The analyzed situation is the following:
A foreign company, established and registered in another EU Member State, is to make intra-Community acquisitions of goods in Romania. In this sense, the company is obliged to register in terms of VAT in Romania. Subsequently, the respective company decides to sell the respective goods locally, to a client Romanian legal entity, with 24% VAT.
The question is: from the point of view of the packaging tax regulated by Emergency Ordinance (OUG) 196/2005, who is the person obliged to declare and pay the equivalent value of the packaging introduced on the Romanian market for the first time?
Unfortunately, the legal regulations in this area are not very clear.
Thus, according to the provisions of OUG no. 196/2005 regarding the Environmental Fund and the provisions of the Ministry of Environment and Water Management (MMGA) Order no. 578/2006 for the approval of the Methodology for calculating the contributions and taxes due to the Environmental Fund, it is specified that the tax on packaging is due by the economic operators that introduce on the national market sales packaging and packaged goods.
According to the provisions of Government Decree (HG) no. 621/2005 on the management of packaging and packaging waste, the term “economic operators”, in the sense of regulations on packaging tax, refers to suppliers of packaging materials, manufacturers of packaging and packaged products, importers, traders, distributors, authorities public and non-governmental organizations. Thus, we find that no distinction is made regarding the nationality or residence of economic operators.
However, the provisions Government Decree (HG) no. 621/2005 on the management of packaging and packaging waste specifies that economic operators, Romanian legal entities, are responsible for the entire amount of waste generated by the packaging they introduce on the national market. Thus, there is a first limitation of the obligations regarding the packaging at the level of the Romanian legal entities. Given that the obligations of management of packaging and packaging waste are borne only by Romanian legal entities, as it appears from the text of the law above, we can consider that foreign legal entities are not subject to these obligations.
Corroborating the aforementioned provisions, we can conclude that the packaging tax must be paid by Romanian legal entities that purchase packaged goods from a foreign legal entity registered only for VAT purposes in Romania, even if the goods were actually introduced on the Romanian market by the foreign legal entity.