SA Les Fils de Jules Bianco and J. Girard Fils SA v Directeur Général des douanes et droits indirects.

• Jurisdiction: European Union
• Celex Number: 61985CC0331
• ECLI: ECLI:EU:C:1987:391
• Docket Number: 376/85,331/85,,378/85
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 29 September 1987

61985C0331

Opinion of Mr Advocate General Sir Gordon Slynn delivered on 29 September 1987. - SA Les Fils de Jules Bianco and J. Girard Fils SA v Directeur Général des douanes et droits indirects. - References for a preliminary ruling: Cour de cassation - France. - Recovery of undue payment - Evidence that charges on the price of goods have not been passed on to other persons. - Joined cases 331/85, 376/85 and 378/85.

European Court reports 1988 Page 01099
Swedish special edition Page 00387
Finnish special edition Page 00393

Opinion of the Advocate-General

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My Lords,

French Decree No 78-903 of 30 August 1978 imposed a "parafiscal charge" on regular and super petrol marketed in France with effect from 2 September 1978 to 31 December 1978, and French Decree No 78-1043 of 2 November 1978 imposed a similar charge on domestic heating oil marketed in France with effect from 3 November 1978 to 31 December 1978 . The French companies Les Fils de Jules Bianco and J . Girard Fils are engaged in the sale, importation and distribution of oil and petrol . They paid monies to the French tax authorities by way of such parafiscal charges, but subsequently brought three separate actions before the French courts challenging the validity of the charges and seeking reimbursement of the monies paid . Both at first instance and on appeal their claims ( without there being any discussion of the merits ) were held inadmissible . This was on the basis that they had not shown that the parafiscal charges had not been passed on to purchasers from them pursuant to Article 13 ( V ) of the Finance Law for 1981 ( Law No 80-1094 of 30 December 1980 ) which provides :

"Where a person has unduly paid indirect taxes governed by the General Tax Code or national duties and charges collected according to the procedures of the Customs Code, he may, except in cases of substantive error, only obtain repayment if he can demonstrate that the duties were not passed on to the buyer .

This provision applies to claims submitted in accordance with Article 1931 of the General Tax Code and Article 352 of the Customs Code, including claims submitted before the date on which this law enters into force ."

The companies appealed further to the Cour de cassation which, by judgments of 9 October 1985 received at the Court Registry on 8, 27 and 28 November 1985, requested a preliminary ruling in each case on the following question :

"Must the Treaty establishing the European Economic Community be interpreted as meaning that the French Republic cannot make the repayment of national charges levied contrary to Community law conditional upon the production of proof that those charges have not been passed on to the purchasers of the products that were subject to the charges and place the burden of adducing such negative proof entirely upon natural or legal persons claiming repayment?

Does the answer depend upon whether the Law of 30 December 1980 has retroactive effect, the nature of the charge at issue and whether the market is free, regulated or monopolistic, either wholly or in part?"

The three cases were joined by order of the Court of 15 January 1986 .

No question is raised as to whether this charge was contrary to Community law and the reference must proceed on the assumption that the charge was imposed in breach of the Treaty .

The Commission, the United Kingdom and Italy have intervened, though with different emphasis, to support the companies in saying that Article 13 ( V ) in that it imposes a negative burden of proof on the claimant and in that it requires documentary evidence is contrary to Community law; France alone contends that the article is compatible with Community law .

The Court was told at the hearing that changes had been made to French law, apparently by the Corrective Finance Law of 1986 ( No 86-1318 of 30 December 1986 ) Article 24 of which provides that Article 1965A of the General Tax Code shall read : "Where a person has unduly paid indirect duties governed by the present Code, he may obtain repayment unless the duties were passed on to the buyer", and that Article 352 bis of the Customs Code shall read similarly . The reference, however, is concerned only with Article 13 ( V ) of the Finance Law for 1981 and any amendments introduced in 1986 do not fall for consideration .

It is said by the parties and the Commission, and not contested, that Article 13 ( V ) of the Finance Law for 1981 was introduced following the Court' s judgment in Case 168/78 Commission v France (( 1980 )) ECR 347 in which the Court held that tax imposed on certain imported spirits was contrary to Article 95 of the EEC Treaty . To avoid automatic refunds in a large number of...