OPINION OF ADVOCATE GENERAL

delivered on 15 May 2014 (1)

Case C‑331/13

Administraţia Finanţelor Publice a Municipiului Sibiu,

(Request for a preliminary ruling from the Tribunalul Sibiu (Romania))

‘Repayment of a tax incompatible with EU law — Restriction on the amount of the repayment owing to a change in national legislation’

I – Introduction

1.This case is one of a long list of Romanian cases concerning the compatibility with Article 110 TFEU of the motor vehicle pollution tax. (2) In particular, it raises the question whether the Romanian tax authorities are entitled to retain, as a new tax of the same nature and object, called ‘environmental stamp duty’, the sum which had been levied as pollution tax incompatible with EU law.

II – Legal framework

A – EU law

2.Article 110 TFEU provides:

‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

3.In the judgment in Tatu (EU:C:2011:219), the Court interpreted that article ‘as precluding a Member State from introducing a pollution tax levied on motor vehicles on their first registration in that Member State if that tax is arranged in such a way that it discourages the placing in circulation in that Member State of second-hand vehicles purchased in other Member States without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market’. (3)

B – Romanian law

4.Article 4 of Government Emergency Order No 9/2013 introducing an environmental stamp duty (‘OUG No 9/2013’) provides:

‘The obligation to pay the [environmental] stamp duty arises only once:

(a)on the registration with the competent authority of the acquisition of ownership of a vehicle by its first owner in Romania and upon the issue of a registration certificate and registration number;

(b)on the return of a motor vehicle to the national stock of motor vehicles where, at the time of its removal from the national stock of motor vehicles, the residual amount of the environmental stamp duty was returned to the owner;

(c)on the registered transfer of ownership of a second-hand motor vehicle in respect of which the special tax for passenger cars and motor vehicles, the pollution tax on motor vehicles or the tax on pollutant emissions from motor vehicles has not been paid in accordance with the legislation in force at the time of the vehicle’s registration;

(d)on the registered transfer of ownership of a second-hand vehicle in respect of which a court has ordered a [tax] repayment or has permitted its registration without payment of the special tax for passenger cars and motor vehicles, of the [pollution tax], or of the tax on pollutant emissions from motor vehicles.’

5.Article 12(1) of that order provides:

‘Where the special tax for passenger cars and motor vehicles, the pollution tax on motor vehicles or the tax on pollutant emissions from motor vehicles paid is greater than the stamp duty resulting from the application of the present provisions on environmental stamp duty, calculated in [Romanian lei (RON)] at the exchange rate applicable at the time of registration or registered transfer of ownership of a used motor vehicle, a sum equal to the difference may be repaid to the person having the obligation to pay in accordance with the procedure laid down in the implementing regulations for the present emergency order. The calculation of the difference to be reimbursed shall be made on the basis of the calculation formula laid down in this emergency order using information relating to the date of registration or registered transfer of ownership of the second-hand vehicle.’

III – The main proceedings and the question referred for a preliminary ruling

6.Government Emergency Order No 50/2008 introducing the pollution tax on motor vehicles (‘OUG No 50/2008’), which came into force on 1 July 2008, imposed a pollution tax on vehicles in categories M1 to M3 and N1 to N3. The obligation to pay that tax arose inter alia on the first registration of a motor vehicle in Romania, and the tax was thus levied on imported second-hand vehicles.

7.The Court has declared that a tax such as that pollution tax was contrary to Article 110 TFEU on the ground that it ‘[had] the effect of discouraging the import and placing in circulation in Romania of second-hand vehicles purchased in other Member States’. (4) For the same reason, the Court has held that the same applied to a tax such as the pollution tax introduced by Law No 9/2012, (5) which, on 13 January 2012, had repealed OUG No 50/2008, before being repealed itself on 15 March 2013 by OUG No 9/2013.

8.During the course of 2009, Mr Nicula purchased a BMW 320i motor car registered for the first time in another Member State of the European Union, namely Germany. In order to register the vehicle in Romania, he paid the sum of RON 5153 (approximately EUR 1 200) in respect of the pollution tax provided for by OUG No 50/2008.

9.Mr Nicula lodged a claim for repayment of that sum with the Romanian tax authorities and, after they had rejected his claim, he brought an action before the Romanian courts.

10.By administrative judgment No 1497/CA/2012, the Tribunalul Sibiu (Regional Court, Sibiu) (Romania) upheld the action brought by Mr Nicula against the Agentia Fondului pentru Mediu (Investment Fund Office) (the recipient of the tax), ordered that defendant to refund the tax after finding, on the basis of the judgment in Tatu, that the pollution tax was incompatible with Article 110 TFEU, and dismissed the action brought against the Administraţia Finanţelor Publice Sibiu (State Finance Administration, Sibiu) (the collector of the tax).

11.On 25 January 2013, following the appeal brought against that judgment, the Curtea de Apel de Alba-Iulia (Court of Appeal, Alba-Iulia) quashed that judgment and referred the case back to the court of first instance for it to give a fresh ruling, observing, for the purposes of that new ruling, that, in disputes of this kind, the persons against whom proceedings for repayment of a tax levied in breach of EU law may be brought include not only the recipient of the tax but also the collector of the tax.

12.After the case had been re-entered on the roll at the Tribunalul Sibiu, OUG No 9/2013 introducing the environmental stamp duty entered into force on 15 March 2013.

13.In the applicant’s specific case, the environmental stamp duty in respect of his motor vehicle resulting from the application of OUG No 9/2013 amounted to RON 8126,44, while the pollution tax previously paid was RON 5153.

Therefore, by virtue of Article 12(1) of OUG No 9/2013, Mr Nicula is no longer entitled to recover the pollution tax and the interest thereon, since the amount he had paid will be retained by the tax and environmental authorities as environmental stamp duty, because the amount of environmental stamp duty was greater than the pollution tax he had paid.

Accordingly, the Tribunalul Sibiu decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Are the provisions of Article 6 of the Treaty on European Union, Articles 17, 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 110 TFEU, the principle of legal certainty and the principle prohibiting reformation in peius, both affirmed in [European Union] law and the case-law of the Court of Justice ([judgments in] Belgocodex, C‑381/97, EU:C:1998:589 and Belbouab, 10/78 EU:C:1978:181), to be interpreted as precluding legislation such as [OUG] No 9/2013?’

IV – Procedure before the Court of Justice

The request for a preliminary ruling was lodged at the Court on 18 June 2013. Written observations were submitted by Mr Nicula, the Romanian Government and by the European Commission.

By its letter of 20 December 2013, the Romanian Government requested that the case be assigned to the Grand Chamber. In accordance with the third paragraph of Article 16 of its Statute, the Court granted that request. At the hearing, the Romanian Government justified that request by the need to ensure the consistency of the case‑law relating to the taxation of imported second-hand vehicles.

Pursuant to Article 101 of its Rules of Procedure, on 14 February 2014 the Court requested the national court to provide, by 5 March 2014 at the latest, clarification concerning the applicability of OUG No 9/2013 to the main proceedings. The national court’s reply reached the Court on 4 March 2014.

A hearing was held on 25 March 2014, at which Mr Nicula, the Romanian Government and the Commission presented oral argument.

V – Analysis

A – Admissibility

The Romanian Government considers that this reference for a preliminary ruling is inadmissible because a reply to the question raised by the national court is not necessary for reaching a decision in the main proceedings. According to the Romanian Government, OUG No 9/2013 does not apply to the main proceedings for two reasons.

In the first place, the Romanian Government considers that an out-of-court procedure for the repayment of any differences between the tax paid under legislative acts prior to OUG No 9/2013 and the environmental stamp duty, introduced by Article 12 of that order, do not concern the referring court in any way and do not apply to the main proceedings.

The Romanian Government therefore considers that that out-of-court procedure for repayment does not prevent the national court ordering the repayment of the whole sum paid by Mr Nicula in respect of pollution tax.

In the second place, the Romanian Government considers that, according to the principle of tempus regit actum, OUG No 9/2013, which came into force on 15 March 2013, does not apply to the claim for repayment of the pollution tax paid by Mr Nicula in 2009. Consequently, the national court should not consider itself bound by Article 12 of that emergency order.

In the light of those arguments, the Court of Justice asked the national court to state its views on the applicability of OUG No 9/2013, and particularly Article 12 thereof, to the main proceedings.

By its reply, which reached the Court on 13 March 2014, the national court confirmed that Article 12 of OUG No 9/2013 was applicable to the main proceedings. According to the national court, the Romanian Government’s interpretation of that order has no legal basis and renders Article 12 of that order meaningless.

According to the settled case-law of the Court of Justice, ‘in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the ultimate judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling.’ (6)

Since the national court has confirmed that OUG No 9/2013 is applicable to the main proceedings, the Romanian Government’s objections concerning the admissibility of this reference for a preliminary ruling must be rejected.

B – Substance

By its question, the court wishes to know whether provisions such as those of OUG No 9/2013 comply with Article 110 TFEU, with the principles of equality before the law and non-discrimination enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), with the right to property enshrined in Article 17 of the Charter, and also with the principle of legal certainty, the principle that laws may not have retroactive effect and the principle prohibiting reformatio in peius.

The essence of Mr Nicula’s complaint is that Article 12 of OUG No 9/2013 perpetuates the discrimination introduced by the pollution tax between second‑hand vehicles imported into Romania and vehicles which were already in the Romanian market and which were therefore exempt from pollution tax. In my view, therefore, as in Tatu, Nisipeanu, Druţu, Micşa, Vijulan, and Câmpean and Ciocoiu, the applicable rules are Article 110 TFEU, which prohibits discriminatory taxes, and the principle that any tax levied in infringement of EU law, and in particular of Article 110 TFEU, must be refunded to the taxpayer.

Under Article 52(2) of the Charter, ‘[r]ights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties’. Consequently, it is not necessary, for the purposes of the Court’s interpretation of EU law, to examine the applicability to the case of other rules and principles contained in the Charter. The same applies with regard to the other general principles cited by the national court, which may however refer to those rules and principles in the context, for example, of an analysis of the constitutionality of OUG No 9/2013 in Romanian law.

Mr Nicula considers that, by creating a new pollution tax called ‘environmental stamp duty’ and permitting the Romanian tax authority to refund to the taxpayer only the difference between the amount of the stamp duty and the amount already paid in respect of pollution tax, OUG No 9/2013 seeks inter alia to prevent any action to obtain repayment of pollution tax in any form prior to the environmental stamp duty.

Moreover, Mr Nicula considers that the environmental stamp duty is itself contrary to Article 110 TFEU because it introduces discrimination between:

owners, such as Mr Nicula, of second-hand vehicles purchased in a Member State other than Romania, who paid pollution tax when the vehicles were registered in Romania and have not yet recovered it, on whom environmental stamp duty is levied immediately by retaining part or all of the tax paid previously, and

owners of vehicles already registered in Romania, on whom environmental stamp duty is levied only on any registration of transfer of ownership to a third party.

Mr Nicula adds that the environmental stamp duty also constitutes a discriminatory tax charge in the sense that OUG No 9/2013 does not guarantee that the amount of tax payable on second‑hand vehicles imported from another Member State will not exceed the amount of the residual tax incorporated into the value of similar vehicles already registered in Romania.

The Romanian Government submits that OUG No 9/2013 fully complies with the rules stated in Tatu (EU:C:2011:219). It considers that the environmental stamp duty is based on objective and transparent criteria, such as the vehicle’s engine capacity and the Euro pollution standard or CO2 emissions. Moreover, the amount of the stamp duty takes due account of the actual market value of a second-hand vehicle calculated from the moment it is introduced into the market and may be challenged by administrative or legal proceedings in order to demonstrate a greater depreciation than that established according to the depreciation scale. Accordingly, the Romanian Government maintains, the environmental stamp duty imposed on imported vehicles does not exceed the amount of the residual tax incorporated into the value of similar second-hand motor vehicles already registered in the national territory.

The Romanian Government also points out that payment of the environmental stamp duty is compulsory and imposed at the time of first registered transfer of ownership of vehicles which were already in the national stock of motor vehicles before the introduction of the stamp duty, including cars in respect of which the previous pollution tax was not paid, as required under Tatu (EU:C:2011:219) and Nisipeanu (EU:C:2011:466).

Consequently, the Romanian Government concludes that national legislation such as OUG No 9/2013 is not contrary to Article 110 TFEU.

The Commission takes the view that the regime introduced by OUG No 9/2013 is contrary to Article 110 TFEU because it applies retroactively to chargeable events which occurred before OUG No 9/2013 came into force and thus perpetuates the discriminatory practice found by the Court in Tatu (EU:C:2011:219).

It should be noted at the outset that, according to settled case‑law, the right to a refund of taxes levied in a Member State in breach of the rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law prohibiting such taxes. The Member State is therefore required in principle to repay charges levied in breach of EU law. (7) Moreover, where a Member State has levied taxes in breach of EU law, taxpayers are entitled to repayment not only of the tax thus levied, but also of the corresponding interest from the date of payment of the tax. (8)

That rule has only one exception — the passing-on of the tax to other persons — (9) and, in the absence of EU legislation, it is governed by national rules of procedure, subject to observance of the principles of equivalence and effectiveness. (10)

In that connection, it is important to note that the Court has already held that, in all its versions, OUG No 50/2008 introduced a tax regime which discouraged the registration, in Romania, of second-hand vehicles purchased in other Member States, and is therefore contrary to Article 110 TFEU. (11)

Consequently, Romania is under an obligation to refund the pollution tax to Mr Nicula.

That said, Member States may impose new taxes on vehicles for environmental policy or general policy reasons by means of new legislative provisions provided that such taxation does not discourage the importation of goods from other Member States to the advantage of domestic products and does not therefore infringe Article 110 TFEU. (12)

It therefore seems to me that, as a result, in particular, of Tatu (EU:C:2011:219), the Romanian authorities had to choose between two options in order to comply with their obligations under EU law: either to abolish the pollution tax and refund the amounts levied in respect of that tax on taxpayers who had already paid it, whether or not they introduced a new tax in accordance with Article 110 TFEU for the future, or to maintain the pollution tax (under whatever name) but also to impose it immediately on the owners of second-hand vehicles already registered in Romania.

Instead of choosing one of those options, the Romanian Government in fact opted, with OUG No 9/2013, for a regime which imposes on all vehicles, whether or not imported, a new tax as from a future date while allowing the tax authorities to retain the sums unlawfully levied by way of pollution tax until the next registered transfer of ownership of the vehicle in question, which will trigger payment of the environmental stamp duty.

As the national court states, Article 12 of OUG No 9/2013 limits repayment of the pollution tax levied under OUG No 50/2008 to the difference between the environmental stamp duty and the pollution tax. The amount paid previously is therefore retained in lieu of environmental stamp duty whereas, for vehicles which were already registered in Romania at the time OUG No 50/2008 came into force and therefore exempt from pollution tax, environmental stamp duty does not become payable until the next registered transfer of ownership of those vehicles.

The question therefore arises whether a Member State may refuse to refund a tax which is contrary to EU law by introducing a new tax which may be payable in the future and a legal basis which allows the tax authority to retain the amount levied in respect of the tax declared contrary to EU law until the new tax becomes payable, at which time those two taxes are offset.

Against that background, even though this case concerns the repayment of pollution tax, not the imposition of environmental stamp duty, it is necessary to examine whether the combination of Articles 4 and 12 of OUG No 9/2013, which postpones repayment of pollution tax until environmental stamp duty becomes payable, and makes it subject to the condition that that the amount of pollution tax exceeds that stamp duty, complies with the obligation to refund tax levied in breach of European law and eliminates the discrimination, prohibited by Article 110 TFEU, which had been introduced by OUG No 50/2008. Although at the hearing, Mr Nicula and the Romanian Government discussed at length the method of calculating the environmental stamp duty, this case concerns only the repayment of the pollution tax. The compatibility of the method of calculating the environmental stamp duty with Article 110 TFEU is therefore not part of the question referred for a preliminary ruling.

a) The consistency of the Court’s case-law concerning imported second‑hand vehicles

At the hearing, the Romanian Government justified its request for this case to be assigned to the Grand Chamber by claiming that the judgment in Nádasdi and Németh (13) was inconsistent with the judgments in Tatu (14) and Nisipeanu. (15)

According to the Romanian government, it is impossible to reconcile the judgment in Nádasdi and Németh, in which the Court held that ‘[a] comparison [of used vehicles newly imported into Hungary] with used vehicles placed in circulation in Hungary before the entry into force of the Law on registration duty is not relevant’, (16) with the judgments in Tatu and Nisipeanu, in which the Court examined the neutrality of the pollution tax as between imported second-hand vehicles and similar second-hand vehicles which were registered on national territory before OUG No 50/2008 entered into force. (17)

I would point out that, unlike Nádasdi and Németh, Tatu and Nisipeanu, the present case concerns an action for repayment of a tax declared incompatible with Article 110 TFEU and not the compatibility of the environmental stamp duty with that article. Consequently, the matter of the uniformity of the Court’s case-law raised by the Romanian Government is not at issue, since the relevant judgments for the pollution tax at issue in the present case are unquestionably Tatu and Nisipeanu, which were delivered much later than the judgment in Nádasdi and Németh.

b) The compatibility of a rule such as that laid down in Article 4 of OUG No 9/2013 with Article 110 TFEU

It is not disputed that the first paragraph of Article 110 TFEU imposes complete neutrality of internal taxation as regards competition between products already on the domestic market and similar imported products. (18)

It is therefore necessary to examine whether Article 4 of OUG No 9/2013 imposes the same tax on imported second-hand vehicles and second-hand vehicles which were already registered in Romania before OUG No 50/2008 came into force and were therefore exempt from pollution tax.

I take the view that Article 4(c) and (d), as they are worded, are not vitiated by the discrimination found in Tatu (EU:C:2011:219), since second-hand vehicles which were registered in Romania before OUG No 50/2008 came into force and were therefore exempt from pollution tax are subject to the new tax, just like the second-hand vehicles in respect of which a Romanian court, following the judgment in Tatu, had ordered either reimbursement of the pollution tax or permitted registration without payment of pollution tax.

Not only is the environmental stamp duty applicable in principle to both of the aforementioned categories, but it is also payable at the same time, namely on the next registered transfer of ownership.

This assessment should therefore lead to the repayment to Mr Nicula of the pollution tax which was incompatible with EU law, since the new environmental stamp duty may be imposed on him only at the next registered transfer of ownership of his vehicle.

As the national court considers that Article 12 of OUG No 9/2013 is also applicable to the current proceedings, it is also necessary to examine the compatibility with EU law of a rule such as that laid down in that article, which provides that pollution tax (as paid in this case by Mr Nicula) may be refunded to him if and to the extent that it is greater than the environmental stamp duty which will have to be paid on the vehicle in question.

c) The compatibility of a rule such as that laid down in Article 12 of OUG No 9/2013 with Article 110 TFEU and the obligation to refund tax levied in breach of EU law

I note that the discrimination introduced by OUG No 50/2008 consisted in the fact that the pollution tax ‘[had] the effect that imported second-hand vehicles of considerable age and wear [were] ... subject to a tax which [might] approach 30% of their market value, while similar vehicles offered for sale on the domestic second-hand vehicle market are not burdened by such a tax charge’. (19) On that basis, the Court had held that the pollution tax ‘[had] the effect of discouraging the import and placing in circulation in Romania of second-hand vehicles purchased in other Member States’. (20)

According to the Romanian Government, Romania complied with Tatu (EU:C:2011:219) and Nisipeanu (EU:C:2011:466) by adopting Article 4(c) of OUG No 9/2013, extending the imposition of the environmental stamp duty to vehicles which were already registered in Romania and exempt from pollution tax, from the next change of ownership of those vehicles.

I think, on the contrary, that Article 12 of that emergency order (which the Romanian Government considered was not applicable to this dispute) (21) does not eliminate the discrimination created by the previous legislation.

In fact, the effect of that article is to allow the tax authority to retain the sum already levied in respect of pollution tax until a possible registered transfer of ownership of the vehicle in question. Further, that is without taking into account the interest which would be payable to taxpayers who have paid the pollution tax or providing a mechanism for reimbursing that tax and for paying the interest thereon if in the future there is no registered transfer of ownership of the vehicle.

As Mr Nicula claims, the registered transfer of ownership of a second-hand vehicle which was already registered in Romania when OUG No 50/2008 came into force or which, like Mr Nicula’s vehicle, was imported when that order was in force, is not at all certain, because a large number of those vehicles may be very old. The same result is possible if the vehicle in question has been stolen or destroyed.

62.Consequently, as the Commission maintains, the environmental stamp duty does not apply in the same way to all the transactions carried out during the period of application of OUG No 50/2008. Even though it applies to second-hand vehicles which were already registered in Romania and were, as such, exempt from pollution tax, it will be payable only at the first transfer of ownership of that vehicle following the entry into force of OUG No 9/2013, whereas Article 12 allows the tax authority not to refund the amount of pollution tax already levied, in breach of Article 110 TFEU, on second-hand vehicles imported since the entry into force of OUG No 50/2008.

63.The Romanian Government tries to justify that difference in treatment by maintaining that certain differences in treatment of comparable situations form an integral part of legislative action to restore legality following a judgment of the Court of Justice declaring a national rule of law incompatible with EU law. I do not share that view, which undermines the effectiveness and uniform application of EU law. On the contrary, following a finding by the Court of an infringement of EU law, the Member States are required to remedy that infringement and to eliminate all its consequences.

64.I therefore consider, as does the Commission, that Article 12 of OUG No 9/2013 is not compatible with Article 110 TFEU and infringes Romania’s obligation to refund the pollution tax levied in breach of that article of the Treaty.

65.In those circumstances, the amount of the pollution tax plus the corresponding interest must be refunded to Mr Nicula.

66.The reply to the question raised by the national court should therefore be that Article 110 TFEU is to be interpreted as precluding a national vehicle taxation scheme such as that introduced by Articles 4 and 12 of OUG No 9/2013.

C – Limitation on the temporal effects of the judgment

67.If the Court were to hold that Article 110 TFEU precludes a tax scheme such as the one at issue, the Romanian Government asks the Court to limit the temporal effects of its decision.

68.The Romanian Government maintains that it acted in good faith by introducing the tax regime at issue with the aim of complying with Tatu (EU:C:2011:219) and Nisipeanu (EU:C:2011:466). It adds that the repayment of the sums levied would cause the Romanian State serious problems.

69.At the hearing, the Romanian Government claimed that the total sum levied on the basis of OUG No 9/2013 (22) is RON 3288565944 (approximately EUR 750 million). According to its own estimates, the interest on that sum exceeds RON 1583545688 (approximately EUR 360 million), which brings the total sum payable out of the Romanian budget to approximately EUR 1.1 billion. According to the Romanian Government, that amount represents 36.5% of the deficit provided for in the 2013 budget and its repayment might affect the planned environmental protection programmes and projects.

70.Moreover, the Romanian Government maintains, the Romanian budget for 2013 has a deficit of EUR 2.97 billion and the refund of the sums levied and the corresponding interest would increase the budgetary deficit by 0.8%, which would jeopardise fulfilment of the obligation imposed on Romania by the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union to reduce the budgetary deficit as much as possible.

71.Also at the hearing, Mr Nicula challenged the reliability of the figures given by the Romanian Government, basing his argument on the figures published by the Administraţia Fondului pentru Mediu according to which the amount received in 2013 in respect of environmental stamp duty following the entry into force of OUG No 9/2013 was approximately RON 730 million, not RON 3288565944. Mr Nicula also disputes the amount of RON 1583545688 by way of interest but does not give an alternative figure. He maintains that the total amount to be refunded represents only 0.83% of the Romanian budget for 2013.

72.In its reply, the Romanian Government did not dispute the figures given by Mr Nicula.

73.It should be noted at the outset that, according to settled case‑law, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law, clarifies and 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 entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts 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. (23)

74.Referring to settled case-law of the Court of Justice, I stated in the Opinion I delivered in T-Mobile Austria, ‘[i]t is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. 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’. (24)

75.In my view, neither of these two factors is present in this case.

76.As for the criterion of good faith, the Romanian Government maintains that OUG No 9/2013 was adopted with the aim of ensuring fulfilment of Romania’s obligations under Article 110 TFEU, as interpreted by the Court in Tatu (EU:C:2011:219) and Nisipeanu (EU:C:2011:466).

77.However, by imposing different rules of applicability for imported vehicles and vehicles already registered in Romania, OUG No 9/2013 perpetuates, for the reasons I have given in points 59 to 64 of this Opinion, the discrimination originally introduced by OUG No 50/2008, a fact of which the Romanian Government cannot have been unaware.

78.Where the criterion of good faith is not met, ‘it is not necessary to establish whether the second criterion …, relating to the risk of serious difficulties, is satisfied’. (25) However, should it be of assistance to the Court, I set out below some thoughts concerning this second criterion.

79.I would point out, first of all, that the Romanian Government had previously sought the temporal limitation of the effects in Nisipeanu (EU:C:2011:466). On that occasion, the Court held that ‘the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling. … It is for the Member State requesting that limitation to present, before the Court, figures showing the risk of serious financial consequences. …’ (26)

The Romanian Government’s request was rejected on the grounds that ‘in the absence of more precise figures establishing that the Romanian economy is in danger of being seriously disrupted by the repercussions of this judgment, the condition relating to the existence of serious difficulties cannot be regarded as satisfied’. (27)

In my view, the figures put forward by the Romanian Government and the disagreement of the parties concerning those estimates are irrelevant, because this case does not concern the question of the refund of the amounts levied under OUG No 9/2013, but the refund of the amounts levied under the previous legislation, and in particular OUG No 50/2008. Therefore, in the absence of more precise figures establishing that the Romanian economy is in danger of being seriously disrupted by the repercussions of this judgment, I consider that, as in Nisipeanu (EU:C:2011:466), the condition relating to the existence of serious difficulties is not satisfied.

In any event, as I have said in point 43 of this Opinion, as a result of the judgment in Tatu (EU:C:2011:219), the Romanian Government had the option either of abolishing the pollution tax and refunding the amounts levied in respect of that tax to the taxpayers who had already paid it, or of maintaining the pollution tax (under whatever name) but imposing it promptly and immediately on the owners of second-hand cars already registered in Romania and as such exempt from pollution tax.

Since, by adopting OUG No 9/2013, the Romanian Government chose to maintain the pollution tax in the form of the environmental stamp duty, it was sufficient, in order to avoid that disruption to the budget and to eliminate the discrimination introduced by OUG No 50/2008, to levy the environmental stamp duty on the second-hand vehicles already registered in Romania which had escaped the pollution tax, and to do it immediately, not on the next registered transfer of ownership of those vehicles.

Consequently, even if, under the current rules, Mr Nicula is entitled to a refund of the pollution tax which he had paid in 2009, Romania may avoid any risk to its budget by amending OUG No 9/2013, so as to impose payment of environmental stamp duty on the owners of second-hand vehicles which were already registered in Romania when OUG No 50/2008 came into force and which were at the time exempt from pollution tax.

It is apparent from those considerations that there is no need to limit the temporal effects of the judgment.

VI – Conclusion

I therefore propose that the Court reply as follows to the question referred by the Tribunalul Sibiu:

Article 110 TFEU must be interpreted as precluding a national vehicle taxation scheme such as that introduced by Articles 4 and 12 of Government Emergency Order No 9/2013 on an environmental stamp duty on motor vehicles.

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(1) Original language: French.

(2) See the judgments in Tatu, C‑402/09, EU:C:2011:219, and Nisipeanu, C‑263/10, EU:C:2011:466; see also the orders in Druţu, C‑438/10, EU:C:2011:478, Micşa, C‑573/10, EU:C:2011:479, Vijulan, C‑335/10, EU:C:2011:477, and Câmpean and Ciocoiu, C‑97/13 and C‑214/13, EU:C:2014:229.

(3) Paragraph 61.

(4) Ibid., paragraph 58. The amending versions of OUG No 50/2008 were also held to be contrary to EU law by the judgment in Nisipeanu, EU:C:2011:466, and the orders in Druţu, EU:C:2011:478, Micşa, EU:C:2011:479, and Vijulan, EU:C:2011:477.

(5) See the order in Câmpean and Ciocoiu, EU:C:2014:229, paragraphs 31 to 33.

(6) Judgment in Zurita García and Choque Cabrera, C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 34. See, also, to that effect, judgments in IKA, C‑326/00, EU:C:2003:101, paragraph 27; Keller, C‑145/03, EU:C:2005:211, paragraph 33; Conseil général de la Vienne, C‑419/04, EU:C:2006:419, paragraph 19; and Gómez-Limón Sánchez-Camacho, C‑537/07, EU:C:2009:462, paragraph 24.

(7) See the judgments in San Giorgio, 199/82, EU:C:1983:318, paragraph 12; Metallgesellschaft and Others, C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 84; Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774

Test Claimants in the Franked Investment Income Group Litigation

C‑362/12, EU:C:2013:834, paragraph 30.

(8) See the judgment in Irimie, C‑565/11, EU:C:2013:250, paragraph 29.

(9) See, inter alia, the judgment in Lady & Kid and Others, C‑398/09, EU:C:2011:540, paragraph 20.

(10) See, for example, judgments in Danfoss and Sauer-Danfoss, C‑94/10, EU:C:2011:674, paragraph 24 and the case-law cited, and Irimie, EU:C:2013:250, paragraph 23.

(11) Judgment in Nisipeanu, EU:C:2011:466, paragraphs 27 to 29. See, also, with regard to OUG No 9/2012, the order in Câmpean and Ciocoiu, EU:C:2014:X229, paragraphs 31 to 33.

(12) Judgment in Nádasdi and Németh, C‑290/05 and C‑333/05, EU:C:2006:652, paragraph 49.

(13) EU:C:2006:652.

(14) EU:C:2011:219.

(15) EU:C:2011:466.

(16) EU:C:2006:652, paragraph 49.

(17) EU:C:2011:219, paragraph 38, and EU:C:2011:466, paragraph 20.

(18) See the judgments in Commission v Denmark, C‑47/88, EU:C:1990:449, paragraphs 8 and 9, and Tatu, EU:C:2011:219, paragraph 34.

(19) Judgment in Tatu, EU:C:2011:219, paragraph 58.

(20) Ibid.

(21) A position which the national court rejected in its written response to the Court’s request for clarifications.

(22) In reply to a question which I put to it at the hearing, the Romanian Government confirmed that it was indeed speaking of sums received on the basis of OUG No 9/2013.

(23) See judgments in Barreira Pérez, C‑347/00, EU:C:2002:560, paragraph 44; Linneweber and Akritidis C‑453/02 and C‑462/02, EU:C:2005:92, paragraph 41; and Meilicke and Others, C‑292/04, EU:C:2007:132, paragraph 34.

(24) Opinion in T-Mobile Austria, C‑616/11, EU:C:2013:691, point 96. See the judgments in Vroege, C‑57/93, EU:C:1994:352, paragraph 21; Cooke, C‑372/98, EU:C:2000:558, paragraph 42; Skov and Bilka, C‑402/03, EU:C:2006:6, paragraph 51; Nádasdi and Németh, EU:C:2006:652, paragraph 63; Brzeziński, C‑313/05, EU:C:2007:33, paragraph 56; Kalinchev, C‑2/09, EU:C:2010:312, paragraph 50; and Santander Asset Management SGIIC and Others, C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 59.

(25) Judgment in Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 47.

(26) Paragraph 34.

(27) Ibid., paragraph 36.