Vasile Budișan v Administrația Județeană a Finanțelor Publice Cluj.
Date: 2016-06-09
19


It must be pointed out that the aim of Article 110 TFEU is to ensure free movement of goods between Member States in normal conditions of competition. It is intended to eliminate all forms of protection which may result from the application of internal taxation which discriminates against products from other Member States (judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 28 and the case-law cited).
24


In that respect, it is settled case-law that second-hand vehicles imported from other Member States, which constitute ‘products of other Member States’ within the meaning of Article 110 TFEU, are vehicles placed on the market in Member States other than the Member State concerned and can, in the case of purchase by a resident of that latter Member State, be imported and placed in circulation in that Member State, while similar domestic vehicles, which constitute ‘domestic products’, within the meaning of Article 110 TFEU, are second-hand motor vehicles of the same type, characteristics and wear which are placed on the market in that Member State (judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 31 and the case-law cited).
25


Consequently, it is unnecessary to examine the neutrality required by Article 110 TFEU by taking into account the motor vehicles circulating in Romania which are not placed on the market. By reason of the fact that they have not been offered for sale, those vehicles are not in competition with other vehicles, be they those available on the domestic market or those available on the market of other Member States (judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 32).
26


In the application of Article 110 TFEU, and in particular in the comparison of the taxes applicable to imported second-hand cars with those applicable to second-hand cars which are already on the national territory, it is necessary to have regard not only to the rate of tax concerned, namely the environmental stamp duty, but also to the basis of assessment and the detailed rules for levying the tax in question (judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 33 and the case-law cited).
27


Moreover, a Member State may not charge tax on imported second-hand motor vehicles based on a value which is higher than the real value of the vehicle, with the result that they are taxed more heavily than similar second-hand cars on the domestic market. Therefore, in order to avoid discriminatory taxation, the actual depreciation of second-hand vehicles should be taken into account (judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 34 and the case-law cited).
28


Taking this into account need not necessarily involve an assessment or inspection of every vehicle. To avoid the burden inherent in such a system, a Member State might be able to establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle’s age, kilometrage, general condition, method of propulsion, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value (see judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 35 and the case-law cited).
30


Subject to verification by the referring court, it is therefore apparent that OUG No 9/2013 ensures that the environmental stamp duty is reduced in accordance with a reasonable approximation of the actual value of the vehicle (see, by analogy, judgment of 7 April 2011 in Tatu, C‑402/09, EU:C:2011:219, paragraph 44, and 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 38).
36


Similarly, the special tax must be regarded as incompatible with Article 110 TFEU, since it presented identical characteristics to those of OUG No 50/2008, which are incompatible with that article (see, to that effect, judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 45). The tax on polluting emissions levied pursuant to Law No 9/2012, in the version applicable from 1 January 2013 to 15 March 2013, is also incompatible with Article 110 TFEU due to its detailed rules for levying that tax and due to the fact, inter alia, of having been levied only on second-hand domestic vehicles for which no taxes on the registration of vehicles previously in force in Romania had been paid (see, to that effect, judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraphs 47 to 50).
37


The Court has already held that a tax regime under which second-hand vehicles which were subject to such taxes which are incompatible with EU law will be exempt from a fresh tax — in the present case, the environmental stamp duty — is incompatible with Article 110 TFEU (see, to that effect, judgment in 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 47 to 51).
38


According to the Court’s settled case-law, the amount of the tax levied at the time of registration of a motor vehicle is incorporated into the value of that vehicle. In the case where a vehicle is registered following payment of a tax in a Member State and that vehicle is subsequently sold as a second-hand vehicle in that Member State, its market value includes the residual amount of that tax. If the amount of tax levied, on the date of registration, on an imported second-hand vehicle of the same type, characteristics and wear exceeds that residual tax amount, there will be a breach of Article 110 TFEU (judgment of 19 December 2013 in X, C‑437/12, EU:C:2013:857, paragraphs 30 and 31 and the case-law cited).
39


However, a tax which is incompatible with EU law, such as those mentioned in paragraph 35 above, must be repaid with interest (see, to that effect, judgments of 18 April 2013 in Irimie, C‑565/11, EU:C:2013:250, paragraphs 20 and 21, and 15 October 2014 in Nicula, C‑331/13, EU:C:2014:2285, paragraphs 27 and 28) and its amount must therefore no longer be considered as being incorporated into the market value of the vehicles on which that tax is levied. Since the residual amount of the tax in the value of those vehicles is equal to zero, that amount is thus necessarily lower than the new tax, in this case the environmental stamp duty, levied on imported second-hand vehicles of the same type, characteristics and wear (see, to that effect, judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 50).
45


In accordance with settled case-law, the interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, gives to a rule of EU law clarifies and, where necessary, defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the date of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the delivery of the judgment ruling on the request for interpretation, provided that in other respects the conditions under which an action relating to the application of that rule may be brought before the courts having jurisdiction are satisfied (see judgments of 2 February 1988 in Blaizot and Others, 24/86, EU:C:1988:43, paragraph 27; 10 January 2006 in Skov and Bilka, C‑402/03, EU:C:2006:6, paragraph 50; and of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 53).
46


Consequently, it is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the European Union legal order, be moved to restrict the opportunity to rely on a provision which it has interpreted. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith, and that there should be a risk of serious difficulties (judgments of 10 January 2006 in Skov and Bilka, C‑402/03, EU:C:2006:6, paragraph 51, and of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 54).
47


In addition, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought (judgment of 6 March 2007 in Meilicke and Others, C‑292/04, EU:C:2007:132, paragraph 36 and the case-law cited).
50


The Court has implicitly or explicitly refused to limit the temporal effects both in judgments in which such taxes were declared incompatible with EU law (with regard to the pollution tax laid down by OUG No 50/2008, see judgments of 7 April 2011 in Tatu, C‑402/09, EU:C:2011:219, and of 7 July 2011 in Nisipeanu, C‑263/10, not published, EU:C:2011:466 paragraphs 34 to 38; with regard to the tax on polluting emissions levied pursuant to Law No 9/2012, in its various versions, see order of 3 February 2014 in Câmpean and Ciocoiu, C‑97/13 and C‑214/13, not published, EU:C:2014:229, paragraphs 37 to 42, and judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraphs 56 to 59) and in those judgments in which it is indicated that such taxes should have been repaid with interest (see judgments of 18 April 2013 in Irimie, C‑565/11, EU:C:2013:250, and of 15 October 2014 in Nicula, C‑331/13, EU:C:2014:2285, paragraphs 40 to 42).