SC Petrotel-Lukoil SA and Maria Magdalena Georgescu v Ministerul Economiei and Others.
Date: 2018-03-01
17


The fact that a national court has, formally speaking, worded its request for a preliminary ruling by referring to certain provisions of EU law does not preclude the Court of Justice from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, in particular, judgments of 27 October 2009, ČEZ, C‑115/08, EU:C:2009:660, paragraph 81, and of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43).
21


Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect to a customs duty. By contrast, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 110 TFEU, which prohibits discriminatory internal taxation (see, to that effect, judgments of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraphs 51, 55 and 56, and of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 40 and 41).
23


In such a case, it may result in a discrimination against the exported products, since the tax burden on products marketed on the national market is neutralised by the advantages which it serves to finance, whereas that on exported products constitutes a net burden (see, to that effect, judgments of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 22, and of 8 June 2006, Koornstra, C‑517/04, EU:C:2006:375, paragraph 18).
24


In that regard, if the advantages stemming from the use of the revenue from a charge forming part of a general system of internal charges applying systematically to national products marketed on the national market and to products exported fully offset the burden borne by the national product marketed on the national market when it is placed on the market, that charge constitutes a charge having an effect equivalent to a customs duty, contrary to Articles 28 and 30 TFEU. On the other hand, if the advantages accruing to the national products processed and marketed on the national market from the use of the revenue generated by the charge offset only partially the burden borne by those products, such a charge will constitute a breach of the prohibition of discrimination laid down by Article 110 TFEU. In that situation, the charge levied on exported national products, which is legal in principle, will have to be prohibited to the extent to which it offsets that burden and reduced proportionally (see, to that effect, judgment of 8 June 2006, Koornstra, C‑517/04, EU:C:2006:375, paragraphs 19 and 20 and the case-law cited).
25


The criterion of whether the burden is offset, in order to be usefully and correctly applied, presupposes a check, during a reference period, on the financial equivalence of the total amounts levied on domestic products sold on the national market in connection with the charge in question and the advantages afforded exclusively to those products. It is therefore for the national court to ascertain that national products marketed on the national market do not in fact derive an exclusive benefit or a proportionally greater benefit than exported national products from the revenue from the charge in dispute, which might offset wholly or in part the burden constituted by that charge (see, to that effect, judgment of 8 June 2006, Koornstra, C‑517/04, EU:C:2006:375, paragraphs 21 and 22 and the case-law cited).
32


It follows from settled case-law that the right to a refund of taxes levied in a Member State in breach of EU law is the consequence and complement of the rights conferred on taxpayers by provisions of EU law as interpreted by the Court. A Member State is thus in principle required to repay taxes levied in breach of EU law, in accordance with national procedural rules in accordance with the principles of equivalence and effectiveness (see, to that effect, inter alia, judgments of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph 12; of 14 January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 20; and of 12 December 2013, Test Claimants in the Franked Investment Income Group Litigation, C‑362/12, EU:C:2013:834, paragraph 30).
33


However, by way of exception to the principle of reimbursement of taxes incompatible with European Union law, repayment of a tax wrongly paid can be refused where it would entail unjust enrichment of the persons concerned. The protection of the rights so guaranteed by the legal order of the European Union does not require repayment of taxes, of charges and of duties levied in breach of European Union law where it is established that the person required to pay such charges has actually passed them on to other persons (judgments of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph 13; of 14 January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 21; and of 6 September 2011, Lady & Kid and Others, C‑398/09, EU:C:2011:540, paragraph 18).
34


In such circumstances, the burden of the charge levied but not due has been borne not by the trader, but by the purchaser to whom the cost has been passed on. Therefore, to repay the trader the amount of the charge already received from the purchaser would be tantamount to paying him twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the purchaser of the illegality of the charge (see, to that effect, judgment of 14 January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 22, and of 6 September 2011, Lady & Kid and Others, C‑398/09, EU:C:2011:540, paragraph 19).
35


Since such a refusal of reimbursement of a tax levied on the sale of goods is a limitation of a subjective right derived from the legal order of the European Union, it must be interpreted narrowly. Accordingly, the direct passing on of the tax wrongly levied on the purchaser constitutes the sole exception to the right to reimbursement of tax levied in breach of European Union law (judgment of 6 September 2011, Lady & Kid and Others, C‑398/09, EU:C:2011:540, paragraph 20).