Information Note on the Court’s case-law 228

April 2019

Pop and Others v. Romania (dec.) - 54494/11, 67699/11 and 21251/12

Decision 2.4.2019 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to use a new remedy, applicable to pending cases, to obtain reimbursement of national taxes in breach of EU law: inadmissible

Facts – In 2009, in order to register in Romania second-hand cars that had been purchased in other States of the European Union (EU), the three applicants had to pay a “pollution tax” introduced in 2008. After paying it, they brought proceedings for reimbursement, arguing that the tax was in bre ach of EU law. In 2011 the Romanian courts dismissed their claims on procedural grounds. The applicants then complained to the Court, relying on Article 1 of Protocol No. 1 and Article 13 of the Convention.

In August 2017 an Emergency Government Ordinance (OUG 52/2017) came into force, introducing a procedure for the reimbursement of various taxes, the pollution tax being one of them (including the interest accruing over the relevant period).

In the meantime the applicants had taken other steps to obtain re imbursement: the first made a fresh request, which was to be dealt with on the basis of the new ordinance; the second obtained a partial reimbursement; and the third obtained a full reimbursement of the tax and a partial reimbursement of the interest, foll owing a judgment of October 2012.

Law – Article 35 § 1 ( exhaustion of domestic remedies )

(a) First two applicants – Even though its introduction was related more to the willingness of the national authorities to bring national law into conformity with EU law than to settle Convention-related disputes domestically, the new reimbursement procedure created by OUG 52/201 7 was also open to citizens who had lodged an application with the Court concerning the taxes in question.

Having regard to the safeguards put in place (a procedure free of charge, clear and foreseeable processes, mandatory time-limits and effective judici al scrutiny), there was no reason at present to question the effectiveness of the new remedy.

While, in principle, the question whether domestic remedies had been exhausted was to be assessed as of the date on which the application was lodged, the importa nce of the subsidiarity principle justified making an exception here. It was thus appropriate to require the prior use of the new remedy even for those applications which had already been lodged with the Court before its introduction.

(b) The third applic ant – The above-mentioned new remedy could not be applied to the third applicant because he had benefited, before its entry into force, from a final judgment ordering the reimbursement of the pollution tax, together with interest from the date on which the claim was submitted.

As the capital and part of the interest had been paid to him in accordance with the domestic judgment, the applicant ’s only remaining complaint concerned the failure to reimburse the interest on the tax over the period between the date of its payment and the date of his action for recovery before the court.

However, the applicant had two remedies by which to complain ab out the non-reimbursement of that amount (either by challenging that aspect of the judgment before the higher court, or by requesting revision of the judgment for not being compliant with EU law). He had not used either of those remedies.

Conclusion : inadm issible in respect of all three applicants (non-exhaustion of domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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