No refund of pollution tax paid on vehicles purchased from countries of the European Union. Non-exhaustion of domestic remedies and effective remedy for money reimbursement. Inadmissibility of applications
JUDGMENT
Alexandru–Mihai Pop and pthers v. Romania 25.04.2019 (no. 54494/11, 67699/11 and 21251/12)
SUMMARY
Pollution tax on second-hand vehicles purchased from other countries of the European Union. Complaints based on Article 1 of the Additional Protocol and Article 13 of the ECHR on the fact that they had to pay a pollution tax that was considered by the CEU to be incompatible with EU law. A further decree was subsequently adopted providing for a procedure for reimbursement of the pollution tax paid and its interest. The Court considered that the appeal brought by the new decree provided them with the opportunity to obtain a refund of the pollution tax and the payment of the corresponding interest. It also laid down clear and predictable procedural rules, binding deadlines and effective judicial control. This particular remedy was therefore an effective remedy within the meaning of Article 35 of the ECHR. Inadmissible actions for non-exhaustion of domestic remedies.
PROVISION
Article 35
PRINCIPAL FACTS
The applicants, Alexandru-Mihai Pop, Ioan Raita and Enescu-Marin Golea, are Romanian nationals
who were born in 1969, 1957 and 1957 respectively. They live in Romania.
In 2009 the applicants purchased second-hand cars in the countries of the European Union. In order
to have them registered in Romania, they were subsequently required to pay a pollution tax, which
had been introduced by a Government Emergency Ordinance (OUG no. 50/2008).
After having paid these taxes (about 650 euros (EUR) in Mr Pop’s case, EUR 2,220 in Mr Raita’s case
and EUR 500 in Mr Golea’s case), the applicants brought recovery proceedings, arguing that the
taxes were contrary to EU law and, in particular, that they breached the principle of the free
movement of goods, since they applied exclusively to imported vehicles. The Romanian courts
dismissed their applications in 2011, as the applicants had not complied correctly with the prior
administrative procedure.
On 7 August 2017 another emergency ordinance (OUG no. 52/2017) entered into force. It provided
for the reimbursement of the pollution tax. In the meantime, the applicants had brought other
proceedings to have the tax refunded, and their legal situations developed as follows: Mr Pop,
having failed to obtain reimbursement of the pollution tax, submitted an application which was dealt
with on the basis of the provisions in OUG no. 52/2017; Mr Raita obtained a partial refund of the tax;
Mr Golea obtained a full refund of the tax and partial reimbursement of the interest, following a
final judgment delivered by the Arad County Court on 30 October 2012.
THE DECISION OF THE COURT
1. With regard to the applications from Mr Pop and Mr Raita
OUG no. 52/2017 had introduced a procedure for recovering the special tax on cars, the pollution
tax, the tax on pollutants and the environmental tax, as well as any interest in respect of those taxes.
All taxpayers who had paid the above taxes acquired a right to their reimbursement on the date that
OUG no. 52/2017 had entered into force, and there was no cost for the procedure. In addition, the
ordinance provided for the reimbursement of interest for the period between the dates on which
the taxes had been paid until they were actually refunded, and laid down time-limits for
reimbursement. In addition, an automatic repayment system was foreseen for the sums, fixed by
administrative decisions, which had still to be refunded on the date OUG no. 52/2017 had entered
into force. Thus, any person who had paid the above-mentioned taxes could apply for
reimbursement on the basis of OUG no. 52/2017.
In the Court’s view, this was an accessible administrative procedure, which set out a specific
time-frame for recovering the sums paid for each type of tax. In addition, administrative and judicial
review of the reimbursement decisions was provided for. In principle, any administrative dispute had
to be resolved within 45 days by the fiscal authority concerned, and any appeal against the latter’s
decision was subject to proceedings before the administrative courts.
Having regard to the safeguards foreseen, namely clear and foreseeable procedural rules, with
binding time-limits and effective judicial review, the Court found that the procedures of OUG no.
52/2017 represented an effective remedy for the purposes of Article 35 of the Convention. In
consequence, the Court considered that the remedy introduced in this area benefited Mr Pop and
Mr Raita. It therefore rejected their applications for non-exhaustion of domestic remedies.
2. With regard to the application from Mr Golea
The remedy provided for by OUG no. 52/2017 could not be applied to Mr Golea’s situation because,
in his case, a final judgment ordering reimbursement of the pollution tax had been complied with
prior to the entry into force of that ordinance. Given that the pollution tax had been refunded and
some of the corresponding interest paid, Mr Golea’s complaint concerned only the domestic courts’
alleged refusal to award him, when refunding the pollution tax, the interest relating to the period
between the date on which he had paid the tax and the date he had applied to the domestic courts.
Reiterating the subsidiary character of the Convention machinery, the Court identified two domestic
remedies that Mr Golea could have used.
Firstly, he had not submitted his complaint about the method of calculating the interest to the Arad
County Court. Nor had he lodged an appeal against that court’s judgment. Secondly, he had not
referred to a relevant CJEU judgment in his pleadings before the Timisoara Court of Appeal, nor
submitted a request for revision of a final judgment delivered in breach of the principle of the
primacy of European Union law. Lastly, Mr Golea acknowledged that he had failed to take any steps
at national level to obtain the reimbursement of the above-mentioned interest and did not put
forward any argument showing that such an approach would have been ineffective.
In consequence, the Court held that Mr Golea had not afforded the respondent State the possibility,
by using the legal remedies available in domestic law, of putting right the alleged violation. His
application was accordingly dismissed for non-exhaustion of domestic remedies(echrcaselaw.com editing).
