Dilexport Srl v Amministrazione delle Finanze dello Stato.

• Jurisdiction: European Union
• Celex Number: 61996CC0343
• ECLI: ECLI:EU:C:1998:174
• Docket Number: C-343/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 28 April 1998

Important legal notice

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61996C0343

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 28 April 1998. - Dilexport Srl v Amministrazione delle Finanze dello Stato. - Reference for a preliminary ruling: Pretura circondariale di Bolzano - Italy. - Internal taxes contrary to Article 95 of the Treaty - Recovery of sums paid but not due - National rules of procedure. - Case C-343/96.

European Court reports 1999 Page I-00579

Opinion of the Advocate-General

1 The Pretore di Bolzano (Italy) has referred to the Court of Justice for a preliminary ruling six questions on the impact of the provisions and principles of Community law on the national legal rules - Italian Law No 428 of 29 December 1990 (hereinafter `Law No 428') - (1) which govern the repayment of certain taxation improperly levied by the Italian administration.

Facts, procedure and preliminary questions

2 The plaintiff company paid the Italian administration on 12 March 1988 the sum of ITL 6 945 756 in respect of consumption tax for a consignment of bananas imported through the Brenner customs office.

3 Taking the view that the tax paid was not due, being incompatible with Community law, in 1991 Dilexport Srl submitted a request to the administration for repayment of the relevant amount. Since its request was not acceded to, it brought proceedings before the Pretore di Bolzano, who had territorial jurisdiction, for a payment order under Article 633 of the Code of Civil Procedure to secure reimbursement.

4 The Pretore, as a preliminary to giving judgment, referred the following questions to the Court of Justice for a preliminary ruling:

`1. Must Community law be interpreted as precluding the adoption by a Member State of a provision such as Article 29 of Italian Law No 428 of 29 December 1990 which makes the repayment of charges levied in breach of Community law subject to limitation periods or time-limits and to conditions as to proof which are different from and more restrictive than those laid down in the general rules of civil law? In particular, with regard to the principle that the procedural conditions for exercising the right to reimbursement established by national law "may not be less favourable than those relating to similar actions of a domestic nature", what is to be understood by the expression "similar actions of a domestic nature"?

2. Do the fundamental principles of the Community order preclude the introduction by a Member State - in a limited manner and with reference only to a specific sphere consisting of a homogenous category of fiscal levies made up in particular of charges linked to the Community order - of special derogating provisions to restrict and limit the right to recovery of sums unduly paid, thus derogating from the general conditions for recovery of sums unduly paid laid down in Article 2033 of the Civil Code? In particular, may the principle of non-discrimination be understood in a restrictive sense, and may it thus be considered that a provision of a Member State such as the second paragraph of Article 29 of Law No 428 of 29 December 1990 complies with that principle, simply because the conditions laid down therein for reimbursement of fiscal charges linked to Community law, although restrictive in comparison with the general rules of ordinary law, are however less onerous in comparison with the special conditions for reimbursement laid down in the third paragraph of Article 29?

3. Do the abovementioned fundamental principles of the Community order preclude the adoption by a Member State - after numerous judgments of the Court declaring various charges relating to customs duties on imports, manufacturing taxes, consumer taxes, sugar premium and State taxes to be incompatible with Community law - of a procedural provision such as Article 29 of Law No 428, which specifically reduces the possibilities of bringing proceedings for recovery of charges which were wrongly levied in breach of Community law?

4. Is such a law as that - supposedly introduced in order to bring national law into line with the precepts of the Court of Justice - which was passed three- and-a-half years late according to the Court judgments in question, thus further unjustly enriching the State responsible for the delay, compatible with Community law and, in particular, with the Court's findings as to unacceptable requirements of proof in Case 199/82 San Giorgio, cited above? In particular, are the interpretation and application of Article 29 compatible with Community law, on the basis of the assumption that, "it being a well-known fact that consumer taxes are passed on", presumptive evidence is deemed to be sufficient proof of passing on and therefore for the claim for reimbursement to be dismissed?

5. In consequence, is it compatible with Community law for the national court or its expert witness to establish that charges have been passed on, relying on those mere presumptions, which are claimed to be evidence open to assessment by the court, thus systematically excluding applications for reimbursement, as is happening in practice, with the result that the debtor Administration never acknowledges that it has to make repayment?

6. May a rule such as that laid down in the fourth and eighth paragraphs of Article 29, establishing procedural formalities (for example, the requirement to notify particular departments of the debtor authority) which were never contemplated in previous cases of reimbursement considered under the relevant general rules, be introduced and may it be interpreted with retrospective effect?'

The national legislative context and the Community legislative context

5 Article 29 of Law No 428, (2) provides under, the heading `Repayment of taxes considered incompatible with Community law', as follows:

- Article 29(1) extends the five-year time-limit laid down by Article 91 of the Consolidated customs legislation to all actions for recovery of amounts paid in connection with customs operations; nevertheless, it reduces that time-limit to three years - and the limitation period prescribed by Article 84 of that consolidated legislation - as from the 90th day following the entry into force of the Law; (3)

- Article 29(2) provides that `import customs duties, manufacturing taxes, consumption taxes, the sugar price supplement and State duties levied under national provisions incompatible with Community provisions shall be repaid, save where the burden thereof has been passed on to others';

- Article 29(4) provides that claims for repayment of the duties and taxes referred to in paragraphs 2 and 3 above must, where the sum concerned has contributed to the income of the undertaking, also be notified to the tax office which received the tax return for the year in question, failing which it shall be inadmissible

- Article 29(7) provides that Article 29(2) is to apply even where the reimbursement relates to amounts paid before the entry into force of the Law (27 January 1991).

- Article 29(8) provides that paragraph 4 is to apply from the fiscal year in which the Law enters into force.

6 The special consumption tax on bananas from other Member States, which the plaintiff company paid and for which it seeks reimbursement, was declared incompatible with Community law by the Court of Justice in its judgment of 7 May 1987 in Commission v Italy, (4) since it infringed the second paragraph of Article 95 of the EEC Treaty. The judgment of the same date in Co-Frutta, (5) reiterated that that provision precluded a consumer tax imposed on certain imported fruit where it may protect domestic production of fruit and that Article 95 of the EEC Treaty covers all products coming from Member States, including products originating in non-member countries which are in free circulation in the Member States.

Consideration of the questions

7 In considering the questions, I shall group them according to their content, even though this does not wholly coincide with the order in which they are set out in the order for reference:

(a) first, the applicability of two sets of legal rules to the right to secure reimbursement of taxes paid but not due (first and second questions);

(b) secondly, problems of time - namely, limitation periods and time-limits and retroactivity - arising from the application of Law No 428 to repayment of the tax (third question);

(c) third, reliance on presumptions as evidence in deciding whether the tax has been passed on to third parties (fourth and fifth questions);

(d) finally, the requirement that claims for repayment be notified to the tax administration (sixth question).

The first and second questions

8 The first and second questions submitted by the national court relate to the content of the internal rule as such - that is to say, disregarding its temporal effect - and the possibility that it may be contrary to Community law. My analysis of them must logically, in my view, come before consideration of the issue of the retroactivity or otherwise of that rule, with which the third question is concerned.

9 Article 29(1) of Law No 428, transcribed above, reflects a clear legislative intention: to apply the same five-year time-limit imposed by the customs legislation to every kind of claim and right of action for recovery of sums paid in respect of customs operations. So far as is relevant here, it is of little importance that the expression used in the Law (`the five-year time-bar ... shall be deemed to apply') is merely interpretative or is substantive in its effect.

10 The national court asks whether it is compatible with Community law for a provision to lay down that time-limit for the refund of sums unduly paid, where the refund arises as a result of infringement of a Community provision, whereas similar actions for recovery of sums improperly paid under the general law (Article 2033 of the Codice Civile) are subject to a limitation period of...