Mihai Manea v Instituția Prefectului județul Brașov - Serviciul Public Comunitar Regim de Permise de Conducere și Inmatriculare a Vehiculelor.
Date: 2015-04-14
28. 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, in particular those which discriminate against products from other Member States (see to that effect, judgments in Commission  v Denmark , C‑47/88, EU:C:1990:449, paragraph 9; Brzeziński , C‑313/05, EU:C:2007:33, paragraph 27; Kalinchev , C‑2/09, EU:C:2010:312, paragraph 37; and X , C‑437/12, EU:C:2013:857, paragraph 26).
29. To that end, the first paragraph of Article 110 TFEU prohibits all Member States from imposing on products of the other Member States internal taxation in excess of that imposed on similar domestic products. That Treaty provision seeks to guarantee the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products (see, to that effect, judgments in Commission  v Denmark , C‑47/88, EU:C:1990:449, paragraphs 8 and 9; Weigel , C‑387/01, EU:C:2004:256, paragraph 66; and X , C‑437/12, EU:C:2013:857, paragraph 29).
31. In this 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 vehicle of the same type, characteristics and wear which are placed on the market in that Member State (see, inter alia, judgments in Commission  v Denmark , C‑47/88, EU:C:1990:449, paragraph 17; Kalinchev , C‑2/09, EU:C:2010:312, paragraphs 32 and 40; and Tatu , C‑402/09, EU:C:2011:219, paragraph 55).
32. 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. As the Advocate General stated in point 16 of his Opinion, by reason of the fact that they have not been offered for sale, those vehicles are not in competition with other vehicles, whether those available on the domestic market or those available on the market of other Member States.
Neutrality of the tax from the point of view of competition between second-hand motor vehicles imported from other Member States and similar domestic vehicles already registered in the Member State concerned without payment of tax
33. 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 national territory, it is necessary to have regard not only to the rate of tax but also to the basis of assessment and the detailed rules for levying the tax in question (see, to that effect, judgments in Commission  v Denmark , C‑47/88, EU:C:1990:449, paragraph 18; Nunes Tadeu , C‑345/93, EU:C:1995:66, paragraph 12; and Commission  v Greece , C‑74/06, EU:C:2007:534, paragraph 27).
34. More specifically, 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 (judgments in Weigel , C‑387/01, EU:C:2004:256, paragraph 70, and Commission  v Greece , C‑74/06, EU:C:2007:534, paragraph 28).
35. Taking this into account need not necessarily involve an assessment or inspection of every vehicle. Avoiding 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 (judgments in Gomes Valente , C‑393/98, EU:C:2001:109, paragraph 24; Weigel , C‑387/01, EU:C:2004:256, paragraph 73; Commission  v Greece , C‑74/06, EU:C:2007:534, paragraph 29; and Tatu , C‑402/09, EU:C:2011:219, paragraph 41).
36. Those objective criteria for assessing the depreciation of motor vehicles have not been listed by the Court as being obligatory. They need not thus necessarily be applied cumulatively. However, the application of a scale based on a single criterion of depreciation, such as the age of the motor vehicle, does not guarantee that the scale will reflect the actual depreciation of those vehicles. In particular, given the failure to take account of the kilometrage, such a scale does not, as a general rule, lead to a reasonable approximation of the actual value of imported second-hand vehicles (judgments in Commission  v Greece , C‑74/06, EU:C:2007:534, paragraphs 37 to 43, and Tatu , C‑402/09, EU:C:2011:219, paragraph 42).
38. By introducing into the calculation of the tax the vehicle’s age and annual average kilometrage, and by adding to those criteria the option of taking into account, at non-excessive cost, the condition of the vehicle and its equipment by means of an inspection by the competent motor vehicle registration authority, legislation such as that at issue in the main proceedings ensures that the tax will be reduced in accordance with a reasonable approximation of the actual value of the vehicle (see, by analogy, judgment in Tatu , C‑402/09, EU:C:2011:219, paragraph 44).
39. This conclusion is borne out by the fact that, in the fixed scales set out in Annex 4 to Law No 9/2012, due account is taken of the circumstance that the annual depreciation in the value of motor vehicles is generally more than 5% and is not linear, particularly in the first years of circulation, in which it is much greater than subsequently (see, by analogy, judgment in Tatu , C‑402/09, EU:C:2011:219, paragraph 45).
40. Moreover, the Romanian legislature was entitled to take the view that the depreciation criteria relating to the condition of the vehicle and its equipment can be correctly applied only by having recourse to an individual inspection of that vehicle by an expert, and that, in order to prevent inspections from taking place too often and thereby imposing an administrative and financial burden on the system, the taxpayer should be required to bear the cost of the inspection (see, by analogy, judgment in Tatu , C‑402/09, EU:C:2011:219, paragraph 46).
45. It is unambiguously clear from the rulings in preliminary references delivered by the Court in the cases concerning the tax levied on the registration of second-hand motor vehicles in Romania pursuant to OUG No 50/2008 and the tax levied on the registration of second-hand motor vehicles in Romania pursuant to Law No 9/2012, as suspended in part by OUG No 1/2012, that those taxes were incompatible with Article 110 TFEU and must therefore, in principle, be reimbursed with interest (see, inter alia, judgments in Tatu, C‑402/09, EU:C:2011:219; Nisipeanu , C‑263/10, EU:C:2011:466; Irimie , C‑565/11, EU:C:2013:250; order in Câmpean and Ciocoiu , C‑97/13 and C‑214/13, EU:C:2014:229; and judgment in Nicula , C‑331/13, EU:C:2014:2285). As is apparent from points 2, 3 and 26 of the Opinion of the Advocate General, the special tax levied during the period from 1 January 2007 to 30 June 2008 had characteristics identical to those, incompatible with Article 110 TFEU, of OUG No 50/2008 and Law No 9/2012, as suspended in part by OUG No 1/2012.
47. In that regard, it must be observed, as the Advocate General states in point 28 of his Opinion, that the exemption from a new tax of those second-hand motor vehicles in respect of which a tax previously in force and subsequently declared incompatible with EU law has already been paid cannot replace the reimbursement, with interest, of that tax.
48. Furthermore, such an exemption had the effect of exempting from the payment of the tax in issue the first transfer, during the period of relevance to the case in the main proceedings, of the right of ownership of second-hand domestic motor vehicles registered in Romania between 1 January 2007 and 1 January 2013, whereas that tax had invariably been levied at the time of registration in Romania, during the same period as the case in the main proceedings, of similar vehicles imported from other Member States. An exemption such as that in issue in the main proceedings thus favours sales of domestic second-hand vehicles and discourages the importation of similar vehicles.
49. In addition, as the Court has repeatedly held, 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 registration tax. If the amount of registration tax levied on an imported second-hand vehicle of the same type, characteristics and wear exceeds that residual tax, there will be a breach of Article 110 TFEU. That difference in the tax burden is liable to favour the sale of domestic second-hand vehicles, thereby discouraging the importation of similar vehicles (judgment in X , C‑437/12, EU:C:2013:857, paragraphs 30 to 32 and the case-law cited).
50. As the amount of the tax levied at the time of registration of domestic second-hand motor vehicles must, in the present case, be reimbursed with interest in such a way that the situation existing prior to the levying of that amount is restored, that amount must, as the Advocate General observed in point 29 of his Opinion, no longer be considered to be incorporated into the value of those vehicles. Consequently, the residual amount of that tax, incorporated into the value of second-hand domestic vehicles registered between 1 January 2007 and 1 January 2013, is equal to zero and is therefore necessarily lower than the registration tax levied on imported second-hand vehicles of the same type, characteristics and wear. As is apparent from the case-law cited in the preceding paragraph, such a situation is incompatible with Article 110 TFEU.
51. In the light of all of the foregoing considerations, the answer to the questions referred is that Article 110 TFEU must be interpreted as:
– not precluding a Member State from introducing a tax on motor vehicles which is levied on imported second-hand vehicles at the time of their first registration in that Member State and on vehicles already registered in that Member State at the time of the first transfer, within that Member State, of the ownership of those vehicles;
– precluding that Member State from exempting from that tax vehicles already registered and in respect of which a tax previously in force but found to be incompatible with EU law has been paid.
The temporal effects of the judgment of the Court of Justice
53. 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 time 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, inter alia, judgments in Blaizot and Others , 24/86, EU:C:1988:43, paragraph 27; Skov and Bilka , C‑402/03, EU:C:2006:6, paragraph 50; and Brzeziński , C‑313/05, EU:C:2007:33, paragraph 55).
54. 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 in Skov and Bilka , C‑402/03, EU:C:2006:6, paragraph 51, and Kalinchev , C‑2/09, EU:C:2010:312, paragraph 50).
55. As regards the risk of serious difficulties, it must be recalled that the financial consequences which might ensue for a Member State from a judgment delivered by way of a preliminary ruling do not in themselves justify a limitation on the temporal effects of the ruling (see, inter alia, judgments in Bidar , C‑209/03, EU:C:2005:169, paragraph 68, and Brzeziński , C‑313/05, EU:C:2007:33, paragraph 58). It is for the Member State requesting such a limitation to present, before the Court, figures which establish that there is a risk of serious economic repercussions (judgments in Brzeziński , C‑313/05, EU:C:2007:33, paragraphs 59 and 60, and Kalinchev , C‑2/09, EU:C:2010:312, paragraphs 54 and 55).
56. As regards the economic repercussions which might result from an incompatibility with Article 110 TFEU of the tax regime established by Law No 9/2012 during the relevant period, the Romanian Government submitted an estimate indicating that the reimbursement with interest of the sums received pursuant to that law during that period would amount to RON (Romanian lei) 181 349 488.05. According to the Romanian Government, those economic repercussions must be considered to be serious in the light of Romania’s economic difficulties.
57. It must be held that the estimate submitted by the Romanian Government does not in itself allow the conclusion to be drawn that the Romanian economy faces the risk of being adversely affected in a serious manner by the repercussions of the present judgment. The condition relating to the existence of serious difficulties cannot, therefore, be considered to be satisfied.
58. In those circumstances, it is not necessary to determine whether the criterion relating to the good faith of those concerned is satisfied.
59. It follows from those considerations that it is not appropriate to limit the temporal effects of the present judgment.
Costs