CJEU, 4th chamber, March 1, 2018, No C-76/17

THE COURT (Fourth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 30 TFEU.

2 The request has been made in proceedings between SC Petrotel-Lukoil SA ('Lukoil') and Ms Maria Magdalena Georgescu, on the one hand, and the Ministerul Economiei (Ministry of Economy, Romania), the Ministerul Energiei (Ministry of Energy, Romania) and the Ministerul Finantelor Publice (Ministry of Public Finances, Romania), on the other, concerning the refusal by the Ministry of Economy to reimburse the lump sums paid by Lukoil by way of the Special Fund for petroleum products, established for the recovery of the debts of the former Compania Româna de Petrol (Romanian petrol company, 'the CRP').

Legal context

3 The Ordonanta de urgenta a Guvernului nr. 249/2000 privind constituirea si utilizarea Fondului special pentru produse petroliere (Government Emergency Order No 249/2000 on the establishment and use of the Special Fund for petroleum products, Monitorul Oficial al României, part I, No 647 of 12 December 2000), as amended by the Legea nr. 142/2006 pentru aprobarea Ordonantei Guvernului nr. 53/2005 privind reglementarea unor masuri financiare în domeniul bugetar si al contabilitatii publice (Law No 142/2006 approving the Government Order No 53/2005 on financial measures concerning budgetary and public accounting) ('OUG No 249/2000'), established the Special Fund for petroleum products in order to pay all the financial obligations of the former CRP.

4 Article 1 of the OUG No 249/2000 reads as follows:

'The Special Fund for petroleum products is set up, by means of the inclusion in the price of petroleum products distributed on the domestic and foreign markets, petrol and diesel, obtained from producers or processing, of a fixed amount in [Romanian lei (RON)] corresponding to a sum equivalent to [US dollars (USD) 0.01 per litre], at the exchange rate on the last day of the month preceding the sale.'

5 In accordance with Article 2 of the OUG No 249/2000:

'The Special Fund for petroleum products, formed in accordance with Article 1, shall be administered by the Ministerul Industriei si Comertului [Ministry of Industry and Trade, Romania] and will be used to pay all the financial obligations of the former [CRP].'

6 Article 5 of the OUG No 249/2000 provides:

'Producers and refiners who are legal persons established in Romania, irrespective of their organisational form, the nature of their capital and the destination of their products, corresponding to the category of use and types of the product concerned, shall be obliged to calculate and pay the sums resulting from the application of Article 1.'

7 Article 7 of the OUG No 249/2000 provides:

'The fixed amount included in the price of petroleum products referred to in Article 1 of that order represents a tax-deductible expense.'

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 Lukoil requested the Ministry of Economy to reimburse the sums which it had paid by way of exports of petroleum products, pursuant to the OUG No 249/2000, between 1 January 2007 and 31 March 2010.

9 By letter of 24 May 2010, the Ministry of Economy refused to reimburse the sums claimed by Lukoil.

10 Lukoil then brought an action before the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest, Romania). That company claimed, in essence, that those sums were overpaid from Romania's accession to the European Union on 1 January 2007, in so far as their payment was contrary to Article 30 TFEU because they constituted a fiscal charge imposed unilaterally by a Member State and levied on goods crossing a border.

11 By judgment of 12 October 2011, the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest) dismissed the action brought by Lukoil. That court held, inter alia, that the sum of USD 0.01 per litre included in the price of petroleum products was calculated for the products delivered both in Romania and outside that Member State, so that, not being due by reason of the goods having crossed border, the charge in question was neither a customs duty on exports nor a charge having equivalent effect, but constituted an internal charge. It added that, assuming that the charge imposed by the OUG No 249/2000 constitutes a customs duty prohibited by Article 30 TFEU, Lukoil's request that that charge be refunded to it would be unfounded, having regard to the prohibition of unjust enrichment, as applied by the Court in the judgment of 14 January 1997, Comateb and Others (C-192/95 to C-218/95, EU:C:1997:12). According to the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest), the sum in question was included, by virtue of Article 1 of the OUG No 249/2000, in the price of petrol and diesel supplied outside Romania and was thus borne not by the person supplying petroleum products, but by the customer.

12 Lukoil brought an appeal against the judgment of 12 October 2011 before the Înalta Curte de Casa?ie ?i Justi?ie (High Court of Cassation and Justice, Romania). That court set aside that judgment and referred the case back to the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest). By judgment of 25 January 2016, the Curtea de Apel Bucure?ti dismissed Lukoil's action.

13 In that judgment, the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest) found, on the basis of an expert report on accounting, that, although it had calculated and paid the charge in question to the State, Lukoil had not added thefixed sum of USD 0.01 per litre to the sales price of petroleum products which it sold between 1 January 2007 and 31 March 2010, but had applied such a sum to its own resources. Despite that fact, that court, however, ruled that Lukoil had not proved that the payment of that charge had caused it harm. Lukoil had put in place, on its own initiative, a payment system that is neither attributable to the defendant authority, nor based on the provisions of the OUG No 249/2000. Thus, that court held that Lukoil was not entitled to the requested reimbursement, since the charge at issue had been paid on the basis of provisions not definitively declared unlawful, as contrary to EU law, but a mechanism that Lukoil had itself established and which was not provided for by the national legislation.

14 Lukoil brought an appeal against the judgment of 25 January 2016 before the Înalta Curte de Casa?ie ?i Justi?ie (High Court of Cassation and Justice). That court notes that the disputed charge is a charge having an equivalent effect to a customs duty because it is of a pecuniary nature, it is imposed unilaterally by the competent authority of a Member State and levied on goods by reason of the fact that they cross a border. It states that Lukoil has sought reimbursement of the charges which it has paid it with its own funds between 1 January 2007 and 31 March 2010. The Court has never ruled, having regard to Article 30 TFEU, on the question whether, had it actually borne the burden of a charge having an effect equivalent to a customs duty, a taxpayer may claim reimbursement of the sums paid, even if the payment mechanism for that charge was designed in national legislation in such a way as to pass it on to the consumer.

15 In those circumstances, the Înalta Curte de Casa?ie ?i Justi?ie (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1) Do the provisions of Article 30 of TFEU preclude an interpretation to the effect that, when a taxpayer has in fact paid a charge having equivalent effect, he may request the recovery of the sums paid by way of that charge even though national legislation has designed a payment mechanism for that charge in such a way as to pass it on to the European consumer?

(2) Is the recovery of sums collected in respect of a charge having equivalent effect, when those sums were in fact paid by the taxpayer (but not passed on to the consumer), compatible with EU law?'

Consideration of the questions referred

16 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether EU law, in particular Article 30 TFEU, must be interpreted as meaning that the taxpayer who in fact pays the charge having an equivalent effect contrary to that article, must be able to obtain repayment of the sums which it has paid on that basis, even in a situation where the payment mechanism for the charge has been designed in national legislation so that the charge is passed on to the consumer.

Preliminary observations

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, CEZ, 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).

18 In the present case, the referring court states that the charge established by the OUG No 249/2000 is a charge having an equivalent effect within the meaning of Article 30 TFEU. However, it is apparent from the order for reference that, in reply to Lukoil's request for reimbursement, the Ministry of Economy had claimed that it was neither a customs duty nor a charge having an equivalent effect, but constituted an internal charge, the Curtea de Apel Bucure?ti (Court of Appeal, Bucharest), the court adjudicating on the substance in the main proceedings, having, in its judgment of 12 October 2011, confirmed that conclusion.

19 In their written observations, the Romanian Government and the European Commission also take the view that the charge established by the OUG No 249/2000 constitutes internal taxation within the meaning of Article 110 TFEU.

20 In the light of those issues, it is appropriate, before answering the questions referred by the national court, to provide that court with all the elements of interpretation on the legal characterisation of that charge under EU law.

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).

22 A charge which is imposed, on the basis of identical criteria, on domestic products which are sold on the national market and those which are exported may nevertheless be prohibited by the Treaty FEU if the revenue from such a charge is intended to support activities which specifically benefit the domestic products which are sold on the national market.

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).

26 In the present case, it is clear from the order for reference that the OUG No 249/2000 has established the Special Fund for petroleum products, created for the recovery of the debts of the former CRP and financed by the contribution from all producers and refiners of petroleum products (petrol and diesel) in Romania. In accordance with Article 1 of the OUG No 249/2000, those taxpayers are required to include, in the price of products they supply both domestically and outside Romania, a fixed amount of USD 0.01 for each litre of petroleum product marketed. According to Article 5 of the OUG No 249/2000, the obligation to calculate and pay the sums resulting therefrom, is to lie with producers and refiners who are legal persons established in Romania, irrespective of the destination of their products.

27 If the charge laid down in Article 1 of the OUG No 249/2000 does constitute a pecuniary charge imposed unilaterally on goods, it does not appear, having regard to the evidence presented in the previous paragraph, due by reason of the crossing of a frontier. That charge applies in the same way at the same rate and at the same stage both to petroleum products supplied on the Romanian market and those supplied in another Member State. The chargeable event for the charge laid down in Article 1 is therefore constituted by the marketing of petroleum products, irrespective whether it takes place in Romania or in another Member State. That charge would apply independently whether the petroleum products concerned cross the Romanian border.

28 In those circumstances, that charge is liable to constitute non-discriminatory internal taxation, compatible with EU law.

29 However, the referring court still needs to determine whether the allocation of the revenue from that charge does not favour the domestic petroleum products marketed on the national market, its decision not containing any information on that issue. The fact that the charge laid down in Article 1 of the OUG No 249/2000 is used to pay the debts of the former PRC cannot, in itself, make it possible to exclude definitively the assumption that the revenue from that charge is intended to support activities which benefit exclusively or partly such products to the detriment of national products exported to Member States other than Romania.

30 If it follows from those determinations that the revenue from the charge laid down in Article 1 of the OUG No 249/2000 does not favour national products marketed on the national market, that charge could constitute lawful internal taxation. Should it transpire that the charge benefits the national products marketed on the national market partially or to the extent of fully offsetting the burden, there might be either, in the former case, discriminatory internal taxation contrary to Article 110 TFEU or, in the second case, a charge having an effect equivalent to a customs duty, contrary to Article 30 TFEU. It is thus for the referring court to undertake the necessary checks in order to determine the nature of the charge provided for in Article 1 of the OUG No 249/2000 and its compatibility with EU law.

31 Those clarifications having been made, in the event that the charge is a charge having an equivalent effect, contrary to Article 30 TFEU, then it is necessary to answer the question on the right to reimbursement, as reformulated in paragraph 16 of the present judgment.

The right to reimbursement

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).

36 In the present case, it is common ground that, contrary to Article 1 of the OUG No 249/2000, Lukoil did not pass on the charge provided for in that article to consumers of petroleum products which it marketed. The referring court seeks to ascertain whether, in a situation where the payment of that charge was designed in the national legislation so that that charge is passed on to the consumer, Lukoil may still have the right to reimbursement of sums paid by it.

37 In that regard, it should be noted that, to the extent that Lukoil has borne the amount of the sum laid down in Article 1 of the OUG No 249/2000, the repayment of that amount does not entail any unjust enrichment of that company. In those circumstances, since the sole exception to the principle of the reimbursement of charges incompatible with EU law accepted by the Court is lacking in the present case, Lukoil is entitled to reimbursement of the charge which it has paid, if that charge is categorised as a charge having an equivalent effect to a customs duty. The possible infringement of the obligation, stemming from national legislation, to pass on the charge at issue in the main proceedings onto the final price of the product concerned is irrelevant in that respect. The right to a refund of that charge, which has its basis in EU law, cannot be refused for a reason based on national law.

38 Furthermore, it should be stated that Lukoil would also be entitled to a reimbursement, albeit partial, of the charge which it has paid under Article 1 of the OUG No 249/2000 in the event that the referring court were to find, in the light of the case-law of the Court of Justice and of the considerations set out in paragraphs 21 to 25 of the present judgment, that the charge provided for in that article is discriminatory internal taxation contrary to Article 110 TFEU. In that situation, that right to reimbursement covers the difference between the burden of the charge borne by the products placed on the EU market and the burden of the charge borne by domestic products, the latter charge taking due account of the advantage which those products would have received on an exclusive basis.

39 In the light of the foregoing considerations, EU law, in particular Article 30 TFEU, must be interpreted as meaning that the taxpayer, who in fact pays the charge having an equivalent effect contrary to that article, must be able to obtain reimbursement of the sums which it has paid by way of that charge, even in a situation where the payment mechanism for the charge has been designed in national legislation so that the charge is passed on to the consumer.

Costs

40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

EU law, in particular Article 30 TFEU, must be interpreted as meaning that the taxpayer, who in fact pays the charge having an equivalent effect contrary to that article, must be able to obtain reimbursement of the sums which it has paid by way of that charge, even in a situation where the payment mechanism for the charge has been designed in national legislation so that the charge is passed on to the consumer.