The dispute in Romania was founded on the complaint introduced by Mr. Manea, who requested the registration in Romania of a used vehicle which he bought in Spain. This vehicle belongs to category M1 vehicles and was registered as a new car in Spain in 2005. The Romanian competent authority conditioned the registration with payment of the tax provided under Law No. 9/2012. Because Mr. Manea considered Law No. 9/2012 as incompatible with Article 110 TFEU, he referred to Brasov Court, for it to compel the authorities to register the vehicle in question without asking for the tax to be paid.
While specifying that, according to its own case-law, Law No. 9/2012 is compatible with Article 110 TFEU, the Brasov Court of Appeal states that another Romanian appellate court has handed down a judgment reaching the opposite conclusion and that it is for that reason necessary to seek a preliminary ruling from the Court of Justice in order to ensure uniform application of EU law.
In those circumstances, the Brasov Court of Appeal decided to suspend the proceedings and to refer the following questions to the Court for a preliminary ruling:
1) “Must Article 110 TFEU be interpreted as precluding a Member State of the European Union from establishing a tax on pollutant emissions applicable to all foreign motor vehicles upon their registration in that Member State, but to national motor vehicles upon the transfer of ownership of such vehicles, except where such a tax or a similar tax has already been paid?
2) Must Article 110 TFEU be interpreted as precluding a Member State of the European Union from establishing a tax on pollutant emissions which is applicable, in the case of all foreign motor vehicles, upon their registration in that Member State, but which, in the case of national motor vehicles, is due only on the transfer of ownership of such vehicles, the result being that a foreign vehicle cannot be used unless the tax is paid, but a national vehicle can be used for an unlimited time without the tax being paid, until the ownership of that vehicle is transferred, if such a transfer takes place?”
The European Court has established the following:
“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. It thus appears that Article 4(2) of Law No. 9/2012 exempted, from the tax imposed by that law, the transfer of the right of ownership of second-hand domestic motor vehicles the registration of which in Romania between 1 January 2007 and 1 January 2013 had given rise to the payment of a tax which is incompatible with EU law and which must, therefore, be reimbursed with interest.
In that regard, 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.
On the other hand, 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 favor the sale of domestic second-hand vehicles, thereby discouraging the importation of similar vehicles.
In the light of all of the foregoing considerations, the Court stated 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;,
– not 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.”