Information;Order — ECLI:EU:C:2021:510
Date: 2021-06-22
Language of the case: Romanian
Court formation: Seventh Chamber
Subject matter: Budget;Financial provisions;Taxation;Value added tax;Own resources;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-81/20 — 1 
Case C-81/20 
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: 
12 February 2020 
Referring court: 
Tribunalul București (Romania) 
Date of the decision to refer: 
19 December 2019 
Applicant: 
SC Mitliv Exim SRL 
Defendants: 
Agenția Națională de Administrare Fiscală 
Direcția Generală de Administrare a Marilor Contribuabili 
  
Subject matter of the main proceedings 
Action by which the company Mitliv Exim SRL asks the Tribunalul București 
(Regional Court, Bucharest, Romania) to order the defendants, the Agenția 
Națională de Administrare Fiscală (National Tax Administration Office) (‘the 
ANAF’) and the Direcția Generală de Administrare a Marilor Contribuabili 
(Directorate-General for Large-scale Taxpayers) (‘the DGAMC’), to pay interest 
on sums paid by the applicant which, according to the applicant, were not due. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation is sought, pursuant to Article 267 TFEU, of Articles 2 and 273 of 
Directive 2006/112/EC, Article 325 TFEU and Article 50 of the Charter of 
Fundamental Rights of the European Union. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-81/20 
 
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Questions referred 
(1) Do Articles 2 and 273 of Council Directive 2006/112 of 28 November 
20[0]6 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 permits the adoption or 
implementation of sanctioning measures in relation to a taxpayer who is a legal 
person, in both administrative and criminal proceedings which are conducted in 
parallel in relation to that taxpayer, for the same specific acts of tax evasion, in a 
situation where the penalty applied in the administrative proceedings may also be 
classified as a criminal penalty, in accordance with the criteria identified by the 
Court of Justice of the European Union in its case-law, and to what extent are all 
of those events, taken together, excessive with regard to the taxpayer concerned? 
(2) In the light of the answer to Question 1, should EU law be interpreted as 
precluding national legislation, such as that at issue in the main proceedings, 
which permits a State, through its tax authorities, to disregard, in administrative 
proceedings, in respect of the same specific acts of tax evasion, the sum already 
paid by way of criminal damages which at the same time also constitutes the sum 
covering the tax loss, thereby making that amount unavailable for a certain period, 
in order subsequently also to establish in respect of that taxpayer, in the 
administrative proceedings, ancillary tax obligations in respect of the debt which 
has already been cleared? 
Provisions of EU law and case-law relied on 
Article 325 TFEU 
Article 50 of the Charter of Fundamental Rights of the European Union 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Article 2(1) and Article 273. 
Judgment of the Court of Justice of 20 March 2018, Menci (C-524/15), 
paragraphs 44 to 63; judgment of the Court of 26 February 2013, Åkerberg 
Fransson (C-617/10), paragraphs 25 to 27 and 37; judgment of the Court of 
5 June 2012, Bonda (C-489/10), paragraphs 37 to 44; judgment of the Court of 
6 September 2011, Lady & Kid and Others (C-398/09), paragraph 17; and 
judgment of the Court of 18 April 2013, Irimie (C-565/11), paragraphs 26 and 27 
Judgment of the European Court of Human Rights of 15 November 2016, A and B 
v. Norway, paragraph 130, in which the ECtHR stated that it is necessary to show 
that the dual proceedings (administrative and criminal) have been linked so that 
they may be integrated into a coherent whole, considering that this implies not 
only that the purposes pursued and the means used to achieve them should in 
essence be complementary and linked in time, but also that the possible 
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consequences of organising the legal treatment of the conduct concerned in such a 
manner should be proportionate and foreseeable for the persons affected. 
Provisions of national law relied on 
Legea nr. 241/2005 pentru prevenirea și 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, 
constitutes tax evasion, and is punishable by a term of imprisonment of two to 
eight 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 is to 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. 
Legea nr. 207/2015 privind Codul de procedură fiscală (Law No 207/2015 
establishing the Code of Fiscal Procedure), as subsequently amended and 
supplemented 
– Article 168(1) and (2), pursuant to which any amount paid and not due is to 
be refunded, at the request of the taxpayer; 
– Article 178, which provides that, in the case of tax claims extinguished by 
offsetting, the interest and periodic penalty payments are, if necessary, to be 
calculated up to the date laid down in Article 167(4); 
– Article 182, which provides that, in respect of the amounts which must be 
refunded or reimbursed from the State budget, the taxpayer is to be entitled to 
interest until the refund obligation is extinguished and that, in the case of a 
taxpayer having claims arising from the annulment of a fiscal administrative act, 
the taxpayer is to be entitled to interest from the day on which the tax claim was 
extinguished until the date of the refund or offsetting of the taxpayer’s claim 
arising from the annulment of the fiscal administrative act; such interest is not to 
be granted where the taxpayer has asked to be awarded compensation for damage 
on the conditions laid down in Article 18 of Legea nr. 554/2004 a contenciosului 
administrativ (Law No 554/2004 on administrative proceedings) or in the case 
provided for in Article 107(5) of the Codul de procedură fiscală (Code of Fiscal 
Procedure); 
– Article 277(1)(a), which provides for the suspension of the administrative 
complaints procedure where the authority which carried out the inspection activity 
has referred the matter to the judicial authorities as regards the existence of 
indications of an offence which, if established, would affect the outcome of the 
administrative proceedings; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-81/20 
 
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– Articles 352 and 353, pursuant to which administrative proceedings initiated 
before 1 January 2016 remain subject to the previous legislation. 
Ordinul președintelui Agenției Naționale de Administrare Fiscală nr. 2047/2016 
(Decree No 2047/2016 of the President of the National Tax Administration 
Office) approving the procedure for the distribution or repayment to accounts 
from budgetary revenue accounts [of amounts] corresponding to the amounts 
collected in Account 50.86.09 ‘Balance of the sums collected which constitute 
damage caused and recovered under Article 10 of Legea nr. 241/2005’ (Decree 
No 2047/2016) 
Succinct presentation of the facts and the main proceedings 
1 The applicant was subjected to a pre-trial investigation relating to VAT fraud 
offences in connection with a file compiled by the Direcția de Investigare a 
Infracțiunilor de Criminalitate Organizată și Terorism — Serviciul territorial 
Craiova (Directorate for Investigating Organised Crime and Terrorism — Craiova 
Territorial Department) ( ‘the DIICOT’). 
2 After initiating the pre-trial investigation with reference to the offence set out in 
Article 9(1)(c) of Legea nr. 241/2005, the public prosecutor’s office ordered that 
scientific and technical surveys be carried out by inspectors from the DIICOT and 
the expert opinion of an accountant be obtained, which revealed tax obligations 
totalling 9 238 577 Romanian lei (‘RON’), RON 3 527 305 of which was 
attributable to the company MITLIV EXIM SRL for the period from 1 November 
2011 to 21 September 2012, on account of the non-recognition of the right to 
deduct VAT on purchases of goods from the supply company, which for its part 
had purchased them from a Cypriot company. 
3 After the ANAF joined the proceedings as a civil party on 28 October 2014 in 
respect of those amounts, which constituted damage caused to the State budget, 
the applicant paid, between 12 December 2014 and 29 September 2015, by five 
payment orders, an amount of RON 3 527 305, established in respect of it on an 
interim basis in the file compiled by the DIICOT, in order to benefit from Article 
10(1) of Legea nr. 241/2005. 
4 In the period running from 21 October 2015 to 22 February 2016, the applicant 
was subjected to a tax inspection concerning VAT and income tax for the period 
from 1 January 2010 to 30 June 2015, which concluded with the issuing of a tax 
assessment dated 25 February 2016 and a tax inspection report of the same date, 
both of which established tax obligations in respect of the applicant consisting of 
additional income tax (RON 2 351 535), additional VAT (RON 3 718 357), 
interest on the additional income tax (RON 942 836), periodic penalty payments 
in relation to the additional income tax (RON 357 576), interest on the additional 
VAT (RON 1 560 395) and default interest on the additional VAT (RON 551 
459). 
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5 Following the request submitted by the applicant on 7 March 2016, the tax 
authorities offset, on 9 March 2016, the amount of RON 3 527 305, paid in the 
course of the pre-trial investigation, against the obligations established by the tax 
inspection authorities. 
6 The applicant lodged an administrative complaint against the tax assessment and 
the tax inspection report on 31 March 2016; the authority competent to decide on 
that complaint ordered that the procedure be suspended in respect of the amount 
of RON 9 148 714, pursuant to Articles 277 and 279 of the Codul de procedură 
fiscală, and that the complaint be dismissed as unfounded in respect of the amount 
of RON 289 424. 
7 The action brought by the applicant before the Curtea de Apel Craiova (Court of 
Appeal, Craiova, Romania) against the inspection report, the tax assessment and 
the decision on the complaint was upheld in part, in respect of the amount of RON 
289 424, and dismissed as to the remainder. That decision has been challenged by 
means of an appeal currently pending before the Înalta Curțe de Casație și Justiție 
(High Court of Cassation and Justice, Romania). 
8 By an application submitted to the DGAMC on 28 October 2016, the applicant 
requested payment of interest in relation to the amount of RON 3 527 305 paid in 
the course of the pre-trial investigation and offset pursuant to Article 167 of the 
Codul de procedură fiscală. That application was dismissed as unfounded on the 
ground that the sum paid was used to extinguish the obligations established in the 
tax assessment of 25 February 2016. 
9 On 8 December 2017 the applicant was found guilty of a criminal offence by the 
Curtea de Apel Craiova and ordered to pay, jointly and severally, the amount of 
RON 9 238 577 as compensation for the civil damage caused to the Romanian 
State, with the ancillary tax obligations owed, pursuant to the Codul de procedură 
fiscală, from the time they became due until the date of their payment in full, the 
payments made by the applicant being assessed and the preservation order on the 
stocks of goods up to the amount of RON 9 238 577 being maintained. 
10 In parallel with the proceedings currently pending before the Înalta Curte de 
Casație și Justiție and in light of the refusal by the competent tax authorities of the 
application for payment of interest, on 16 February 2017 the applicant brought an 
action before the referring court, claiming that it should order the competent tax 
authority to pay interest in the amount of RON 696 940 for the interim payments 
made. 
The essential arguments of the parties to the main proceedings 
11 The applicant argues that the tax authorities established ancillary tax obligations 
also in respect of the amount paid in the course of the pre-trial investigation, even 
though the amount was available to the State, and the criminal court gave a 
judgment by which it ordered payment, jointly and severally, of the entirety of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-81/20 
 
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damage caused to the State, even though the amount established in respect of the 
applicant had already been made available to the State authorities’ account. 
12 The applicant company requests payment of interest on the sums paid to cover, for 
the purpose of reducing the penalty, the criminal damage, which it considers to be 
the same as the tax loss. 
13 It considers that the payment made in the course of the pre-trial investigation 
cannot only give rise to the possibility of being taken into consideration in the 
criminal proceedings, by reducing the term of the penalty by half, without also 
producing effects in terms of tax. Since both sets of proceedings concern the same 
VAT owed to the Romanian State, arising from the same specific acts (of tax 
evasion, as imputed to the [applicant] company), that VAT has, in practice, been 
levied twice, together with the related ancillary obligations. 
Succinct presentation of the reasons for the reference 
14 The Tribunalul București notes that what is at issue is the possibility of two 
separate sets of proceedings, one administrative and one criminal, being 
conducted against the applicant in respect of the same specific acts of tax evasion, 
where the payment made in the course of the criminal investigation is not 
recognised either in terms of tax or the civil aspect of the criminal proceedings. 
15 Thus, it is apparent from the tax assessment of 25 February 2016 and the tax 
investigation report of the same date that the ancillary obligations relating to the 
additional VAT were calculated from the due date, 25 October 2010, until 25 
January 2016, also including the period from December 2014 to September 2015, 
in which the applicant made a payment in the amount of RON 3 527 305, which 
was available to the State authorities throughout that period. 
16 The applicant has expressly stated that the above payment was made both for the 
purpose of reducing the penalty and to interrupt the period of the interest and the 
default interest, an aspect which, however, the tax authorities did not take into 
consideration during the tax inspection, establishing interest and default interest in 
respect of the applicant also for the period during which it paid, in advance, the 
amount constituting the additional VAT. 
17 Given that the tax inspection covered entirely the period during which the criminal 
investigation was carried out, the overlapping of the periods forming the subject 
matter of the two sets of proceedings, that is to say the period from 1 November 
2011 to 21 September 2012, is relevant to the main proceedings as the applicant 
has requested interest only on the undue payment of VAT corresponding to that 
period. 
18 In each of the two sets of proceedings (the criminal proceedings and the tax 
proceedings), damage has been established in respect of the evasion of payment of 
VAT to the State budget, which is based on the same specific acts carried out by 
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the applicant; the criminal damage amounting to RON 3 527 305 and the tax loss 
amounting to RON 3 718 357 (additional VAT to which the ancillary obligations 
are added). 
19 The referring court raises the issue of the possible excessive nature of some of the 
penalties applied to the taxpayer in two respects, criminal and tax, and in this 
context recalls the case-law of the Court of Justice and the European Court of 
Human Rights referred to above, according to which national legislation which 
authorises duplication of proceedings and penalties must satisfy a number of 
conditions in order to be permissible. 
20 In the view of the referring court, if the amount is considered to be owed already 
from the period during which the criminal investigation was initiated, the fiscal 
administrative acts issued during the tax inspection should not have included the 
ancillary obligations relating to that amount, since the latter was available to the 
defendant institutions, whilst if the amount is considered to be owed from the time 
that the fiscal administrative acts were issued during the tax inspection, the 
applicant would have been entitled to interest and default interest relating to the 
period from December 2014 to September 2015, during which the amount was 
available to the State authorities, as it was levied in the absence of a tax claim or a 
final judgment.