Opinion of the Advocate General — ECLI:EU:C:2012:803
Date: 2012-12-13
Language of the case: Romanian
Based on: Treaty on European Union (1992)
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Third Chamber), 18 April 2013 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Legal classification of the action in the main proceedings (Art. 267 TFEU) 2. European Union law — Direct effect — National taxes incompatible with European Union law — Repayment — Procedures — Application of national law — Limits — Compliance with the principles of equivalence and effectiveness of European Union law — National system limiting interest to that accruing from the day following the date of the claim for repayment — Not permissible 1. It is not for the Court of Justice to assign a legal classification to the action brought by the applicant in the main proceedings. In the present case, it is for the applicant to specify the nature and basis of her action, subject to the supervision of the referring court. (see para. 19) 2. EU law must be interpreted as precluding a national system which limits the interest granted on repayment of a tax which was levied in breach of EU law to that accruing from the day following the date of the claim for repayment of that tax. In the absence of EU legislation, it is for the internal legal order of each Member State to lay down the conditions in which such interest must be paid, particularly the rate of that interest and its method of calculation, subject to compliance with the principles of equivalence and effectiveness. A national system which limits interest to that accruing from the day following the date of the claim for repayment of the tax unduly levied, does not meet the principle of effectiveness which requires, in a situation of repayment of a tax levied by a Member State in breach of EU law, that the national rules referring in particular to the calculation of interest which may be due should not lead to depriving the taxpayer of adequate compensation for the loss sustained through the undue payment of the tax. That loss depends, inter alia, on the duration of the unavailability of the sum unduly levied in breach of EU law and thus occurs, in principle, during the period between the date of the undue payment of the tax at issue and the date of repayment thereof. (see paras 23, 26- 29, operative part)