Opinion of the Advocate General — ECLI:EU:C:2023:848
Date: 2023-11-09
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-387/22 – 1 
Case C-387/22 
Request for a preliminary ruling 
Date lodged: 
10 June 2022 
Referring court: 
Tribunalul Satu Mare (Romania) 
Date of the decision to refer: 
2 June 2022 
Applicant: 
Nord Vest Pro Sani Pro SRL 
Defendants: 
Administrația Județeană a Finanțelor Publice Satu Mare 
Direcția Generală Regională a Finanțelor Publice Cluj-Napoca 
  
… 
TRIBUNALUL SATU MARE 
SECȚIA A II-A CIVILĂ, DE CONTENCIOS ADMINISTRATIV ȘI FISCAL 
(Regional Court, Satu Mare, Second Civil Chamber for Administrative and Tax 
Matters) 
… 
DECISION 
delivered following the public hearing on 2 June 2022 
… 
In the administrative tax appeal brought by the applicant, NORD VEST PRO 
SANI PRO SRL …, against the defendants ADMINISTRAȚIA JUDEȚEANĂ A 
FINANȚELOR PUBLICE SATU MARE (Regional Directorate of Public 
Finances of Satu Mare) … and DIRECȚIA GENERALĂ REGIONALĂ A 
FINANȚELOR PUBLICE CLUJ-NAPOCA SERVICIUL SOLUȚIONARE 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 6. 2022 – CASE C-387/22 
 
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CONTESTAȚII 2 (Regional Directorate-General of Public Finances of Cluj-
Napoca, Complaints Office 2) …, challenging administrative fiscal acts. 
… 
[procedural matters governed by national law] 
Subject matter of the proceedings ‒ appeal against administrative fiscal acts: 
‒ Partial annulment of tax assessment notice no F/SM 178/10.05.2021 and of 
report of tax inspection no F/SM 167/10.05.2021, issued by the Regional 
Directorate-General of Public Finances of Cluj-Napoca, Regional Directorate of 
Public Finances of Satu Mare. 
‒ Annulment of Decision No 338 of 18 October 2021, ruling on the 
administrative complaint, issued by Complaints Office 2 of the Regional 
Directorate-General of Public Finances of Cluj-Napoca. 
THE TRIBUNALUL, 
pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
makes the following 
REQUEST FOR A PRELIMINARY RULING 
A. FACTS  
… 
[the applicant’s request, reformulated by the referring court in the operative part] 
In accordance with Article 94 of the Rules of Procedure of the Court of Justice of 
the European Union, this court states the following: 
Facts 
A. The tax authorities carried out a tax inspection of the applicant company, as 
a result of which a tax assessment notice was issued, concerning the principal tax 
liabilities relating to the differences in the bases of assessment established in the 
course of the tax inspection of legal persons no F-SM 178/10.05.2021 … 
Following the drafting of tax inspection report no F/SM 167/10.05.2021, it was 
stated that, ‘in the case of employees providing services in Germany and Austria, 
the company is not entitled to the tax exemption, provided for by Article 60(5) of 
Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax 
Code, ‘the Tax Code’), relating to the tax on employment income, and that the 
applicable [rate] was 10%, in accordance with Article 78(2)(a) of the Tax Code, 
resulting in a discrepancy of 59 065 Romanian lei (RON). 
NORD VEST PRO SANI PRO 
 
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In addition, Order No 611/2019 of 31 January 2019 and Order 
No 2165/837/743/2019 of 10 May 2019 approving the format, content, methods of 
submission and processing of form 112, set out in Annex 6 – Instructions for 
completing Form 112 ‘Declaration relating to the obligations to pay social 
security contributions and income tax and the register of insured persons’, state 
that ‘The tax relief referred in in Article 60(5), Article 1381, Article 154(1)(r) and 
Article 2203(2) of the Tax Code shall not be granted in respect of employment 
income and analogous income earned by employees on secondment’. 
To that same effect, the defendant authorities held that, in respect of employees 
providing services in Germany and Austria, the company was not entitled to the 
exemptions provided for in Article 154(1)(r) of the Tax Code, and that the rate of 
health insurance contributions was 10%, in accordance with Article 156 of the 
Tax Code, resulting in a discrepancy of RON 194 882. 
With regard to the exemptions provided for in Article 1381(1) of the Tax Code, it 
was held that they did not apply to the applicant company and that the rate of 
social security contributions was therefore 25%, in accordance with Article 138(a) 
of the Tax Code, pursuant to which, ‘the rates of social security contributions shall 
be: (a) 25% for natural persons who are employees or who are under an obligation 
to pay social security contributions’. For that reason, a discrepancy of 
RON 77 959 was established. 
Lastly, the defendant authorities found that the company had wrongly applied the 
tax relief for the construction sector, in respect of employees who were working in 
Germany and Austria, having declared social security contributions for work 
payable by natural and legal persons carrying on business independently in the 
construction sector. In this connection, it was found that the company had 
correctly calculated the social security contributions for work, in the sum of 
RON 17 544, having applied the rate of 2.25% in accordance with Article 2203(1) 
of the Tax Code, in the case of the employees who had worked in Germany and 
Austria between 1 October 2019 and 28 February 2021, but, with regard to those 
employees, it had wrongly declared it as ‘tax relief in the construction sector’ in 
the account headed ‘Social security contributions for work payable by natural and 
legal persons having the status of employers and who operate in the construction 
sector’. 
In substance, all of these corrections were made because the defendant authorities 
were of the view that the explanatory memorandum to Ordonanța de urgenţă a 
Guvernului n.114/2018 (Government Emergency Order No 114/2018) indicated 
that the aim of enacting that legislation was to support the construction sector in 
Romania and that the legislature’s intention had therefore been to grant tax relief 
for construction work carried out within the national territory. 
REQUEST FOR A PRELIMINARY RULING OF 2. 6. 2022 – CASE C-387/22 
 
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Legal basis for establishing an administrative offence under national law 
B. In the context of the contentious administrative appeal, the legal basis of the 
tax decision is Article 60(5) of the Tax Code, in conjunction with Order 
No 611/2019 of 31 January 2019 and Order No 2165/837/743/2019 of 10 May 
2019 approving the format, content, methods of submission and processing of 
form 112, set out in Annex 6 – Instructions for completing Form 112. 
Article 60 – Exemptions 
5. Natural persons, in respect of employment income and analogous income as 
referred to in Article 76(1), (2) and (3), in the period between 1 January 2019 and 
31 December 2028 inclusive, provided that the following cumulative conditions 
are met: 
(a) Employers carry on activities in the construction sector which include: 
(i) Building activities as defined by CAEN code 41.42.43 ‒ section F ‒ 
Constructions; 
(ii) The fields of activity concerning the manufacturing of construction 
materials, defined by the following CAEN codes: 
2312 – The processing and trimming of flat glass; 
2331 – The manufacturing of ceramic tiles and plaques; 
2332 – The manufacturing of bricks, tiles and other building products made 
from burnt clay; 
2361 – The manufacturing of building products made from concrete; 
2362 – The manufacturing of building products made from gypsum; 
2363 – The manufacturing of concrete; 
2364 – The manufacturing of mortar; 
2369 – The manufacturing of other building products made from concrete, 
cement, and gypsum; 
2370 – The cutting, trimming and polishing of stone; 
2223 – The manufacturing of building materials made from plastic; 
1623 – The manufacturing of other carpentry and joinery products for 
construction; 
2512 – The manufacturing of metal doors and windows; 
NORD VEST PRO SANI PRO 
 
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2511 – The manufacturing of metal constructions and component parts of 
metal constructions; 
0811 – The extraction of ornamental and building stone, the extraction of 
calcareous stone, gypsum, chalk, and of slate; 
0812 – The extraction of sand and gravel; 
2351 – The manufacturing of cement; 
2352 – The manufacturing of lime and plaster; 
2399 – The manufacturing of other products made from non-metallic 
minerals (otherwise unclassified); 
(iii) 711– Architecture, engineering, and technical consultancy services; 
(b) Employers achieve a turnover from the activities referred to in point (a) and 
other activities specific to the construction sector of at least 80% of total turnover. 
For newly established companies, that is, companies registered in the commercial 
register as from January 2019, the turnover is calculated cumulatively from the 
beginning of the year, including the month in which the exemption applies, and 
for companies existing on 1 January of each year, the cumulative turnover for the 
previous tax year is taken as the basis for calculation. For companies in existence 
on 1 January of each year which had a cumulative turnover from the activities 
referred to in point (a) above of 80% or more in the previous tax year inclusive, 
the tax relief shall be granted for the whole of the current year, and for companies 
in existence on the same date which do not achieve this minimum turnover limit 
the principle of newly established companies shall apply. This turnover is 
achieved on a contract or order basis and covers labour, materials, machinery, 
transport, equipment, fixtures and fittings and other ancillary activities necessary 
for the activities referred to in (a). Turnover shall include production carried out 
and not invoiced. 
(c) The gross monthly income from employment and analogous income, as 
referred to in Article 76(1), (2) and (3), earned by the natural persons to whom the 
exemption applies shall be calculated on the basis of a gross employment income 
for 8 working hours per day of at least RON 3 000 per month. The exemption 
shall apply to the amounts of gross monthly income from employment and 
analogous income, as referred to in Article 76(1), (2) and (3), earned by the 
natural persons, up to a maximum of RON 30 000. Any such gross monthly 
income exceeding RON 30 000 shall not benefit from tax relief. 
(d) The exemption shall apply in accordance with the instructions set out in a 
Joint Order of the Minister for Public Finances, the Minister for Employment 
Social Justice and the Minister for Health referred to in Article 147(17), and the 
Declaration relating to the obligations to pay social security contributions and 
REQUEST FOR A PRELIMINARY RULING OF 2. 6. 2022 – CASE C-387/22 
 
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income tax and the register of insured persons shall constitute a sworn statement 
of compliance with the conditions for applying the exemption. 
(e) The method of calculation of the turnover referred to in point (b), for the 
purposes of applying the tax relief, shall be determined by Order of the President 
of the National Committee on Strategy and Planning, and shall be published on 
that body’s website. 
Order No 611/2019 of the Minister for Finance, Annex 6, point 8 
‘The tax relief referred in in Article 60(5), Article 1381, Article 154(1)(r) and 
Article 2203(2) of the Tax Code shall not be granted in respect of employment 
income and analogous income earned by employees on secondment.’ 
Order No 2165/837/743/2019 of the Minister for Finance, approving the 
format, content, methods of submission and processing of form 112, 
‘Declaration relating to the obligations to pay social security contributions 
and income tax and the register of insured persons’, Annex 6, point 8 
‘The tax relief referred in in Article 60(5), Article 1381, Article 154(1)(r) and 
Article 2203(2) of the Tax Code shall not be granted in respect of employment 
income and analogous income earned by employees on secondment.’ 
[EU] law apparently applicable in the present case 
In the opinion of this court, the application of [EU] law takes precedence and the 
claim against the applicant company is based on the provisions of Articles 26 and 
56 TFEU and, in particular, on Directive 2006/123/EC … on services in the 
internal market, which refers to Article 26 TFEU. 
Article 26 TFEU (formerly Article 14 of the Treaty establishing the European 
Community) 
1. The Union shall adopt measures with the aim of establishing or ensuring the 
functioning of the internal market, in accordance with the relevant provisions of 
the Treaties. 
2. The internal market shall comprise an area without internal frontiers in 
which the free movement of goods, persons, services and capital is ensured in 
accordance with the provisions of the Treaties. 
3. The Council, on a proposal from the Commission, shall determine the 
guidelines and conditions necessary to ensure balanced progress in all the sectors 
concerned. 
Article 56 TFEU (formerly Article 49 of the Treaty establishing the European 
Community) 
NORD VEST PRO SANI PRO 
 
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Within the framework of the provisions set out below, restrictions on freedom to 
provide services within the Union shall be prohibited in respect of nationals of 
Member States who are established in a Member State other than that of the 
person for whom the services are intended. 
The European Parliament and the Council, acting in accordance with the ordinary 
legislative procedure, may extend the provisions of the Chapter to nationals of a 
third country who provide services and who are established within the Union. 
Directive 2006/123/EC … on services in the internal market 
Article 20, Non-discrimination 
1. Member States shall ensure that the recipient is not made subject to 
discriminatory requirements based on his nationality or place of residence. 
2. Member States shall ensure that the general conditions of access to a service, 
which are made available to the public at large by the provider, do not contain 
discriminatory provisions relating to the nationality or place of residence of the 
recipient, but without precluding the possibility of providing for differences in the 
conditions of access where those differences are directly justified by objective 
criteria. 
In light of the facts set out above and the applicable legislation, it is obvious that, 
under Romanian legislation, Romanian companies which conduct business in 
Romania are treated differently …, from a tax … perspective, from those which 
conduct business in other Member States, such as [the applicant company], which 
has provided services mainly in Austria and Germany and does not benefit from 
the tax exemptions enjoyed by other companies in the construction sector that 
conduct their businesses in Romania. 
The approach taken in the relevant Romanian legislation runs counter to one of 
the principal objectives of the European Union, the creation of an internal market, 
since any company that carries on business outside Romania bears a far heavier 
tax burden than companies that carry on business in Romania, and the fiscal 
policy which discourages companies in the construction sector from providing 
services outside Romania constitutes, in practice, a major obstacle to the creation 
of a common … market. 
D. CONCLUSION 
Consequently, the national court considers that, in the light of Article 267 TFEU, 
it must refer the following question to the Court of Justice for a preliminary 
ruling: 
… 
REQUEST FOR A PRELIMINARY RULING OF 2. 6. 2022 – CASE C-387/22 
 
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ON THOSE GROUNDS, 
IN ACCORDANCE WITH THE LAW, 
DECIDES 
That the request made by the applicant NORD VEST PRO SANI PRO SRL for a 
reference to be made to the Court of Justice of the European Union is granted. 
Pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
the following question is referred to the Court of Justice for a preliminary ruling: 
Are the abovementioned provisions of [EU] law to be interpreted as precluding 
or not precluding a legal situation such as that at issue in the present case, in 
which the Romanian legislature may treat differently, from a tax perspective, 
Romanian companies which conduct business on the territory of the Romanian 
State and those which conduct business on the territory of other Member States, 
with the result that the applicant company, which has provided services 
principally in Austria and Germany, does not benefit from the tax exemptions 
enjoyed by other companies in the construction sector that conduct their 
businesses in Romania? 
… 
… [procedure, signatures]