CELEX: 62002CJ0030
Recovery of sums paid though not due
Period of 90 days for the bringing of an action
Principle of effectiveness

By order of 27 December 2001, received at the Court on 4 February 2002, the Tribunal Tributário de Primeira Instância de Lisboa
(Fiscal Court of First Instance of Lisbon) referred to the Court for a preliminary ruling under Article 234 EC three questions
on the interpretation of Community law concerning recovery of sums paid though not due.
Those questions were raised in proceedings between Recheio – Cash & Carry SA (‘Recheio’) and the Fazenda Pública/Registo Nacional
de Pessoas Colectivas (Exchequer/National Register of Legal Persons) concerning repayment of registration fees paid by Recheio
pursuant to Article 3(4) of the Schedule of Fees of the National Register of Legal Persons, approved by Decree No 366/89 of
22 May 1989 (
Diário da República
I, series A, No 117, of 22 May 1989).
The dispute in the main proceedings and the relevant provisions
By notarial act of 5 November 1997, Recheio increased its share capital from PTE 100 000 000 to PTE 1 000 000 000.
On 4 March 1998 it registered that increase in capital in the National Register of Legal Persons. It was charged the sum of
PTE 2 251 000 by way of fees pursuant to Article 3(4) of the Schedule of Fees of the National Register of Legal Persons, which
it paid the same day.
On 11 July 2001 Recheio brought an action before the Tribunal Tributário de Primeira Instância de Lisboa for an order declaring
it to be entitled to repayment of the sum of PTE 2 250 000. It claimed that payment of the fees had been made in contravention
of Community law, in particular to Articles 10(c) and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412).
Recheio based its application on the Court of Justice’s case-law, according to which charges payable for entering an increase
in the share capital of a capital company in a national register of legal persons are, where they amount to a tax for the
purposes of the Directive, in principle prohibited under Article 10(c) thereof (Case C-56/98
Modelo
[1999] ECR I-6427, and Case C-134/99
IGI
[2000] ECR I‑7717, paragraph 25).
The Tribunal Tributário de Primeira Instância converted Recheio’s action into an action for annulment. In its view, the action
ought to have been brought within a period of 90 days running from ‘the expiry of the period prescribed for voluntary payment
of taxes’ pursuant to Article 123 of the Código de Processo Tributário (Code of Tax Procedure, the ‘CTP’), introduced by Decree-Law
No 154/91 of 23 April 1991 (
Diário da República
I, series A, No 94, of 23 April 1991), the corresponding article now being Article 102 of the Código de Procédimento e Processo
Tributário (Code of Tax Procedure and Proceedings, ‘the CTPP’), introduced by Decree-Law No 433/99 of 26 October 1999 (
Diário da República
I, series A, No 250, of 26 October 1999) and amended by Law No 15/2001 of 5 June 2001 (
Diário da República
I, series A, No 130, of 5 June 2001).
The Tribunal Tributário de Primeira Instância has pointed out that a period of 90 days for introducing an action for annulment
ought neither to be less favourable than the periods applicable to actions for repayment based on national law nor to make
it practically impossible or excessively difficult to exercise the rights conferred by the Community legal order.
It has found that the period in question applies to all acts that levy tax dues, whether their basis is Community or domestic
law.
In the circumstances, the Tribunal Tributário de Primeira Instância de Lisboa has decided to stay proceedings and to refer
the following questions to the Court of Justice for a preliminary ruling:
‘1)
Is it contrary to Community law for a Member State to fix a limitation period, for actions for repayment of taxes levied in
contravention of Community law, of 90 days reckoned from the expiry of the period for voluntary payment, so that the exercise
of the right to reimbursement is made excessively difficult?
2)
If so, what is the minimum period that may be considered compatible with the rule that exercise of that right must not be
made excessively difficult?
3)
What are the criteria to be used to fix that period?’
Concerning the application for the procedure to be reopened
By application lodged at the Court Registry on 23 January 2004, Recheio requested that the oral procedure should be reopened
in response to the Advocate General’s Opinion. Recheio argues that the Advocate General based his Opinion on a plainly inaccurate
reading of Portuguese law to the effect that the limitation period at issue was not 90 days but five and a half months.
On this point it must be borne in mind that the Court may, of its own motion, on a proposal from the Advocate General or at
the request of the parties, order that the oral procedure should be reopened in accordance with Article 61 of its Rules of
Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument
which has not been debated between the parties (see, inter alia, Case C-299/99
Philips
[2002] ECR I-5475, paragraph 20; Case C-184/01 P
Hirschfeldt
v
AEE
[2002] ECR I-10173, paragraph 30, and Case C-209/01
Schilling and Fleck-Schilling
[2003] ECR I-0000, paragraph 19).
Since neither of those two situations is a feature of this case, the Court considers that there is in the circumstances no
need to order that the oral procedure should be reopened. In consequence, the request for that reopening must be dismissed.
Concerning the questions referred for a preliminary ruling
By its questions, which may appropriately be examined together, the national court seeks in substance to ascertain whether,
in relation to a claim for repayment of charges levied in breach of Community law, it is contrary to the principle of effectiveness
of Community law for the time-limit extinguishing such a claim to be fixed at 90 days from the end of the period allowed for
voluntary payment of those charges.
It must be borne in mind that Member States are in principle required to repay charges levied in breach of Community law (Joined
Cases C-192/95 to C-218/95
Comateb and Others
[1997] ECR I-165, paragraph 20).
The Court has also observed on several occasions that the problem of the repayment of charges paid though not due is settled
in different ways 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 that kind 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. In
other cases, claims for repayment of charges paid but not due must be brought before the ordinary courts, mainly in the form
of actions for recovery of sums paid but not owed, such claims being available for varying lengths of time, in some cases
for the limitation period laid down under the general law (see, in particular, Case C-343/96
Dilexport
[1999] ECR I-579, paragraph 24).
This diversity between national systems derives mainly from the lack of Community rules on the refund of national charges
levied though not due. In such circumstances, it is for the domestic legal system of each Member State to designate the courts
and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights
which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing
similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively
difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Case C-231/96
Edis
[1998] ECR I-4951, paragraph 34).
As regards the latter principle, the Court has recognised that it is compatible with Community law to lay down reasonable
time-limits for bringing proceedings in the interests of legal certainty, which protects both the taxpayer and the administration
concerned (
Edis
, paragraph 35).
In this instance, Article 123 of the CTP, replaced by Article 102(1)(a) of the CTPP, lays down a limitation period of 90 days
for the introduction of an application for annulment of the act fixing the charges, reckoned from the voluntary payment of
those charges.
While
Edis
admittedly concerned a limitation period of three years from the date on which the charge was paid, that is to say, a distinctly
longer period than that at issue in the main proceedings in this case, it follows also from that judgment and the Court’s
settled case-law that the Member States remain at liberty to fix longer or shorter periods for repayment of sums paid though
not due, on condition that they do not render virtually impossible or excessively difficult the exercise of rights conferred
by the Community legal order.
In this instance, a period of 90 days reckoned from the end of the period allowed for voluntary payment of the charges must
be considered to represent a sufficient length of time to enable the taxpayer to take the decision to bring an action for
annulment in full awareness of all the facts and for that purpose to gather all the matters of fact or law required.
As is made clear in paragraph 41 of the Advocate General’s Opinion, that period can be called reasonable, in comparison with
the periods of similar duration fixed in the legal systems of several other Member States.
So far as concerns Recheio’s argument that that period is not acceptable inasmuch as the Portuguese Republic had not transposed
Directive 69/335 at the time the fees were paid, but only two years after
Modelo
, Community law does not prohibit a Member State which has not properly transposed Directive 69/335 from resisting actions
for repayment of duties levied in contravention of that directive by relying on a national limitation period. Moreover, the
fact that the Court of Justice has given a preliminary ruling on the interpretation of the provision of Community law in question
is as a rule immaterial in this respect (see, in particular,
Edis,
paragraphs 20 and 47).
As regards Recheio’s argument that the period at issue is not justified, in so far as there are available to the tax authorities
longer periods for the taking of a decision levying charges on taxpayers, no more need be stated than that that fact does
not mean that the period of 90 days at issue in the main proceedings is insufficient having regard to the principle of effectiveness.
Furthermore, the objectives with which the periods available to the tax authorities in exercising their fiscal powers are
consonant are generally different from those which apply to the period prescribed for the introducing of an action for annulment.
In the light of the foregoing, it must be held that a national limitation period such as that at issue in the main proceedings
does not render it excessively difficult or practically impossible to exercise the rights conferred by Community law.
In the circumstances, the answer to be given to the questions referred for a preliminary ruling by the Tribunal Tributário
de Primeira Instância must be that, with regard to a claim for repayment of charges levied in breach of Community law, the
principle of effectiveness of Community law does not militate against the fixing of a limitation period of 90 days reckoned
from the end of the period prescribed for voluntary payment of those charges.
Costs
The costs incurred by the Portuguese Government and by the Commission, which have submitted observations to the Court, are
not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before
the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Tribunal Tributário de Primeira Instância de Lisboa by order of 27 December
2001, hereby rules:
With regard to a claim for repayment of charges levied in breach of Community law, the principle of effectiveness of Community
law does not militate against the fixing of a limitation period of 90 days reckoned from the end of the period prescribed
for voluntary payment of those charges.
Jann
La Pergola
von Bahr
Silva de Lapuerta
Lenaerts
Delivered in open court in Luxembourg on 17 June 2004.
R. Grass
P. Jann
Registrar
President of the First Chamber
–
Language of the case: Portuguese.