European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The right to reimbursement covers all the sums paid from the implementation of the national measure unlawfully applied. The debtor Member State may however rely on the principle of legal certainty in order to limit its obligation to repay the sums paid from the judgment deciding that the measure is unlawful . Interest granted on repayment of a tax cannot however be limited to that accruing from th …

Extent of reimbursement

The right to reimbursement covers all the sums paid from the implementation of the national measure unlawfully applied. The debtor Member State may however rely on the principle of legal certainty in order to limit its obligation to repay the sums paid from the judgment deciding that the measure is unlawful . Interest granted on repayment of a tax cannot however be limited to that accruing from the day following the date of the claim for repayment of that tax .

According to the theory of unjust enrichment, the Member State may also be exempted from its obligation to repay where the cost of the tax has been passed on to another operator, whether the end consumer or an operator located downstream . Passing on the amount of taxes to the end consumer through the selling price thus limits the right to repayment of the trader who would otherwise receive the repayment of a tax eventually borne by its own customers. However, the passing on of a tax in whole to the consumer, as a result of the tax being incorporated in the price of goods, does not necessarily neutralize the economic effects of taxation on the taxpayer who may suffer damage as a result of a price increase and correlative fall in the volume of his sales . National legislation which opposes the repayment of a tax on the sole ground that such tax has been integrated in the selling retail price charged and therefore passed on to third parties, is therefore incompatible with European law .  Additionally, the possible infringement of the obligation, stemming from national legislation, to pass on the charge onto the final price of the product concerned, which has its basis in EU law, is irrelevant and cannot therefore be refused for a reason based on national law: the taxpayer, who in fact pays the charge having an equivalent effect, must be able to obtain reimbursement of the sums which it has paid by way of that charge, even in a situation where the payment mechanism for the charge has been designed in national legislation so that the charge is passed on to the consumer . 

Evidence that the tax unduly received was not passed on to other operators cannot be placed on the person who claims his right to repayment. National legislation which makes the action for repayment subject to the proof that the tax was not passed on is contrary to the principle of effectiveness . Lastly, the fact that there is a legal obligation for the taxpayer to incorporate the charge in the cost price does not mean that the entire charge has been passed on, even where failure to comply with that obligation carries a penalty. The question whether a tax has or has not been passed on, in part or in whole, is a question of fact which falls within the jurisdiction of the national court which may freely assess the evidence .

See for an example regarding dock dues: Case C-163/90 Administration des douanes et droits indirects v Legros and others [1992] ECR I-4625, LawLex200900000643JBJ.

Case C-565/11 Mariana Irimie, LawLex201300001555JBJ.

See Case 68/79 Just [1980] ECR 501, LawLex200900002032JBJ (on discriminatory internal taxation); Case 199/82 Amministrazione delle finanze dello Stato v San Giorgio [1983] ECR 3595, LawLex200900001643JBJ (on taxes having an effect equivalent to customs duties); See, also, Case C-147/01 Weber's Wine World and others [2003] ECR I-11365, LawLex200900000576JBJ: which indicates that the State remains bound to repay the amount not passed on where the tax has been passed on only in part.

Case C-441/98 Michailidis [2000] ECR I-7145, LawLex200900002190JBJ.

Case C-147/01 Weber's Wine World and others [2003] ECR I-11365, LawLex200900000576JBJ.

Case C-76/17 SC Petrotel-Lukoil SA, Judgment of 1 March 2018, LawLex201800000352JBJ.

Case C-343/96, Dilexport v Administration des finances italienne [1999] ECR I-579, LawLex200700001900JBJ.

Case C-192/95 Comateb and others v Directeur général des douanes et droits indirects [1997] ECR I-165, LawLex201100000436JBJ.

European Business Law

66. Extent of reimbursement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

66. Extent of reimbursement

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise