SOME THEORETICAL AND PRACTICAL PROBLEMS CAUSED BY THE MISMATCH BETWEEN EUROPEAN UNION LAW AND NATIONAL LEGISLATION ON ENVIRONMENTAL TAXES

This study analysis pollution taxes for the registration of used vehicles in Romania that fall into the category of environmental taxes, in terms of (non-)compliance with European Union law. These pollution taxes have been the subject of several disputes in the Court of Justice of the European Union (CJEU), which has repeatedly ruled that these taxes are contrary to European Union law because they are protectionist, discriminatory and against the free movement of goods between the Member States of the European Union. Aware of its obligation to comply with the judgements of the CJEU, the Government of Romania has adopted the Emergency Ordinance No. 52/2017 in order to refund the pollution taxes collected to the public budget in violation of European Union law, but we found out that this ordinance establishes more restrictive rules for the refund of these taxes contrary to European law compared to the general rules on refund of taxes established in violation of national law, which has led to controversial discussions and a non-unitary judicial practice of the courts that persists today. Thus, the Emergency Ordinance No. 52/2017 establishes a term of 1 year for the refund of pollution taxes compared to the term of 5 years provided by the Fiscal Procedure Code for the refund of other taxes illegally collected to the public budget. Since the Emergency Ordinance No. 52/2017 on the refund of pollution taxes for motor vehicles is contrary to the principles of sincere cooperation and equivalence enshrined in the case-law of the CJEU, we propose the repeal of this emergency ordinance and restoration of taxpayers to the right to recover pollution taxes from the public budget. As an alternative, our recommendation is that the courts accept the claims for the refund of pollution taxes regardless of whether the tax decisions by which they were established are challenged or whether the appeals against those decisions are rejected because European law and the CJEU case-law prevail over national law. For the same reasons, the other Member States of the European Union should not impose restrictive conditions on the reimbursement of pollution taxes imposed under the same conditions so as not to infringe the principles of sincere cooperation and equivalence which prohibit the difference in legal treatment between damages resulting from the incorrect application of national law and those caused by its non-compliance with European law. Otherwise, in order to respect the rights of taxpayers conferred by the European legal order, the courts of the Member States are obliged to apply the case-law of the Luxembourg Court as a matter of priority and to ignore national laws or ordinances which do not comply with European law.