly to pay the entirety of the amount imposed 
during the pre-trial investigation phase as being owed by all the accused 
parties, although only a part of that amount, which has already been paid by 
the taxpayer concerned, has been ascribed to that taxpayer; and to what 
extent are all of those events, taken together, excessive with regard to that 
same taxpayer? 
2. In circumstances such as those in the main proceedings, is the State 
authorities’ approach of refusing to take into consideration, from a tax 
perspective, a payment made before the administrative and criminal 
penalties have become final, in circumstances where the payment covers 
part of the tax liability imposed on a taxpayer, even in order to guarantee the 
objective of collecting tax liabilities owed to the State and to combat fraud, 
compatible with the principles of EU law in general and with the principle of 
non bis in idem in particular? 
3. In the light of the answers to Questions [1] and [2] above, should EU law be 
interpreted as precluding national legislation, such as that at issue in the 
main proceedings, which does not regard as a levying of tax contrary to EU 
law ... a situation where a taxpayer pays criminal damages during the pre-
trial investigation phase in order to have the term of the penalty reduced by 
half, where there is no tax claim from the competent authority, or where no 
final decision has been handed down by a criminal court, but the tax 
authorities impose, at the time of the tax inspection, ancillary tax liabilities 
for both the period and the amount already made available to the State 
MITLIV 
 
3 
authorities, the fee being levied, without grounds, from the time of the 
payment until such time as the tax liabilities are imposed on the basis of 
either a tax claim or a final decision in criminal proceedings? 
Provisions of EU law relied on and case-law cited 
Article 325 TFEU 
Charter of Fundamental Rights of the European Union, Article 50 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Articles 2 and 273 
Judgment of 20 March 2018, Menci (C-524/15, EU:C:2018:197), paragraphs 44 to 
47, 53, 55, 56, 58 and 63 
Judgment of 26 February 2013, Åkerberg Fransson (C-617/10, EU:C:2013:105), 
paragraphs 25 to 27 
Judgment of the European Court of Human Rights of 15 November 2016, A and B 
v. Norway 
Provisions of national law relied on 
Legea nr. 241/2005 pentru prevenirea şi combaterea evaziunii fiscale (Law 
No 241/2005 on preventing and combating tax evasion), Article 9(1)(c), pursuant 
to which the recording, in accounting records or other accounting documents, of 
expenses which are not based on genuine transactions or the recording of other 
fictitious transactions, if this is done in order to avoid fulfilling tax obligations, 
shall constitute tax evasion, and shall be punishable by a term of imprisonment of 
2 to 8 years and by the loss of certain rights, and Article 10(1), pursuant to which, 
where the offence of tax evasion has been committed, the term of the penalty 
prescribed by law for the criminal act committed shall be reduced by half if, 
during the pre-trial investigation or during the trial itself, before the final hearing, 
the accused covers the civil party’s claims in their entirety 
Succinct presentation of the facts and the main proceedings 
1 On 10 June 2013 the Direcţia de Investigare a Infracţiunilor de Criminalitate 
Organizată şi Terorism — Serviciul teritorial Craiova (Directorate for 
Investigating Organised Crime and Terrorism — Craiova Regional Office, 
Romania) initiated a pre-trial investigation against several companies, including 
Mitliv, for committing the offence of tax evasion as laid down in Article 9(1)(c) of 
Legea nr. 241/2005. A report on the findings and an accounting expert’s report, 
items of evidence gathered during the pre-trial investigation, revealed damage 
amounting to RON 9 238 577, RON 3 527 305 of which was ascribed to the 
applicant, representing the tax liability relating to the period from 1 January 2011 
to 21 September 2012. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-9/19 
 
4  
2 On 28 October 2014 ANAF entered an appearance as a civil party in the criminal 
proceedings in respect of the amounts referred to in paragraph 1 above, regarded 
as damage caused to the State. 
3 Between 12 December 2014 and 29 September 2015, in order to have the term of 
the penalty prescribed by law reduced by half pursuant to Article 10(1) of Legea 
nr. 241/2005, Mitliv paid, in 5 consecutive instalments, the entirety of the amount 
of RON 3 527 305 provisionally ascribed to it. Before the final payment, made on 
29 September 2015, Mitliv was brought to trial as an accused party. 
4 On 8 December 2017 Mitliv was sentenced by the Curtea de Apel Craiova (Court 
of Appeal, Craiova, Romania), which applied a principal penalty of a fine of RON 
80 000 and an additional penalty consisting in a ban on participating in public 
procurement procedures for a period of 2 years. At the same time, the court upheld 
the civil action proposed by the Romanian State via ANAF, ordering the accused 
companies, including Mitliv, jointly to pay an amount of RON 9 238 577 in civil 
damages, while noting that Mitliv had made four payments by way of ‘partial 
interim payments’ amounting to RON 2 500 000. The court also maintained the 
measure preventively seizing Mitliv’s stock of goods up to the value of RON 
9 238 577 and ordered the accused parties to pay the costs. 
5 In parallel with the criminal proceedings, Mitliv was subjected to a tax inspection 
during the period from 21 October 2015 to 22 February 2016, the object of which 
was to investigate the company from the perspective of VAT and corporation tax 
for the period from 1 January 2010 to 30 June 2015. 
6 Following that inspection, on 25 February 2016 the tax authorities issued a tax 
inspection report and a tax assessment notice whereby they imposed on the 
applicant, as the principal tax liability, additional corporation tax in the amount of 
RON 2 351 535 and additional VAT in the amount of RON 3 718 357. 
7 In addition, ancillary liabilities were imposed, calculated from 25 October 2010, 
the due date of the principal claims, until 25 January 2016; RON 942 836 as 
interest and RON 357 576 as default interest, both amounts relating to the 
additional corporate tax imposed, and RON 1 560 395 as interest and RON 
551 459 as default interest, both of those amounts relating to the additional VAT 
imposed. 
8 Ancillary tax liabilities were also calculated for the period during which the 
amount of RON 3 527 305 ascribed to Mitliv was paid towards the damage 
pursuant to Article 10(1) of Legea nr. 241/2005. 
9 The applicant requested that the amount of RON 3 527 305 already paid towards 
the damage during the pre-trial investigation phase be put towards payment of the 
amount representing the additional VAT imposed by the decision of 25 February 
2016. The offsetting thus requested was carried out on 9 March 2016. 
MITLIV 
 
5 
10 Mitliv lodged a complaint with the Administraţia Fiscală Gorj (Gorj Tax 
Authority, Romania) in respect of a total amount of RON 9 438 138, representing 
the corporate tax and the interest and default interest relating thereto and the value 
added tax and the interest and default interest relating thereto. On 27 July 2016 the 
complaint was rejected as unfounded in respect of an amount of RON 289 424 and 
suspended as to the remainder. 
11 Mitliv’s action against the decision regarding the complaint was upheld by the 
Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) in respect of the 
amount of RON 289 424 and dismissed as to the remainder. 
12 Subsequently, on 28 October 2016, Mitliv requested the Direcţia Generală de 
Administrare a Marilor Contribuabili to pay an amount of RON 696 640 in respect 
of the interest relating to the period from December 2014 to December 2015 for 
the amount of RON 3 527 305 paid during the pre-trial investigation. 
13 Mitliv has brought an action before the referring court against the tax authorities’ 
refusal to grant that request, claiming that those authorities should be ordered to 
pay it interest in the amount of RON 696 940 for the interim payments made 
during the pre-trial investigation phase and which were made available to those 
authorities even before the beginning of the tax inspection carried out in respect of 
that company. 
Essential arguments of the parties to the main proceedings 
14 The applicant Mitliv submits that, in order both to demonstrate its good faith and 
to limit the calculation of potential interest or penalties, and in order to have the 
term of the penalty reduced by half pursuant to Article 10(1) of Legea nr. 
241/2005, it made available to the State (tax and criminal) authorities the amount 
of RON 3 527 305, when there was no claim whatsoever, and that this was done 
already during the pre-trial investigation phase. 
15 Mitliv maintains that the measures imposed on it are excessive, considering that it 
has also been ordered to pay ancillary liabilities in respect of the amount 
previously made available to the State authorities, the measures ordered by the 
conviction being added to the measures taken following the tax inspection. 
16 Mitliv notes that Article 4 of Protocol No 7 to the [European Convention on 
Human Rights] does not exclude two sets of proceedings being conducted, so long 
as certain requirements are met. In particular, it must be convincingly shown that 
there is a sufficiently close connection between those two sets of proceedings in 
terms of time and subject matter. Accordingly, not only must the aims pursued 
and the means used to achieve those aims be, in essence, complementary and 
temporally linked, but also the potential consequences of the way in which the 
legal treatment of the facts under investigation is organised must be proportionate 
and foreseeable for the persons concerned. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-9/19 
 
6  
17 According to the applicant, the material factors for determining whether there is a 
sufficiently close connection as regards the substance include the following: (i) 
whether the proceedings pursue complementary aims and thus deal with different 
aspects of the facts of the case; (ii) whether the duality of the proceedings is a 
foreseeable consequence, both in law and in fact; (iii) whether both sets of 
proceedings are conducted in such a way as to avoid, as far as possible, any 
overlap in the gathering and assessment of the evidence, in particular whether the 
interaction between the different competent authorities sufficient to establish the 
facts in the first set of proceedings is also used in the second set of proceedings; 
and (iv) whether the penalty imposed in the proceedings which become final first 
is taken into consideration in the proceedings which become final subsequently, so 
as to prevent the person concerned from being excessively penalised. 
18 Making reference to A and B v. Norway, Mitliv notes that the European Court of 
Human Rights considered the fact that, when handing down the conviction against 
the applicants, the national court had taken into consideration the fact that they 
had already been penalised, through the imposition of an additional fee, while the 
cumulative imposition of penalties relating to two sets of proceedings was 
foreseeable for the applicants, was of particular importance. 
19 Mitliv has had penalties, both criminal and administrative, imposed on it in 
respect of the same facts, without the amount of RON 3 527 305 which was paid 
already during the pre-trial investigation phase and which covered the tax damage 
represented by the obligation to pay VAT being taken into consideration at the 
time those penalties were imposed. 
20 Making reference to the judgment of the Court [of Justice] of 20 March 2018, 
Menci, [C-524/15,] in particular paragraphs 44 to 47, 53, 55, 56, 58 and 63 
thereof, Mitliv submits that, in addition to laying down cumulative conditions 
which national legislation permitting the duplication of criminal proceedings and 
penalties must satisfy, the Court has also held that the State authorities must apply 
the legislation in such a way that it does not result in an excessive penalty for the 
person concerned. 
21 However, unlike in Menci, in addition to national legislation permitting excessive 
measures to be combined in respect of the same taxpayer and the same facts, the 
State authorities have also, by their conduct, supported and applied such an 
excessive mechanism, an eloquent example being the imposition of ancillary 
liabilities in respect of sums of money already made available to the State, for the 
entirety of the period from the date of payment until the date of the offsetting 
transaction. 
22 In addition, the legislation at issue in the main proceedings does not provide for 
any possibility of suspending the administrative penalty during the criminal 
investigation, as was the case for the Italian legislation applicable in Menci. 
Succinct presentation of the reasons for the reference 
MITLIV 
 
7 
23 For the reasons set out in the preceding section, the referring court considers it 
necessary to make a reference to the Court for a preliminary ruling.