Judgment;Summary — ECLI:EU:C:2023:715
Date: 2023-09-28
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-508/22 – 1 
Case C-508/22 
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:  
27 July 2022 
Referring court:  
Curtea de Apel Brașov (Romania) 
Date of decision to refer:  
22 June 2022 
Appellants:  
KL 
PO 
Respondent:  
Administrația Județeană a Finanțelor Publice Brașov 
  
Subject matter of the main proceedings 
Application for revision of a judgment brought by the appellant AX and continued 
by her heirs, KL and PO, against the judgment of the Curtea de Apel Brașov 
(Court of Appeal, Brașov) given on 5 April 2022. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 110 TFEU is sought pursuant to Article 267 TFEU. 
Questions referred for a preliminary ruling 
Can EU law (Article 110 TFEU) be interpreted as meaning that the amount of a 
tax prohibited under EU law is incorporated in the value of a vehicle and may be 
transferred to third-party purchasers along with the right of ownership over the 
vehicle? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-508/22 
 
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Does the interpretation of [Article] 110 TFEU preclude national rules, such as 
those laid down by Article 1 of OUG No 52/2017, under which a refund of a tax 
prohibited by EU law may be made only to the taxpayer who paid the tax and 
not – where the tax has not been refunded to the person who paid it – to 
subsequent purchasers of the vehicle in respect of which the tax was paid? 
Provisions of EU law and case-law relied on 
Article 110 TFEU 
Judgment of 7 April 2011, Tatu (C-402/09), paragraph 40  
Provisions of national law relied on 
Ordonanța de urgență a Guvernului nr. 52/2017 din 4 august 2017 privind 
restituirea sumelor reprezentând taxa specială pentru autoturisme și autovehicule, 
taxa pe poluare pentru autovehicule, taxa pentru emisiile poluante provenite de la 
autovehicule și timbrul de mediu pentru autovehicule (Decree-Law No 52 of 
4 August 2017, on the refund of amounts constituting the special tax on passenger 
cars and motor vehicles, the tax on pollution from motor vehicles, the tax on 
pollutant emissions from motor vehicles and the environmental vignette for motor 
vehicles; ‘OUG No 52/2017’), Article 1(1): 
‘Taxpayers who have paid the special tax on passenger cars and motor vehicles, 
laid down by Articles 2141 to 2143 of Law No 571/2003 on the tax code, as 
supplemented and amended, the tax on motor vehicle pollution, laid down by 
Decree-Law No 50/2008, establishing the tax on motor vehicle pollution, 
approved by Law No 140/2011, the motor vehicle pollutant emissions tax, laid 
down by Law No 9/2012, regulating the motor vehicle pollutant emissions tax, as 
subsequently amended, as well as the motor vehicle environmental vignette laid 
down by Decree Law No 9/2013 regulating the motor vehicle environmental 
vignette, approved with amendments and additions by Law No 37/2014, as 
subsequently amended and supplemented, and who have not benefited from 
reimbursement until the entry into force of this Decree-Law, may request the 
relevant reimbursement, including the interest accrued in the period from the date 
of collection to the date of reimbursement, by means of an application submitted 
to the competent central tax body. The interest rate is that provided for in 
Article 174(5) of Law No 207/2015 on the code of tax procedure, as subsequently 
amended and supplemented’. 
Succinct presentation of the facts and the main proceedings 
1 On 3 March 2008, SC Zilex Corn SRL purchased, under a lease purchase 
agreement, a Toyota vehicle manufactured in 2007. 
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2 For the registration of the vehicle, the leasing company BCR Leasing IFN SA paid 
to the Treasury the special tax in the amount of Romanian lei (RON) 5 359.86, 
plus RON 1 018.37 by way of VAT; the amount of that tax was later paid to the 
leasing company by SC Zilex Corn SRL. 
3 The right of ownership over the vehicle was transferred to SC Zaral SRL upon the 
vehicle’s registration in that company’s name on 12 November 2012, while AX 
acquired the right of ownership over the vehicle on 16 May 2016. 
4 By an application lodged with the Administrația Județeană a Finanțelor Publice 
Brașov (District Finance Administration, Brașov) on 28 August 2018, AX applied 
for the reimbursement of the special registration tax, in the amount of 
RON 6 378.23, which had been paid for the registration of the vehicle in question. 
5 By decision of 5 March 2019, AX’s application was rejected on the ground that it 
had been submitted by a person other than the one the tax had been levied from, 
and an appeal against the decision of 5 March was dismissed by decision of 
29 July 2019. 
6 By action lodged before the Tribunalul Brașov (Regional Court, Brașov) on 
7 February 2020, the applicants AX and YC sought with regard to the defendant, 
the Brașov District Finance Administration, the annulment of its decisions of 
5 March and 29 July 2019, and for that defendant to be ordered to adopt a decision 
to refund the tax plus the accrued interest, in accordance with the applicants’ 
request of 28 August 2018. 
7 By judgment of 23 December 2020, the Brașov Regional Court upheld the 
objection whereby the applicant YC lacked standing and, as regards AX, 
dismissed her action, finding that she was not entitled to the reimbursement 
because, according to the provisions of Article 1(1), (2) and (5) of OUG 
No 52/2017, such a right belonged solely to the person liable for the tax, and not 
to subsequent purchasers. 
8 AX lodged an appeal against that judgment before the Brașov Court of Appeal, 
arguing that it was incompatible with EU law. In support of her appeal, AX 
argued that, by virtue of paragraph 40 of the judgment of 7 April 2011, Tatu 
(C-402/09), the amount of the registration tax is incorporated in the value of the 
vehicle, since its market value includes the residual amount of the tax, calculated 
as a percentage of the initial value, based on the depreciation of that vehicle. 
9 On 5 April 2022, the Brașov Court of Appeal dismissed the appeal on the ground 
that AX had not proved that, on the date of SC Zaral SRL’s transfer of the 
ownership right over the vehicle, the right to claim the sum of RON 6 370.23 – 
which had been paid by SC Zilex Corn SRL by way of tax on pollutant 
emissions – had also been transferred. 
10 AX brought an application for revision of the final judgment of 5 April 2022, 
before the Brașov Court of Appeal – which is the referring court – requesting the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-508/22 
 
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amendment of the judgment appealed against, the re-examination of her appeal 
and, at the same time, the submission to the Court of Justice of a reference for a 
preliminary ruling. 
Principal arguments of the parties to the main proceedings 
11 AX argued that the dismissal of her appeal was decided in breach of the principle 
of the primacy of EU law and was based on an erroneous interpretation of 
Article 110 TFEU by the Brașov Court of Appeal, in breach of the Court of 
Justice’s case-law. She refers, in that respect, to the judgments Amministrazione 
delle Finanze dello Stato v. San Giorgio (199/82), and Comateb and Others v. 
Directeur général des douanes et droits indirects (C-192/95 to C-218/95). 
12 According to AX, national courts should determine whether the tax prohibited by 
EU law has been passed on, in its entirety or in part, by an enterprise to others. 
She argued that in paragraph 40 of the Court’s judgment in Case C-402/09, Tatu, 
the Court stated that, from the moment of the payment of a registration tax in a 
Member State, the amount of that tax is incorporated into the value of the vehicle 
and, consequently, the tax is subsequently transferred along with the right of 
ownership over the vehicle.  
13 The Brașov District Finance Administration opposed the referral to the Court. 
Succinct presentation of the reasons for the request for a preliminary ruling 
14 The Brașov Court of Appeal is dealing with the case as the court of final instance, 
in the context of the extraordinary appeal for revision of a judgment, brought 
under Article 21(1) of Law No 554/2004, which lays down that where judgments 
which have become final are given in breach of the principle of the primacy of EU 
law, this constitutes grounds for their revision. 
15 Examining the provisions of OUG No 52/2017, the referring court notes, first, 
that, according to that decree-law’s preamble, it was adopted following the 
judgments of 9 June 2016, Budișan (C-586/14, EU:C:2016:421), of 30 June 2016, 
Câmpean (C-200/14, EU:C:2016:494), and of 30 June 2016, Ciup (C-288/14, not 
published, EU:C:2016:495), in which the Court declared several pollution taxes 
introduced by Romania on motor vehicles to be incompatible with EU law, in 
particular Article 110 TFEU, therein including the tax at issue in the case at hand. 
16 Secondly, the referring court emphasises that the wording of Article 1 of OUG 
No 52/2017 reveals that the Romanian State has recognised the right to 
reimbursement of the tax only to the taxpayer who has actually paid it, while it is 
clear that, in the 11 years that elapsed between the introduction in 2006 of the first 
tax incompatible with EU law and the adoption in 2017 of OUG No 52/2017, the 
ownerships of vehicles have been transferred, with the result that they are no 
longer the property of the taxpayer who paid the tax, and that, unless the transfer 
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of the right of claim to the current user is recognised, the recovery of the tax is 
impossible to effect. 
17 By its nature, once paid, the tax in question is incorporated into the market value 
of the registered vehicle, a conclusion that follows from the Court’s ruling in the 
Tatu case (C-402/2009). In practice, at the time of sale, vehicles with the tax paid 
were priced higher than untaxed ones, with the result that the taxpayer who had 
paid the tax then collected it indirectly on the sale price. 
18 In the light also of the Court’s judgment in Cases C-192/95 to C-218/95, the 
referring court takes the view that the manner in which OUG No 52/2017 has 
governed the reimbursement procedure results in a limitation of the ability to 
obtain that reimbursement and, therefore, makes it impossible or excessively 
difficult to exercise the rights conferred by EU law. 
19 According to the Brașov Court of Appeal, such a conclusion is confirmed by 
recent legislative developments, in particular OUG No 93/2022, which, by 
repealing OUG No 52/2017, provides for a new refund procedure that includes the 
possibility of refunding the tax to the purchaser of a vehicle under a lease 
purchase agreement, although the tax had been paid by the leasing company.