Jurisprudential Analysis Regarding the Special First Registration Tax and the Pollution Tax

Abstract

The car registration tax is subject to many critics, originating from the European Commission, legal authors and practitioners, but also from consumers, since its coming into force as levy by Law No. 571/2003 on the Fiscal Code. The critics were directed both against incompatibility of the said tax with the provisions of Article 90 of the EC Treaty and the fact it is illegally charged, as there is not any fiscal administrative act for its typification.

The pollution tax established by Emergency Government Ordinance No. 50/2008, in its original version, in force by 15.12.2008, is compatible with the provisions of the EC Treaty and with the principles provided in the case-law of the ECJ, as the criteria employed were already accepted by the ECJ as objective in nature and that may be used in a tax scheme sufficiently precise, including elements linked with the pollution norm (CO2), engine type, engine capacity and a scale of tax reduction by taking into account the depreciation of the vehicle.

The destination of that pollution tax reflects the environment protection objective, as it is qualified as revenue for the Environment Fund, as opposite with the earlier version of the special tax, qualified as revenue for the state budget. The amounts collected are managed by the Environment Fund Administration, in order to finance certain projects and programs on environment protection. With that nature, the pollution tax did not discriminate against imported goods and the taxpayer was able to bring the matter in courts if he might assess the depreciation in value calculated on the basis of a fixed rate of taxation did not reflect the reality.

Concerning the version of the Emergency Government Ordinance No. 50/2008, as amended by Emergency Government Ordinance No. 218/2008, a double discrimination occurs: on one hand, between second-hand vehicles already registered in a Member State of the European Union and second-hand vehicles registered in Romania, but also, on other hand, between a certain class of new vehicles, having the features of those produced in Romania, and the rest of new vehicles.

That sort of discrimination was brought by the legislator with a clear purpose of protecting the national industry, objective incompatible with the requirements of the EU area with free movement of goods, workers and capital.

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