Opinion of the Advocate General — ECLI:EU:C:2016:99
Date: 2016-02-18
Language of the case: Romanian
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

summary, I propose that the following answer be given to the questions referred for a preliminary ruling: (1) The principle of the effectiveness of the protection of taxpayers’ rights under EU law must be interpreted as precluding provisions of national law which provide for: – payment by annual instalments spread over five years of a refund of tax levied in breach of EU law and the interest payable in that respect, and also a restriction to the amount of those instalments of the possibility of offsetting the amounts payable to the taxpayer in that respect against other tax liabilities of the taxpayer; – a requirement for the taxpayer to obtain a judicial decision declaring his right to a refund of tax levied in breach of EU law, where the unlawfulness of the tax is undoubtedly clear from the case-law of the Court; – a restriction of the amount of funds assigned for the refund of tax to the amounts allocated for that purpose in the budget of the relevant budget entity; – a restriction of the possibility of the taxpayer initiating an enforcement procedure where the State unjustifiably delays refund of the tax, or the possibility of carrying out enforcement solely on the amounts assigned in the budget for refund of the tax. (2) The principle of the effectiveness of the protection of taxpayers’ rights under EU law must be interpreted as not precluding provisions of national law which provide for: – the refund of tax levied in breach of EU law at the request of the taxpayer concerned and the obligation to attach to that request documents certifying the identity of the applicant and his right to refund of the tax; – no possibility of initiating enforcement by the taxpayer before the procedure for refunding tax levied in breach of EU law has been completed, provided that that procedure satisfies the requirements of equivalence and effectiveness. Interpretation of the provisions of the Charter 53. In accordance with Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. As the Court’s settled case-law on the interpretation of that provision of the Charter states, the fundamental rights guaranteed by EU law — and therefore above all the rights referred to in the Charter — must be complied with where national legislation falls within the scope of EU law. The fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law. (20) 54. The provisions of Romanian law under examination in the present cases lay down the rules on refunding tax declared inconsistent with EU law and therefore serve to protect rights under that law. Consequently, they undoubtedly fall within its scope and thus within the scope of the Charter. 55. However, I consider that the interpretation, set out above, of the principles of equivalence and effectiveness provides a sufficient basis for the referring courts to declare some provisions of Romanian law concerning the refund of tax levied on the registration of vehicles incompatible with EU law. In that respect the provisions of the Charter do have a bearing on the interpretation of the principle of effectiveness in the context of exercising rights under EU law before national authorities. None the less, an independent analysis of the provisions of Romanian law in the light of the Charter is not necessary as a consequence of the foregoing. 56. Should the Court find, however, contrary to my proposal, that the provisions of Romanian law are not inconsistent with those principles, it would be necessary to analyse them in the light of the provisions of the Charter referred to in the questions. That analysis would have to take account of any reasons which may militate in favour of a declaration that the provisions of Romanian law are consistent with EU law, in particular with the principle of effectiveness (it is primarily for the national courts to analyse their compatibility with the principle of equivalence). I, however, can see no such reasons, and am therefore unable to make that assessment. Conclusion 57. In the light of the foregoing considerations, I propose that the Court give the following answer to the questions referred for a preliminary ruling by the Tribunalul Sibiu and the Tribunalul Timiş: (1) The principle of equivalence in the defence of rights under EU law and rights under national law precludes the application in Member States’ national law of rules on refunding tax declared incompatible with EU law which are less favourable than the rules on refunding tax levied in breach of national law. It is for the national courts to make that assessment. (2) The principle of the effectiveness of the protection of taxpayers’ rights under EU law must be interpreted as precluding provisions of national law which provide for: – payment by annual instalments spread over five years of a refund of tax levied in breach of EU law and the interest payable in that respect, and also a restriction to the amount of those instalments the possibility of offsetting the amounts payable to the taxpayer in that respect against other tax liabilities of the taxpayer; – a requirement for the taxpayer to obtain a judicial decision declaring his right to a refund of tax levied in breach of EU law, where the unlawfulness of the tax is undoubtedly clear from the case-law of the Court; – a restriction of the amount of funds assigned for the refund of tax to the amounts allocated for that purpose in the budget of the relevant budget entity; – a restriction of the possibility of the taxpayer initiating an enforcement procedure where the State unjustifiably delays refund of the tax, or the possibility of carrying out enforcement solely on the amounts assigned in the budget for refund of the tax. (3) The principle of the effectiveness of the protection of taxpayers’ rights under EU law must be interpreted as not precluding provisions of national law which provide for: – the refund of tax levied in breach of EU law at the request of the taxpayer concerned and the obligation to attach to that request documents certifying the identity of the applicant and his right to refund of the tax; – no possibility of initiating enforcement by the taxpayer before the procedure for refunding tax levied in breach of EU law has been completed, provided that that procedure satisfies the requirements of equivalence and effectiveness. 1 – Original language: Polish. 2 – See judgments in Tatu (C‑402/09, EU:C:2011:219), Nisipeanu (C‑263/10, EU:C:2011:466), Manea (C‑76/14, EU:C:2015:216) and a number of orders concerning this matter. 3 – See judgments in Irimie (C‑565/11, EU:C:2013:250), Nicula (C‑331/13, EU:C:2014:2285) and Târșia (C‑69/14, EU:C:2015:662). 4 – See inter alia the judgment in Târșia (C‑69/14, EU:C:2015:662, paragraph 24). 5 – Ordinul nr. 365/741/2014 privind aprobarea Procedurii de efectuare a plăţilor sumelor prevăzute prin hotărâri judecătoreşti având ca obiect restituirea taxei pe poluare pentru autovehicule şi a taxei pentru emisiile poluante provenite de la autovehicule şi a modelului şi conţinutului unor formulare şi pentru modificarea anexei nr. 4 la Ordinul ministrului mediului şi schimbărilor climatice şi al viceprim-ministrului, ministrul finanţelor publice, nr. 490/407/2013 pentru aprobarea Procedurii de restituire a sumelor prevăzute la art. 7, 9 şi 12 din Ordonanţa de urgenţă a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, precum şi a sumelor stabilite de instanţele de judecată prin hotărâri definitive şi irevocabile. 6 – Order in Câmpean and Ciocoiu (C‑97/13 and C‑214/13, EU:C:2014:229). 7 – Judgment in Nicula (C‑331/13, EU:C:2014:2285, paragraphs 27 and 28 and the case-law cited). 8 – Unlike the referring court in Case C‑288/14, the referring court in Case C‑200/14 did not, in its questions, refer to those principles as the subject-matter of the interpretation sought. However, it did mention the principle of refunding taxes levied in breach of EU law in which compliance with the principles of equivalence and effectiveness is inherent (see, inter alia, judgment in Târșia, C‑69/14, EU:C:2015:662, paragraphs 26 and 27). Therefore, the considerations on those two principles also apply to Case C‑200/14. 9 – That is to say, Recommendation Rec (2003)16 of the Committee of Ministers of the Council of Europe, Resolution 1787 (2011) of the Parliamentary Assembly of the Council of Europe and Recommendation No R (80)2 of the Committee of Ministers (see questions referred in Case C‑200/14). 10 – Judgment in Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27 and the case-law cited). 11 – Order in Câmpean and Ciocoiu (C‑97/13 and C‑214/13, EU:C:2014:229). 12 – That is to say, in particular, the judgments in Tatu (C‑402/09, EU:C:2011:219) and Nisipeanu (C‑263/10, EU:C:2011:466). 13 – Judgment in Weber’s Wine World and Others (C‑147/01, EU:C:2003:533, paragraph 86). 14 – See judgment in Deville (240/87, EU:C:1988:349, paragraphs 12 and 13). 15 – See, inter alia, judgments in Rewe-Zentralfinanz and Rewe-Zentral (33/76, EU:C:1976:188, paragraph 5); Littlewoods Retail and Others (C‑591/10, EU:C:2012:478, paragraph 27); and Târșia (C‑69/14, EU:C:2015:662, paragraph 27). 16 – Judgment in Littlewoods Retail and Others (C‑591/10, EU:C:2012:478, paragraph 31) (emphasis added). 17 – Ibid. 18 – See inter alia judgments in Les Fils de Jules Bianco and Girard (331/85, 376/85 and 378/85, EU:C:1988:97, paragraph 12); Metallgesellschaft and Others (C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 85); and Târșia (C‑69/14, EU:C:2015:662, paragraph 27). 19 – See inter alia judgments in Metallgesellschaft and Others (C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 87); Littlewoods Retail and Others (C‑591/10, EU:C:2012:478, paragraphs 25 and 29); and Irimie (C‑565/11, EU:C:2013:250, paragraphs 21 and 26). 20 – Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 19 and 21).