CJEC, March 27, 1980, No 61-79

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

1. By order of 1 March 1979, which was received at the court registry on 13 April 1979, the Tribunale civile e penale, Milan, referred to the court under article 177 of the EEC treaty two questions on the interpretation of articles 13 (2) and 92 of the EEC treaty in relation to the right for taxpayers to obtain a refund of national charges incompatible with community law which they have previously paid.

2. These questions are worded as follows :

' ' (a) is the repayment of sums levied by way of customs charges (in the case in point, public health inspection charges) prior to their classification by the community institutions as charges having an effect equivalent to customs duties, the burden of which has already been passed on in turn to the purchasers of the imported products, compatible with the community rules, and in particular with the basic intention of articles 13 (2) and 92 of the EEC treaty?

(b) are the community rules and in particular articles 13 (2) and 92 of the EEC treaty opposed to the creation, by the prohibition and abolition of charges having an effect equivalent to customs duties, of a right in favour of individuals to request repayment of sums paid but not owed by them to the state, which for its part the state has illegally levied by way of a charge having equivalent effect, following the abolition of such charges by operation of community law but prior to their classification by the community institutions as charges having an effect equivalent to customs duties?

' '

3. They were raised during proceedings brought in 1978 between Denkavit Italiana SRL and the Italian finance administration with regard to a sum of lit 2 783 140 paid by that undertaking between 1971 and 1974 by way of public health inspection charges in accordance with article 32 of the Testo Unico no 1265 of 27 July 1934 on public health legislation (supplemento ordinanza alla gazzetta ufficiale of 9 August 1934, no 186).

4. In essence they concern the existence and scope of the duty of member states which have levied national charges or dues which have subsequently been held to be incompatible with community law to refund them at the request of the taxpayer.

5. In its written observations, the Italian government emphasizes the serious financial difficulties for the member states which would arise from the duty to repay traders national charges and dues which have been levied and paid in the common belief that they were in accordance with community law when, after a period of sometimes several years, an interpretation of community law given by the court of justice under article 177 of the treaty shows the authorities and the national courts an incompatible feature which was not evident and prompts them, by virtue of the fact that community law takes precedence, to refuse to apply the national provisions in question.

6. This is particularly so as regards a large number of charges, in particular public health inspection charges, which are levied at frontiers and whose effect equivalent to that of a customs duty prohibited by the treaty has only gradually become clear within the context of the interpretation of that concept given by the court of justice. The commission itself has realized that periods considerably longer than those originally provided for, in other words the end of the transitional period, were required for the purpose of bringing to light more than 500 types of due and ascertaining whether or not they were in the nature of charges having an effect equivalent to customs duties.

7. The Italian government also insists on the considerable differences which exist between the member states as regards the conditions in which actions may be brought contesting taxation which has been unlawfully claimed or levied or for the recovery of duties paid but not owed. It claims that these differences are such that in their turn they lead to ' ' a situation of imbalance ' ' which is to the disadvantage of traders and completely analagous to that which had been created by the improper levying of those sums.

8. The Italian government observes, finally, that the charges which were improperly levied have, by their very nature, been passed on in the prices by the traders who paid them so that they have ultimately been borne by the final consumer. To repay them to traders would constitute an unjust enrichment and would in fact result in an aid.

9. These considerations lead the Italian government to the conclusion that it is necessary to recognize the existence of a general principle of community law according to which the refunding of sums levied by way of duties which have been held to have an effect equivalent to customs duties may only be permitted with regard to amounts which have been levied after the judgment of the court of justice which has classified the type of charge in question as a charge having equivalent effect. The need for a principle of that nature has moreover, it claims, been recognized by the court of justice in its judgment of 8 April 1976 in case 43-75 (Gabrielle Defrenne v Societe Anonyme belge de Navigation Aerienne Sabena (1976) ECR 455); the result thereof is to consider that the right of individuals not to pay the charge having equivalent effect and the duty of the member state which has failed to fulfil its obligations under the treaty to refund that charge after it has been levied do not necessarily correspond.

10. According to Denkavit italiana SRL , on the other hand, the direct effect of the prohibition on the levying of charges having an effect equivalent to customs duties laid down in article 13 (2) of the treaty means that this effect, together with the rights flowing there from for individuals, operates from the date laid down in that provision for the abolition of those charges whatever, moreover, the date on which it is or has been found by a court of law that the charge in question is incompatible with community law, whether by the court of justice within the context of a procedure for a declaration that a member state has failed to fulfil its obligations under the treaty within the meaning of article 169 of the treaty or by the national courts as the result of an interpretation under article 177 of the scope of the community provision in question. This direct effect actually has more radical consequences in that any provision of national law which precludes or limits the enforcement of rights given to subjects by virtue of directly applicable provisions of community law must itself be considered to be incompatible with the community provision in question.

11. The questions which have been raised and which are closely inter-related concern the scope of two provisions of the treaty, article 13 (2) and article 92. They ask what the effect of those provisions is on the right of subjects to claim the repayment of national charges and on the related duty of member states to repay them if two conditions laid down by the national court have been fulfilled together or separately, in other words : (a) where the fact that those national charges are in the nature of charges having an effect equivalent to customs duties on imports and are consequently incompatible with the prohibition laid down in article 13 (2) has been established, after the end of the transitional period, only as a result of an interpretation given by the court of justice under article 177 of the treaty and (b) where the trader who paid those charges has transferred the burden thereof to the purchasers of the imported products.

12. Before examining the reply which must be given to the questions asked it is necessary to point out that the court of justice ruling under article 177 of the EEC treaty does not hold that a given national charge is incompatible with community law or that there is a corresponding prohibition on levying that charge in a particular case. Within the context of the judicial co-operation established by that provision it is for the national courts, applying the fundamental rule that community law takes precedence, to uphold the rights of subjects based, under the treaty itself, on the direct effect of the prohibition on charges having an effect equivalent to customs duties when disputes are brought before them by those concerned. It is necessary to reply to the questions asked taking that fact into account.

Article 13 (2) of the treaty

13. Article 13 (2) of the treaty provides as follows : ' ' charges having an effect equivalent to customs duties on imports, in force between member states, shall be progressively abolished by them during the transitional period. The commission shall determine by means of directives the timetable for such abolition. It shall be guided by the rules contained in article 14 (2) and (3) and by the directives issued by the council pursuant to article 14 (2) ' '.

14. According to the consistent case-law of the court expressed in particular in its judgments of 19 June 1973 (case 77-72, Carmine Capolongo v Azienda Agricola Maya (1973) ECR 611), 18 June 1975 (case 94/74, Industria Gomma Articoli Vari, Igav, v Ente Nazionale per la Cellulosa e per la carta, ENCC, (1975) ECR 699) and 5 February 1976 (case 87/75, Conceria, Daniele Bresciani v Amministrazione italiana delle finanze (1976) ECR 129), article 13 (2) comprises a clear and precise prohibition, as from the end of the transitional period at the latest, in other words as from 1 January 1970, and for all charges having an effect equivalent to customs duties, on the collecting of the said charges, which prohibition lends itself, by its very nature, to producing direct effects in the legal relations between member states and their subjects. As the court stated in its judgment of 9 March 1978 in case 106-77, Amministrazione delle finanze dello Stato v Simmenthal SPA (1978) ECR 629 to 643, rules of community law must be fully and uniformly applied in all the member states from the date of their entry into force and for so long as they continue in force.

15. Article 177 of the treaty provides that the court of justice shall have jurisdiction to give preliminary rulings, in particular, concerning the interpretation of the treaty and of acts of the institutions. The purpose of that jurisdiction is to ensure the uniform interpretation and application of community law, and in particular the provisions which have direct effect, through the national courts.

16. The interpretation which, in the exercise of the jurisdiction conferred upon it by article 177, the court of justice gives to a rule of community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction, are satisfied.

17. As the court recognized in its judgment of 8 April 1976 in case 43-75, Gabrielle Defrenne v Societe Anonyme Belge de Navigation Aerienne Sabena (1976) ECR 455, it is only exceptionally that the court may, in application of the general principle of legal certainty inherent in the community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.

18. Such a restriction may, however, be allowed only in the actual judgment ruling upon the interpretation sought. The fundamental need for a general and uniform application of community law implies that it is for the court of justice alone to decide upon the temporal restrictions to be placed on the interpretation which it lays down.

19. The conditions necessary for such restrictions are not fulfilled when the action brought before the national court follows from the prohibition on levying national charges having an effect equivalent to customs duties on imports since the court of justice recognized the general scope of that prohibition and its absolute nature as long ago as 1962, in other words before the end of the transitional period, in its judgment of 14 December 1962 in joined cases 2 and 3/62, commission of the European economic community v grand duchy of Luxembourg and Kingdom of Belgium (1962) ECR 425. In that judgment, the court stated as follows : ' ' the concept of ' a charge having equivalent effect ' to a customs duty, far from being an exception to the general rule prohibiting customs duties, is on the contrary necessarily complementary to it and enables that prohibition to be made effective ' '.

20. In the same way, in its judgment of 16 June 1966 in joined cases 52 and 55-65, federal republic of Germany v Commission of the European Communities (1966) ECR 159, the court rejected the argument that administrative dues may escape the concept of charge having an equivalent effect because they represent the consideration for a specific service provided by the administration. In its judgment of 10 December 1968 in case 7/68, Commission of the European communities v Italian republic (1968) ECR 423, the court confirmed that interpretation with regard to charges on Italian works of art and, in its judgment of 1 July 1969 in case 24-68, commission of the European communities v Italian republic (1969) ECR 193, with regard to statistical levies. Finally, in its judgment of the same date in joined cases 2 and 3-69, Sociaal Fonds Voor de Diamantarbeiders v SA ch. Brachfeld and sons and Chougol diamond co. (1969) ECR 211, the court stated that the concept of a charge having equivalent effect referred to in articles 9 and 12 of the EEC treaty includes any pecuniary charge, other than a customs duty in the strict sense, imposed on goods circulating within the community by reason of the fact that they cross a frontier, in so far as such charges are permitted by a specific provision of the treaty without it being necessary moreover to take into account the fact that the charge in question had social security objectives.

21. It follows from this settled case-law that both the member states and the traders concerned were, since before the end of the transitional period, in other words before the date on which the prohibition was generally and unconditionally effective under article 13 (2) of the EEC treaty, sufficiently informed of the scope of that prohibition for it to have been unnecessary to restrict its scope, in any case as regards the period after 1 January 1970.

22. It is necessary however to observe that where the consequence of a rule of community law, such as article 13 (2) of the treaty, is to prohibit, with the effects described above, the levying of national charges or dues, the safeguard of the rights conferred upon subjects by the direct effect of such a prohibition does not necessarily require a uniform rule common to the member states relating to the formal and substantive conditions to which the contesting or recovery of those charges is subject.

23. A comparison of the national systems shows that the problem of disputing charges which have been unlawfully claimed or the refunding of charges paid but not owed is settled in the various member states, and even within a single member state, according to the various kinds of taxes or charges in question. In certain cases, objections or claims of this type are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. It was with a view to the operation of such remedies that, in its judgments in the Rewe and comet cases of 16 December 1976 (cases 33 and 45-76, (1976) ECR 1989 and 2043 respectively), the court held that it was compatible with community law to lay down reasonable limitation periods in the interests of legal certainty which protects both the taxpayer and the administration concerned.

24. In other cases, claims for repayment of charges which were paid but not owed must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed. Such actions are available for varying lengths of time, in some cases for the limitation period laid down under the general law, with the result that member states involved may be faced with a heavy accumulation of claims when certain national tax provisions have been found to be incompatible with the requirements of community law.

25. It follows from the judgments of 16 December 1976 in the Rewe and comet cases, supra, that, applying the principle of co-operation laid down in article 5 of the EEC treaty, it is the courts of the member states which are entrusted with ensuring the legal protection which subjects derive from the direct effect to the provisions of community law. In the absence of community rules concerning the contesting or the recovery of national charges which have been unlawfully demanded or wrongfully levied, it is for the domestic legal system of each member state to designate the courts having jurisdiction and determine the procedural conditions governing actions at law intended to safeguard the rights which subjects derive from the direct effect of community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts are bound to protect.

26. It should be specified in this connexion that the protection of rights guaranteed in the matter by the community legal order does not require the grant of an order for the recovery of charges improperly levied granted in conditions such as would involve an unjustified enrichment of those entitled. There is therefore nothing, from the point of view of community law, to prevent national courts from taking account in accordance with their national law of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to the purchasers.

27. The Italian government has drawn attention to the limits which may lawfully be imposed on the exercise of the right to contest unlawful taxation or to claim repayment thereof and to the distinction which is made in this respect by national legislation between the conditions relating to the refusal to pay a tax or to contesting the levying thereof and those relating to the recovery of taxes which have already been paid previously. These considerations must however, as national taxation is involved, and in the present state of community law, be achieved within the context of national legislation in view of the limits mentioned above.

28. It is therefore necessary to give the following replies to the questions on the interpretation of article 13 (2):

(a) the direct effect of article 13 (2) of the EEC treaty implies that, from the end of the transitional period, applications directed against national charges having an effect equivalent to customs duties or claims for repayment of such charges may, according to the circumstances, be brought before the authorities and courts of member states, even in respect of the period before that classification of those charges follows from an interpretation given by the court of justice under article 177 of the treaty ;

(b) it is however for the legal order of each member state to lay down the conditions in which taxpayers may contest that taxation or claim repayment thereof, provided that those conditions are no less favourable than the conditions relating to similar applications of a domestic nature and that they do not make it impossible in practice to exercise the rights conferred by the community legal order ;

(c) there is nothing from the point of view of community law to prevent national courts from taking account, in accordance with their national law, of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to purchasers.

Article 92 of the treaty

29. By referring in its questions to article 92 of the treaty, the national court asks in substance whether the passing on by traders of national charges improperly levied in the conditions described by that court should not be considered to be an aid within the meaning of article 92 of the treaty and therefore incompatible with community law.

30. Under article 92 (1), ' ' any aid granted by a member state or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in as far as it affects trade between member states, be incompatible with the common market ' '.

31. This provision thus refers to the decisions of member states by which the latter, in pursuit of their own economic and social objectives, give, by unilateral and autonomous decisions, undertakings or other persons resources or procure for them advantages intended to encourage the attainment of the economic or social objectives sought. It does not apply to a duty to pay or repay sums which are caused by the fact that those sums were not payable by the person who paid them. It follows from this that a national tax system which enables the taxpayer to contest or claim repayment of tax does not constitute an aid within the meaning of article 92 of the treaty. Whether or not it is possible to recover tax because of that fact depends in fact upon the characteristics of the national legislation on the recovery of sums paid but not owed, in particular in the tax field.

32. It is therefore necessary to reply to the questions on the interpretation of article 92 of the treaty that the duty of the authorities of a member state to repay to taxpayers who apply for such repayment, in accordance with national law, charges or dues which were not payable because they were incompatible with community law does not constitute an aid within the meaning of article 92 of the EEC treaty.

33. The costs incurred by the Danish and Italian governments and by the Commission of the European communities, which submitted observations to the court, are not recoverable. Since the proceedings are, so far as the parties in the main action are concerned, in the nature of a step in the action before the national court, the decision as to costs is a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the Tribunale civile e penale, Milan, by order of 1 March 1979, which was entered on the court register on 13 April 1979, hereby rules :

1. (a) the direct effect of article 13 (2) of the EEC treaty implies that, from the end of the transitional period, applications directed against national charges having an effect equivalent to customs duties or claims for repayment of such charges may, according to the circumstances, be brought before the authorities and courts of the member states, even in respect of the period before that classification of those charges follows from an interpretation given by the court of justice under article 177 of the treaty.

(b) it is for the legal order of each member state to lay down the conditions in which taxpayers may contest that taxation or claim repayment thereof, provided that those conditions are no less favourable than the conditions relating to similar applications of a domestic nature and that they do not make it impossible in practice to exercise the rights conferred by the community legal order.

(c) there is nothing from the point of view of community law to prevent national courts from taking account, in accordance with their national law, of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to purchasers.

2. The duty of the authorities of a member state to repay to taxpayers who apply for such repayment, in accordance with national law, charges or dues which were not payable because they were incompatible with community law does not constitute an aid within the meaning of article 92 of the EEC treaty.