Ioviţoni and Others v. Romania (dec.)

Information Note on the Court’s case-law No. 151

April 2012

Ioviţoni and Others v. Romania (dec.) - 57583/10

Decision 3.4.2012 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Imposition of pollution tax on import of second-hand cars from European Union Member State: inadmissible

Facts – The applicants, who wished to register in Romania vehicles purchased in other member States of the European Union, had been charged pollution tax to register their vehicles, on the basis of the original version of Government Emergency Ordinance no. 50/2008. Having paid that tax to register the vehicles, they had later taken action to recover it, arguing in particular that it had been in breach of European law, namely Article 110 of the Treaty on the Functioning of the European Union (TFEU) on the free movement of goods, which was directly applicable in Romanian law, in so far as it had been charged exclusively on imported cars. Their action for the return of that tax was rejected by the domestic courts.

Law

Article 1 of Protocol No. 1: A claim against the State in respect of wrongly paid tax could be treated as an asset and accordingly deemed to be a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. More particularly, when such a tax was charged in breach of European Union law, a problem could arise under Article 1 of Protocol No. 1 (see S.A. Dangeville v. France, no. 36677/97, 16 April 2002, Information Note no. 41). In this case, the Court had to ascertain whether, when they brought their action in the domestic courts, the applicants had had a “claim that was sufficiently established to be enforceable” for the purposes of Article 1 of Protocol No. 1, in respect of the pollution tax they had had to pay and which the Court of Justice of the European Union (CJEU) had found in its judgment of 7 April 2011 in the case of Tatu (C-402/09) to be in breach of European Union law as being indirectly discriminatory. The domestic courts, which had delivered their final decisions before the date of that judgment, had ruled that they did not.

The applicable provision of European Union law, as identified by the CJEU, was Article 110 of the TFEU, the “aim of which is to ensure the free movement of goods between the Member States in normal conditions of competition [by] eliminating all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States”. It was a much more general provision than that applicable in the case of S.A. Dangeville, which had established a VAT exemption for a specific category of commercial activity. It was true that the CJEU’s interpretation of a provision of European Union law clarified and specified the meaning and scope of that provision as it should or ought to have been understood and applied from the date of its entry into force. Prior to the Tatu judgment, however, the views of the domestic courts had diverged as to whether or not the Government Emergency Ordinance complied with the principle of the free movement of goods. There had been no easy answer to that legal question, which indeed had necessitated the intervention of the CJEU. As a consequence, the Court found it hard to accept that, prior to 7 April 2011, the applicants’ claim had been based on a rule of European Union law that was perfectly clear, precise and directly applicable. Except in the event of manifest arbitrariness, the Court was unable to deal with errors of law made by the domestic courts, which were primarily responsible for interpreting and applying domestic law. There had been nothing to suggest that the decisions criticised by the applicants had been manifestly unreasonable or arbitrary. It followed that Article 1 of Protocol No. 1 was not applicable.

Conclusion: inadmissible (incompatible ratione materiae).

Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: As regards the claims of discrimination, given that the applicants could not be considered to have a “possession” or a “claim that was sufficiently established to be enforceable” for the purposes of the Court’s case-law, that aspect of the applications did not fall within the scope of Article 14 of the Convention and Article 1 of Protocol No. 1 taken together.

Conclusion: inadmissible (incompatible ratione materiae).

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This summary by the Registry does not bind the Court.

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