Opinion of the Advocate General — ECLI:EU:C:1998:134
Date: 1998-03-26
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Italy

summary payment order, requiring the 
debtor, albeit on a provisional basis, to pay the sum claimed. 
I - 4955 
OPINION OF MR RUE-JARABO — CASE C-231/96 
in the judgment in Ponente Carni (paragraphs 
5 to 11): 
— The governmental administrative charge 
(hereinafter 'the administrative charge') for 
the registration of companies in the reg­
ister of companies introduced by Decree 
N o 641 of the President of the Republic 
of 26 October 1972 (GURI N o 292 of 11 
November 1972, Supplement N o 3) applies 
to the recordal in the register of compa­
nies of the principal measures concerning 
the existence of companies. The register is 
kept by court registrars pending the cre­
ation of the register of companies pro­
vided for by Article 2188 of the Civil 
Code. 
— The amount of the administrative charge 
and the period it covers, in so far as it 
applies to the registration of companies' 
instruments of incorporation, has been 
repeatedly amended. 
— The amount of the charge for registration 
was increased from ITL 81 000 to ITL 
5 000 000 for public limited companies and 
limited partnerships with a share capital, 
to ITL 1 000 000 for private limited com­
panies and to ITL 100 000 for other com­
panies by Article 3(18) of Decree-Law N o 
853 of 19 December 1984 (GURI No 347 
of 19 December 1984), converted into Law 
N o 17 of 17 February 1985 (GURI No 41 
bis of 17 February 1985). 
— Decree-Law N o 173 of 30 May 1988 
(GURI No 125 of 30 May 1988) increased 
those amounts. Article 1 of Law No 291 
of 26 July 1988 (GURI N o 175 of 27 July 
1988), which converted that decree into a 
law, increased the amount of the charge to 
ITL 2 500 000 for private limited compa­
nies and to ITL 500 000 for other compa­
nies. For public limited companies and 
limited partnerships with a share capital 
the Law set five different charges ranging 
from ITL 9 000 000 to ITL 120 000 000 
according to the amount of the authorised 
capital. 
— Article 36(8) of Decree-Law No 69 of 2 
March 1989 (GURI N o 51 of 2 March 
1989), converted, after due approval, into 
Law N o 154 of 27 April 1989 (GURI N o 
99 of 29 April 1989), set the amount of 
the charge at ITL 12 000 000 for public 
limited companies and limited partner­
ships, at ITL 3 500 000 for private limited 
companies and ITL 500 000 for other com­
panies. 
— The abovementioned Law N o 154 added 
a paragraph 8 bis to Article 36 of the 
Decree-Law of 2 March 1989, the result 
of which is that the amount of the charge 
for 1988 is ITL 15 000 000 for public lim­
ited companies and limited partnerships 
with a share capital, ITL 3 500 000 for 
private limited companies and ITL 500 000 
for other companies. Those provisions 
replaced the aforesaid provisions of Law 
No 291 of 26 July 1988. 
I - 4956 
EDIS v MINISTERO DELLE FINANZE 
— As regards the period covered by the 
charge, the abovementioned Decree-Law 
N o 853 provides that the charge is pay­
able not only when the company's instru­
ments of association are entered on the 
register but also on 30 June of each sub­
sequent calendar year. 
8. Of the national provisions governing the 
right to bring proceedings for recovery of 
taxes paid but not due, the following are rel­
evant to this case: 
(a) Article 13(2) of Decree N o 641/72, 
according to which '[t]he taxpayer may 
request repayment of charges wrongly 
paid within a period of three years reck­
oned from the date of payment, failing 
which his action shall be barred ...'. 
(b) The same three-year time-limit applies to 
actions for the repayment of other public 
charges, of a customs nature, as provided 
by Article 29(1) of Law N o 428/1990 in 
conjunction with Article 91 of the Con­
solidated version of the provisions relating 
to customs duties (Decree N o 43 of the 
President of the Republic of 23 January 
1973). The latter laid down a time-limit 
of five years which, as from the entry 
into force of that law, must be regarded 
as applying to all claims and proceedings 
which may be brought for the reimburse­
ment of sums paid in relation to customs 
operations. 6 
9. According to the general provisions of 
national law, rights of action for proceedings 
between private individuals to recover sums 
unduly paid are not subject to any time-limit 
other than the ordinary limitation period of 
10 years laid down by Article 2946 of the 
Civil Code ('save where otherwise provided, 
rights shall be time-barred upon the expiry of 
10 years'). 
10. The Suprema Corte di Cassazione (Com­
bined Chambers) held in judgment N o 
3458/96 of 23 February 1996 that any request 
for a refund of the charge at issue must be 
deemed to be governed by Article 13(2) of 
DPR 641/1972. 
11. The debate provoked by that judgment 
involved the following two opposing views: 
(a) The view that the objection that there 
was a time-bar under Article 13(2) of 
DPR 641/1972 should be rejected '... on 
the ground that the idea that there was an 
6 — The application of Law No 428/90 to claims for the reim­
bursement of certain taxes is the subject of questions sub­
mitted for a preliminary ruling in Cases C-228/96 Aprile 11 
and C-343/96 Dilexport. 
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OPINION OF MR RUIZ-JARABO — CASE C-231/96 
error was incorrect since the payment 
could not be regarded as having been 
made by mistake because there was no 
misrepresentation of matters of fact o r 
law, but on the contrary it could be con­
ceded that there was no power of taxa­
tion vested in the State, having regard to 
the pre-existing Community legislation'. 
That was the view put forward by the 
Italian court in the judgment appealed to 
the Court of Cassation. 
(b) The view that 'Article 13 covers all charges 
wrongly paid, whatever the cause of the 
mistaken payment, including therefore die 
charges at issue'. That was the defence of 
the Italian Tax Administration. 
12. The Court of Cassation, accepting the 
view of the Administration, stated as follows: 
'... Under the present tax system, the repay­
ment of charges wrongly paid is subject to 
the three-year time-limit, reckoned from the 
date of payment, and that regime is not inap­
plicable to the charge involved here, the issue 
being one of non-application of domestic law 
having regard to Community law, which takes 
precedence, but that does not mean that the 
Italian law is subject to derogation or is incom­
patible. 
In particular, concerning the limits on the 
right to reimbursement of wrongly paid 
charges, the Constitutional Court gave its 
views in its judgment N o 56 of 24 February 
1995, in which it declared unconstitutional 
Article 12 of DPR N o 641 of 26 October 
1972, in so far as it does not provide, for dis­
putes of the kind referred to in Article 11 of 
that decree, for actions to be admissible even 
where there have been no prior administra­
tive proceedings. According to constitutional 
case-law, the provisions of Article 12 lacked 
any rationale such as to justify the limitation 
imposed on the principle laid down in Article 
24 of the Constitution. The same cannot be 
said of a provision of a general nature, like 
Article 13(2), which imposes a three-year 
time-limit for the refund of charges paid under 
a mistake and, therefore, wrongly paid to the 
State by the taxpayer. 
That provision is in fact formulated in terms 
such as to cover all charges paid by mistake, 
whatever the cause of the undue payment, so 
that it can be recognised that Article 13 lays 
down a time-limit of a general nature for all 
applications for refunds, in accordance with 
the legislative intention that charges payable 
in return for government measures are always 
subject to a time-bar as far as claims for 
repayment are concerned. 
The view must be rejected that, in this case, 
the payment is not mistaken in that no state 
of mind arose as a result of misrepresentation 
of matters of fact or law, thereby affecting 
volition: the payment was made in full knowl-
I - 4958 
EDIS v MINISTERO DELLE FINANZE 
edge and with the intent of complying with a 
tax provision. In other words, the contested 
judgment does not deny the existence of an 
error concerning the basis of the fiscal obliga­
tion, which would render the payment 
improper, in other words not due, but con­
siders that the time-bar, even when laid down 
in general terms for all undue payments, is 
inoperative owing to the unlawfulness of the 
provision imposing the tax contrary to Com­
munity law. It having been held that there 
was no lack of power of taxation and that the 
court is merely disapplying domestic law 
which conflicts with Community law, the 
principle that a time-bar applies where there 
is a delay in seeking reimbursement of charges 
paid unduly or by mistake takes full effect 
and is therefore applicable to the circum­
stances of this case.' 
The first preliminary question 
13. By its first question, the Tribunale Civile 
di Genova seeks essentially to ascertain 
whether, from the Community law stand­
point, it is permissible for national legislation 
to result in a limitation on the temporal effects 
of a judgment of the Court of Justice. The 
national legislation referred to by the national 
court is Article 13(2) of DPR 641/1972, which 
I have set out above, and the judgment of the 
Court of Justice referred to by the national 
court is Ponente Carni. 
14. The answer to this question calls for a 
brief analysis, first, of the features common 
to the decisions of the Court of Justice on 
limitation of the temporal effects of its judg­
ments and, second, of the temporal effects of 
judgments delivered in response to requests 
for interpretation by way of preliminary 
ruling. On the basis of that analysis, I shall be 
able to conclude that application of the Italian 
provision does not constitute a temporal limi­
tation on the effects of the judgment in Ponente 
Carni, 
(i) Temporal limitation of the effects of judg­
ments of the Court of Justice 
15. Since its judgment of 8 April 1976 in 
Defrenne, 7 the Court of Justice has on various 
occasions expressed views as to the limitation 
of the temporal effects of its judgments. 8 In 
them it has endeavoured to reconcile the 
requirements of the principle of legal cer­
tainty with those which, in principle, derive 
from the incompatibility of a national provi­
sion with Community law. 
7 — Case 43/75 [1976] ECR 455. 
8 — The same approach has often been used by constitutional or 
para-constitutional courts when faced with problems deriving 
from a declaration of unconstitutionality of laws. See, in that 
connection, the article by E. Garcia de Enterría, Tin paso 
importante para el desarrollo de nuestra justicia constitu­
cional: la doctrina prospectiva en la declaración de ineficacia 
de las leyes inconstitucionales'. Revista Española de Derecho 
Administrativo, 1989, N o 61, page 5 et seq. 
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OPINION OF MR RUIZ-JARABO — CASE C-231/96 
16. The legal basis for its decisions is Article 
174 of the EC Treaty as far as direct actions 
for annulment brought against Community 
provisions and measures are concerned. 9 That 
article confers on the Court of Justice a wide 
power of appraisal which enables it 'if it con­
siders this necessary' to uphold legal situa­
tions which would otherwise be invalid 
because they derived from a regulation which 
had been declared void. 
17. To safeguard the 'necessary consistency' 
between judgments in actions for annulment 
and those giving preliminary rulings as to the 
validity of Community provisions, the Court 
of Justice has extended to the latter the power 
conferred on it by Article 174. This is logical, 
since a judgment of the Court of Justice 
which, by way of preliminary ruling, finds 
that a Community measure is invalid has, in 
principle, the same retroactive effect — ex 
tunc — as a judgment of annulment: the pos­
sibility of limiting that retroactive effect must, 
therefore extend to both types of proceed­
ings. 10 
18. Even without that legislative support and 
despite the lack of similar provisions in Article 
177 of the Treaty, the Court of Justice has 
taken an analogous approach regarding inter­
pretative preliminary rulings. It thereby rec­
ognises that it may be necessary, in excep­
tional cases, to limit the temporal effects of 
interpretative judgments as well in order to 
uphold certain requirements of legal certain­
ty. 1 1 In any event, it is a power vested only 
in the Court of Justice and not in any other 
judicial authority. 
(ii) The temporal effect of interpretative pre­
liminary rulings 
19. In principle, a judgment delivered by the 
Court of Justice by way of interpretative pre­
liminary ruling would mean — subject to the 
limitations which I shall go on to consider — 
that the national court would be obliged to 
apply the Community provision in accord­
ance with the interpretation laid down in that 
judgment and with its full effect even to legal 
relationships which came into being before 
the judgment was delivered. 
9 — 'If the action is well founded, the Court of Justice shall dedare 
the act concerned to be void. In the case or a regulation, how­
ever, the Court of Justice shall, if it considers this necessary, 
state which of the effects of the regulation which it has 
declared void shall be considered as definitive.' 
10 — Case C-228/92 Raquette Frères [1994] ECR I-1445, para­
graph 17. 
11 — Thus, paragraph 30 of Case C-163/90 Legros and Others 
[1992] ECR I-4625 states: 'It should be observed that it is 
only exceptionally that the Court may, in application of the 
general principle of legal certainty inherent in the Commu­
nity legal order, be moved to restrict for any person con­
cerned the opportunity of relying upon the provisions thus 
interpreted with a view to calling in question legal relation­
ships established in good faith.... In determining whether or 
not to limit the temporal effect of a judgment it is necessary 
to bear in mind that although the practical consequences of 
any judicial decision must be weighed carefully, the Court 
cannot go so far as to diminish the objectivity of the law and 
compromise its future application on the ground of the pos­
sible repercussions which might result, as regards the past, 
from a judicial decision (judgment in Case 24/86 Blaizot 
[1988] ECR 379, paragraphs 28 and 30).' 
I - 4960 
EDIS v MINISTERO DELLE FINANZE 
20. Indeed, as the Court of Justice held in its 
judgments of 27 March in Denkavit Ital­
iana 12 and of 11 August 1995 in Roders and 
Others, 13 'the interpretation which, in the 
exercise of the jurisdiction conferred on it by 
Article 177 of the Treaty, 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'. More concisely, 
in its judgment in Goldsmiths of 3 July 1997, 
the Court of Justice referred to the principle 
'that a ruling on interpretation takes effect as 
from the date on which the rule interpreted 
came into force'. 14 
21. In other words, given that the interpreta­
tion of a Community provision adds nothing, 
from the point of view of temporal effective­
ness, to the validity of that provision, judg­
ments of the Court of Justice which perform 
that function may be applied to legal situa­
tions of any kind governed by the Commu­
nity provision which has been interpreted, 
regardless of its temporal aspects. 
22. That does not mean, however, that judg­
ments of the Court of Justice on points of 
interpretation have immoderate effects on 
every kind of legal relationship previously 
created, whether or not it has come to an end. 
The case-law cited above itself, 
(a) although affirming that 'the [Community] 
rule thus interpreted can, and must, be 
applied by the courts even to legal rela­
tionships arising and established before 
the judgment ruling on the request for 
interpretation ...', 
(b) then goes on to emphasise that that power 
and duty arise 'provided that in other 
respects the conditions for bringing before 
the courts having jurisdiction an action 
relating to the application of that rule are 
satisfied'. 
23. That dictum — which, moreover, was 
recently confirmed in the judgments of 15 
December 1995 in Bosman 15 and of 13 Feb­
ruary 1996 in Bautiaa and Société Française 
Maritime 16 — accurately describes the tem­
poral effects of judgments giving an interpre­
tation in response to requests for preliminary 
rulings. 
24. Such judgments, therefore, even when, 
indirectly, they find that a national provision 
is incompatible with Community law, are not 
endowed with a kind of supra-temporal effect 
such that the various national situations, both 
factual and legal, to which they might apply 
can be disregarded. On the contrary, their 
effects must apply to those legal situations 
12 — Case 61/79 [1980] ECR 1205, paragraph 16. 
13 — Joined Cases C-367/93 to C-377/93 [1995] ECR I-2229, 
paragraph 42. 
14 — Case C-330/95 [1997] ECR I-3801, paragraph 28. 
15 — Case C-415/93 [1995] ECR I-4951, paragraph 141. 
16 — Joined Cases C-197/94 and C-252/94 [1996] ECR I-505, 
paragraph 47. 
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OPINION OF MR RUIZ-JARABO — CASE C-231/96 
which, under domestic law, are still open to 
challenge or review and which, accordingly, 
may be the subject of a decision of a judicial 
authority. 
25. That conclusion is fully applicable to the 
exercise of the right to secure repayment of 
taxes paid but not due where it derives from 
the incompatibility of the domestic taxation 
with Community law. It has been consistently 
emphasised, in a line of case-law starting with 
the Rewe 17 and Comet 18 judgments, that the 
Member States are under an obligation to 
repay those taxes, as the counterpart of the 
taxpayer's right to have it refunded, 19 and 
that the exercise of that right is subject to the 
ordinary conditions forming part of the legal 
order of each State. 
26. Summarising the approach taken in the 
case-law, the judgment of 29 June 1988 in 
Deville, 20 stated: 'In the absence of Commu­
nity rules concerning the refunding of national 
taxes which have been wrongly levied, it is 
for the domestic legal system of each Member 
State to designate the courts having jurisdic­
tion and to determine the procedural condi­
tions governing actions at law intended to 
ensure the protection of the rights which citi­
zens derive from the direct effect of Commu­
nity law, it being understood that such condi­
tions cannot be less favourable than those 
relating to similar actions of a domestic nature, 
and may not make it impossible in practice to 
exercise rights which the national courts have 
a duty to protect.' 21 
27. One of the requirements to which the 
exercise of rights of action of this kind may 
be subject is, precisely, the one relating to 
time. National law may lay down periods of 
varying lengths after which rights lapse, or 
time-limits for bringing actions for the repay­
ment of taxes wrongly levied. If those time-
limits are not contrary to Community law — 
and the other two preliminary questions are 
concerned with this point — they can apply 
to all kinds of claims of that type, without 
that fact amounting, legally, to a limitation of 
the temporal effects of the judgments of the 
Court of Justice which brought to light the 
incompatibility of a national tax with Com­
munity law. 17 — Case 33/76 [1976] ECR 1989. 
18 — Cise 45/76 [1976] ECR 2043. 
19 — The basis of this right, in the case of repayment of national 
taxes incompatible with Community law. is to be found in 
various rules or principles, to some of which reference has 
been made in judgments of the Court of Justice. Thus men­
tion has been made of Article 5 of the Treaty, in so far as it 
requires the Member Sutes to ensure fulfilment of Treaty 
obligations; on other occasions, reference has been nude to 
the need to uphold the direct effect of the Community pro­
visions with which the national provision establishing the 
tax is incompatible; mention has also been made of the gen­
eral prohibition of unjust enrichment, from which the State 
would benefit if it did not have to repay the sums improp­
erly levied. 
20 — Case 240/87 [1988] ECR 3513. 
21 — Those statements are a consistent feature in what is now a 
long series of judgments which, starting with Rewe and 
Comet, cited above, have been delivered in this area: Case 
177/78 Pigs & Bacon Commission [1979] ECR 2161; Case 
68/79 Just [1980] ECR 501; Case 265/78 Ferwerda [1980] 
ECR 617; Case 61/79 Denkavit Italiana [1980] ECR 1205; 
Case 811/79 Ariete [1980] ECR 2545; Case 826/79 MIRECO 
[1980] ECR 2559; Case 199/82 San Giorgio [1983] ECR 
3595; Joined Cases 331/85, 376/85 and 378/85 Bianco and 
Girard [1988] ECR 1099; Case C-5/94 Hedley Lomas [1996] 
ECR I-2553, among others. 
I - 4962 
EDIS v MINISTERO DELLE FINANZE 
(iii) The link between the two legal concepts 
28. The process of restricting, on an excep­
tional basis, the temporal effects of a judg­
ment operates like a concentric circle within 
the wider circle represented by the 'normal' 
effectiveness of that judgment. That effective­
ness — which, as I have already said, does 
not preclude the application of the conditions 
laid down by national law, provided that they 
are not discriminatory and do not render illu­
sory the right recognised by the Court of 
Justice — may even be reduced, in excep­
tional cases, by means of an express declara­
tion of that kind. 
29. The limitation of the temporal effects of 
an interpretative judgment operates, there­
fore, when there are a number of legal rela­
tionships still outstanding, not 'exhausted' 
under domestic law, which would normally 
be affected by the interpretation of the Com­
munity provision given by the Court of Jus­
tice. The latter, if certain exceptional circum­
stances exist, may decide that the effects of 
that interpretation are not to be implemented, 
not even with respect to the legal situations 
which are yet to be resolved. 
30. Therefore, the absence of statements of 
that kind in interpretative judgments of the 
Court of Justice 22 does not in any way pre­
vent the national judicial authorities from 
applying to legal relationships arising or estab­
lished before delivery of the judgment the 
provisions of a general nature which govern, 
from the procedural point of view, the exer­
cise of the rights in question. The only limita­
tions affecting the application of such provi­
sions are the prohibition of discrimination 
and the requirement that remedies should not 
be merely illusory: I shall return later to both 
these points when analysing the second and 
third questions submitted. 
31. Both the Commission and the various 
Governments of Member States which have 
submitted observations (Italy, France and the 
United Kingdom) agree with that view, 
drawing attention to the clear difference 
between the two legal concepts: a limitation 
on the temporal effects of a judgment of the 
Court of Justice, as an exceptional measure 
adopted by that Court in a specific case, 
operates on a different level from the general 
rules on the exercise of rights, from the pro­
cedural point of view, which it is incumbent 
on each Member State to draw up and on 
their judicial authorities to apply. 
32. At the hearing the Commission neverthe­
less took a stance different from its earlier 
one. In its written observations it had sug­
gested an answer to the first question which 
22 — According to settled case-law of the Court of Justice, such a 
limitation may be declared only in the judgment giving the 
requested interpretation. Obviously, only the Court of Jus-
tice can limit the temporal effects of its own judgments. 
I - 4963 
OPINION OF MR RUIZ-JARABO — CASE C-231/96 
confirmed that the application of a time-limit 
for the exercise of a claim for repayment of 
sums paid but not due was not incompatible 
with the prerogative, vested exclusively in the 
Court of Justice, of limiting the temporal 
effects of judgments. 23 At the hearing, how­
ever, it formally proposed that the answer 
from the Court should be similar to that given 
in the judgments in Deville, 24 cited above, 
and Barra, 25 together with the particular 
requirement that the powers of the compe­
tent national courts should be expressly lim­
ited. 26 
33. It reached that conclusion after analysing 
the development of the Italian case-law 
regarding interpretation of the term 'error' in 
relation to the payment of certain taxes that 
were not owed, and the consequent applica­
tion of time-limits to claims for their repay­
ment. In the Commission's view, the Corte di 
Cassazione had consistently interpreted that 
term in a very precise way (errors of calcula­
tion or assessment), which excluded cases of 
payments of tax sine causa, such as those 
which are contrary to Community law. That 
case-law, according to the Commission, had 
undergone a 'spectacular' change in the 1996 
judgment cited above, the lines of which were 
similar to the national measures adopted by 
France and Belgium, in order to escape the 
unfavourable consequences of an earlier judg­
ment of the Court of Justice, which were 
considered in Deville and Barra. 
34. I do not agree with that analysis. The 
Italian judicial authorities — specifically the 
Corte di Cassazione — drew the appropriate 
inferences from the Ponente Carni judgment, 
upholding the entitlement of taxpayers to 
repayment of the tax. If they applied a par­
ticular time-limit, they did so on a not unrea­
sonable interpretation of a pre-existing legal 
provision — an interpretation which, more­
over, sought to bring a specific set of circum­
stances into line with the general rules on 
time-bars applicable to all charges payable for 
Government action. 27 As the representative 
of the French Government stated at the 
hearing, there are no grounds for suspecting 
that, after that change in the case-law, there 
were any concealed intentions inconsistent 
with the impartiality and independence of 
that high judicial authority. Both the latter 
and other judicial bodies on a similar level 
must sometimes depart from their earlier 
case-law and, inevitably, they must do so in 
relation to a specific case. 
23 — It is true that, in its written submissions, the Commission 
had referred to the Deville judgment and to a possible 
analogy between it and the present case, but in rather hypo­
thetical terms: thus, in paragraph 16 of those submissions, 
the Commission 'wonders whether the interpretative prin­
ciple formulated in Deville might not also be applicable ... 
and does not exclude the possibility of the conclusion being 
reached that, paraphrasing the operative part of Deville, the 
following formulation could be adopted ...'. 
24 — In the operative part of that judgment, the Court of Justice 
held that, subsequent to a judgment of the Court of Justice 
from which it follows that certain legislation is incompat­
ible with the Treaty, a national legislature may not adopt a 
procedural rule which specifically reduces the possibilities of 
bringing proceedings for recovery of taxes which were 
wrongly levied under that legislation. 
25 — Case 309/85 [1988] ECR 355. 
26 — The suggested answer was: T h e judicial authorities of a 
Member State, following a judgment of the Court of Justice 
holding that certain tax legislation is incompatible with a 
Community directive, may not assign to a procedural provi­
sion a new interpretation which specifically reduces the pos­
sibility for persons concerned to seek reimbursement of a 
tax wrongly levied by that Member State.' 27 — See point 12 of this Opinion. 
I - 4964 
EDIS v MINISTERO DELLE FINANZE 
35. Accordingly, I consider that the answer 
to the first question must lay stress on the 
clear difference between the two legal con­
cepts to which that question refers: the fact 
that the Court of Justice did not, in its judg­
ment in Ponente Carni, limit the temporal 
effects thereof is compatible with making 
actions for reimbursement of the tax to which 
what judgment relates subject to the general 
rules concerning such actions found in the 
Italian legal order. 
The second question 
36. By its second question the national court 
seeks to ascertain whether it is permissible, 
from the Community point of view, for actions 
for the reimbursement of charges paid in 
breach of Council Directive 69/335 to be 
subject to a time-limit of three years reck­
oned from the date of payment, which differs 
from the limitation period (10 years) which 
national law lays down for actions for the 
recovery of sums unduly paid between indi­
viduals. 
37. It must be emphasised at the outset that, 
under Italian law, the time-limit mentioned 
by the national court affects not only actions 
for the repayment of taxes incompatible with 
Community law but also all actions for the 
repayment of any charge for Government 
action which was unduly levied, whether the 
reason for its illegality is attributable to a 
national or a Community provision. 
38. As I pointed out in describing the national 
legislation applicable to actions for reimburse­
ment of charges paid but not due, 28 Article 
13(2) of DPR 641/1972 is not confined to 
charges paid in breach of Community law: on 
the contrary, it provides that a taxpayer may 
claim repayment of any charge for Govern­
ment action paid in error, within a time-limit 
of three years as from the day of payment. 
Similar periods are prescribed for actions for 
reimbursement of other sums levied by cus­
toms authorities. 
39. Any differing views among legal writers 
and in the case-law in Italy as to the inter­
pretation of that precept — and more specifi­
cally the concept of 'payment under a mis­
take' — are a matter affecting only domestic 
law, on which of course the Court of Justice 
must not express a view. Suffice it to say that 
the Suprema Corte di Cassazione, in judg­
ment N o 3458/96, cited above, considered 
that the time-limit laid down in the second 
paragraph of Article 13 of DPR 641/1972 
extends to all charges for Government action 
unduly or mistakenly paid and, therefore, to 
the charge at issue in these proceedings. 29 
28 — Point 7 of this Opinion. 
29 — In that respect, see point 12 of this Opinion, setting out the 
reasoning of the judgment of the Corte di Cassazione. 
I - 4965 
OPINION OF MR RUIZ-JARABO — CASE C-231/% 
40. Starting from that premiss, I consider that 
no provision or principle of Community law 
prevents a national legislature from laying 
down limitation periods bringing about the 
extinguishment of rights or time-limits beyond 
which no action may be brought which differ 
according to the area of law involved, pro­
vided that they are applied without distinc­
tion to rights deriving from national provi­
sions and to those deriving from Community 
provisions. 
41. The national legislature is free to impose 
limitation periods or time-limits in the field 
of taxation and there is no need for them to 
coincide with those laid down for other rela­
tionships under civil law. N o provision or 
principle of Community law obliges it, for 
such purposes, to treat tax relationships in the 
same way as relationships inter privatos. 
42. Moreover, the Italian legal order sets very 
different time-limits according to the area of 
law concerned. Specifically, the general limi­
tation period under ordinary law (ten years) 
is laid down by Article 2946 of the Codice 
Civile 'except where otherwise provided by 
law' and there are numerous legal provisions 
which in fact impose shorter periods for the 
barring of certain rights or the exercise of cer­
tain rights of action. 30 
43. Like all the Member States that have sub­
mitted observations in these proceedings, I 
see no reason whatever for rejecting the view 
that a national legislature is entitled to impose 
for actions to recover tax revenue unduly paid 
time-limits for commencing proceedings 
which differ from those applicable to similar 
actions between private individuals. 
44. The legitimacy of such a distinction was, 
moreover, upheld by the Court of Justice in 
paragraphs 22 to 25 of its judgment of 27 
March 1980 in Denkavit Italiana, cited above. 
After recognising that Community law does 
not necessarily require a uniform rule common 
to all the Member States relating to formal 
and substantive conditions for contesting or 
recovering charges contrary to that law, and 
that the way in which the problem is dealt 
with varies from one State to another, and 
even within a single Member State, depending 
on the various kinds of taxes or charges 
involved, the Court of Justice accepted the 
viability of the two main sets of national rules 
in this area: 
— In certain cases, objections to or claims 
for the recovery of charges unduly levied 
are subject, under national law, to specific 
temporal and formal conditions, both for 
complaints addressed to the tax authori­
ties and for legal proceedings. 
— In other cases, actions for the repayment 
of charges unduly paid must be brought 
30 — In the Italian Codice Civile itself, Article 2947 et seq., under 
the headings 'Short limitation periods' and "Deemed limita­
tion of actions', governs cases in which the limitation periods 
are shorter than usual. For example, five years for damages, 
five years in company matters, one year for transport and 
insurance contracts, one or three years, as the case may be, 
in employment relationships, and so on. 
I - 4966 
EDIS v MINISTERO DELLE FINANZE 
before the ordinary courts, mainly in the 
form of claims for the refund 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. 
45. The Court immediately went on to say 
— reiterating what it held in Rewe and Comet, 
cited above — that, from the Community 
point of view, the conditions to be met by the 
various national systems regarding claims for 
recovery of charges unduly paid whose ille­
gality derived from Community law were 
those already mentioned: there should be no 
discrimination and the rights of action con­
cerned should not be merely illusory. They 
are the expression, according to the recent 
judgment of 10 July 1997 in Palmisani, 3 1 of 
the 'principle of equivalence' (equivalence 
with the requirements laid down for similar 
claims of a domestic nature) and of the 'prin­
ciple of effectiveness' of Community law, 
respectively. 
46. In a case similar to this one, the Court of 
Justice had an opportunity to clarify its ear­
lier doctrine even further in giving a prelimi­
nary ruling on a question by which the national 
court sought 'in substance to ascertain the 
extent to which it is contrary to the general 
principles of Community law for national 
rules to provide for a mandatory time-limit 
of three years for the submission of all appli­
cations for reimbursement of duties unduly 
paid, where there are no grounds of force 
majeure justifying an exception'. 
47. The reply, given in the judgment of 9 
September 1989 in Bessin and Saison, 32 is 
perfectly applicable to the present case since 
the legal situations are patently analogous. 
The national provisions at issue in that case 
were those of the French Customs Code, 
which imposed a time-limit of three years for 
claims for the recovery of unduly paid import 
duties: those provisions departed from the 
general limitation period applicable where no 
other was specified, under the French Civil 
Code, to claims for the refund of sums unduly 
paid. 
48. In its ruling on that question, the Court 
of Justice, after referring to the requirement 
of non-discriminatory application of national 
legislation, as compared with proceedings in 
purely national disputes of the same kind, 
and stating that such legislation must not 
make it impossible in practice to exercise the 
rights conferred by Community law, held that 
the three-year limitation period reflected 'a 
legislative choice which does not have the 
effect of undermining the aforesaid require­
ment'. 
49. Finally, in two judgments of 17 July 1997, 
Texaco and Olieselskabet Danmark 33 and 
31 — Case C-261/95 [1997] ECR I-4025. 
32 — Case 386/87 [1989] ECR 3551, paragraphs 15 to 18. 
33 — Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263, 
paragraphs 45 to 49. 
I - 4967 
OPINION OF MR RUIZ-JARABO — CASE C-231/96 
Haahr Petroleum, 34 the Court of Justice 
repeated the same principle, confirming that 
'the laying down of reasonable limitation 
periods, which is an application of the fun­
damental principle of legal certainty, satisfies 
the two conditions referred to above and, in 
particular, cannot be regarded as rendering 
virtually impossible or excessively difficult 
the exercise of rights conferred by Commu­
nity law, even if the expiry of those periods 
necessarily entails the dismissal, in whole or 
in part, of the action brought'. Consequendy, 
it held that the limitation period of five years 
applied by Danish law to applications for the 
reimbursement of national taxes contrary to 
Community law was compatible with Com­
munity law, even 'where it -wholly or partly 
prevented the requested refund. 
50. There would thus be discrimination if the 
Italian provision barring actions for reim­
bursement of charges unduly paid laid down 
different time-limits according to the origin 
— in national or Community law — of the 
obligation to repay them. That would be the 
case if the legally prescribed period for 
claiming a refund of the charge, on the ground 
of incompatibility with Community law, were 
shorter than the legally prescribed period for 
claiming refund of the same charge on any 
ground of national law. But since that is not 
the case and the time-limit laid down by 
Article 13(2) of DPR 641/1972 applies without 
distinction to all actions for repayment of 
the charge, whatever their basis, the answer 
to the second question must uphold the 
compatibility of that provision with Commu­
nity law. 
51. At this stage of the debate, the Commis­
sion takes a different approach which prompts 
it to 'reformulate entirely' the second pre­
liminary question. In its view, as framed by 
the national court, that question should be 
regarded as inadmissible since it relates only 
to a problem of interpretation of domestic 
law, or else it should be reformulated in the 
following terms: 
'Does Community law preclude a national 
provision which, as interpreted by the com­
petent national authorities, makes actions 
seeking to secure repayment of a national 
charge contrary to Article 10 of Directive 
69/335/EEC subject to a time-limit which 
presupposes the actual existence of a power 
of taxation on the part of a Member State and 
the existence of a corresponding fiscal obliga­
tion, and not to the limitation period appli­
cable under national law to cases of repay­
ment of sums "objectively undue" resulting 
from the non-existence of any power of taxa­
tion on the part of the State or any corre­
sponding fiscal obligation?' 
52. I do not approve of that approach as 
regards either the alleged inadmissibility of 
the question or the necessity or appropriate­
ness of reformulating it. 34 — Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53. 
I - 4968 
EDIS v MINISTERO DELLE FINANZE 
53. As regards the objection of inadmissi­
bility, it is not true that the second question 
concerns a problem of domestic law, as would 
be the case if it were merely a question of 
interpreting the term 'charges paid under a 
mistake' appearing in Article 13(2) of DPR 
641/1972. On the contrary, what the national 
court wishes to ascertain is whether, on the 
basis of the interpretation of that term adopted 
by the national judicial authorities, the appli­
cation of a three-year time-bar to actions for 
repayment of the charge, rather than the 
10-year limitation period for proceedings 
between individuals, is contrary to Commu­
nity law. The question is therefore admissible 
since it seeks clarification of the case-law of 
the Court of Justice concerning equality as 
regards the conditions for actions for repay­
ment of taxes contrary to Community law. 
54. Nor, in my opinion, should the proposed 
reformulation of the second question be 
accepted. The national court does not go back 
to the 'underlying supposition' of Article 13 
of DPR 641/1972 or the existence or other­
wise of the power of taxation of the State, 
nor does it infer from those suppositions that 
a time-limit of three years or a limitation 
period of 10 years is applicable. Those prob­
lems, on the contrary, are indeed the subject 
of questions on which a preliminary ruling 
has been sought by other Italian judicial 
authorities regarding repayment of the charge 
at issue in these proceedings, to which an 
answer must be given in the relevant cases. 35 
55. It is true, nevertheless, that in the legal 
grounds of the order for reference the national 
court maintains that the 'system of repay­
ment provided for in Article 13 of DPR 
641/1972' runs counter to the general rules of 
national law under which a right of action for 
reimbursement of sums unduly paid is sub­
ject only to the ordinary generally applicable 
limitation period of 10 years. It adds that 'in 
its judgment N o 56 of 20 February 1995, the 
Italian Corte Costituzionale included within 
the scope of the legislation — proceedings for 
recovery of sums unduly paid — proceedings 
brought by taxpayers for repayment of charges 
for governmental action ...'. 
56. The Commission, to the same effect, 
emphasises that the abovementioned judg­
ment of the Corte Costituzionale 'appears to 
run counter to ' the doctrine laid down by the 
Suprema Corte di Cassazione in judgment 
N o 3458/96, cited above: the Corte Costi­
tuzionale classified actions for the repayment 
of tax as 'actions for the reimbursement of 
sums unduly paid', an expression which in 
Italian law has a clear and unequivocal 
meaning, in so far as it refers to Article 2033 
of the Civil Code ('sums objectively not due'). 
It follows, in the Commission's view, that the 
limitation period applicable to those actions 
is 10 years, not the three-year time-bar laid 
down by DPR 641/1972. 
57. In my opinion, that alleged discrepancy 
between the judgments of the two Italian 
35 — Joined Cases C-10/97 to C-22/97. At the hearing, the Com­
mission refrained from making any submissions on the 
effects of possible legal non-existence' of national laws 
incompatible with Community Law, which in its opinion 
could be inferred from the Simmenthal judgment, and 
expressly stated that it preferred to defer its submissions on 
this point until the hearing in the cases mentioned above. 
I - 4969 
OPINION OF MR RUIZ-JARABO — CASE C-231/96 
courts is non-existent 36 and, if it did exist, it 
•would be for the Court of Justice to incline 
towards one solution or the other. It would, 
in any event, be merely a problem of the 
application of conflicting internal provisions 
(on the one hand, the Civil Code, on the 
other, DPR 641/1972), the ultimate resolution 
of which is a matter solely for the Italian 
judicial authorities, under their own proce­
dural system. 
58. The decisive point is not, therefore, that 
actions for reimbursement are subject to dif­
ferent time-bars depending on whether they 
are tax claims or claims in civil proceedings, 
but rather that the solution adopted by 
domestic law, as interpreted by its judicial 
authorities, 37 should apply without distinc­
tion to actions for reimbursement based on 
Community law and to those based on 
domestic law. And that is precisely the pos­
ition in relation to the charge at issue, as can 
be inferred from the evidence before the 
Court. 
59. The Commission, both in its written sub­
missions and, more extensively, at the hearing, 
maintains that the principle of equivalence 
would be undermined if actions for the reim­
bursement of taxes unduly paid, based on 
infringement of Community law, were to 
receive less favourable treatment than that 
enjoyed in Italy by actions of that kind where 
the basis of the claim is infringement of a 
superior provision of domestic law and, par­
ticularly, in cases of taxes paid under national 
laws contrary to the Constitution. 
60. In its opinion, the 'measures of national 
law' which must serve as a point of reference 
for applying the principle of equivalence are 
actions for recovery brought by taxpayers 
who have paid a tax under domestic law 
which has subsequently been declared uncon­
stitutional. In its written observations, the 
Commission had stated that both Italian leg­
islation and case-law regarded such actions as 
a case of 'recovery of sums objectively not 
due' covered by the common rules of the 
Italian civil code (Article 2033) and therefore 
36 — The judgment of the Corte Costituzionale referred solely to 
the requirement of prior exhaustion of administrative rem­
edies as an essential precondition for the availability of court 
proceedings. That requirement is considered unconstitu­
tional, in the following terms: 
'According to settled case-law of this Court, to make legal 
proceedings subject to the requirement of prior exhaustion 
of administrative remedies, thereby deferring the possibility 
of bring such proceedings until a particular period of time 
has elapsed since lodgment of the administrative appeal, is 
only lawful when justified by requirements of a general 
nature or superior principles of justice, and the fact remains 
that, even in such circumstances, the legislature must impose 
that requirement in the least burdensome terms possible. 
For disputes covered by Article 12 of DPR 641/1972, as for 
those covered by the analogous provisions of Decrees 640 
and 642, there is no rationale for justifying the limitation 
imposed on the principle laid down in Article 24 of the 
Constitution. Such disputes do not involve technical verifi­
cations which might disclose the necessity or appropriate­
ness of the judicial stage being preceded by an administra­
tive analysis (cf. judgment N o 15 of 1991), particularly 
where, as in this case, the proceedings concern repayment of 
taxes improperly levied by the tax administration. There arc 
no reasons to justify the privilege of special rules, in favour 
of the debtor, applicable to actions against the tax authori­
ties for recovery of sums unduly paid.' The Commission 
seeks to apply that last sentence, taken out of its context, 
also to time-limits for those actions, which in my view clearly 
goes beyond the ratio deadend of the judgment, which cer­
tainly does not refer to the temporal difficulties concerning 
actions for reimbursement but is concerned, rather, with the 
unjustified requirement of first exhausting administrative 
remedies. 
37 — The Court of Justice has repeatedly held (see, amongst the 
most recent cases. Case C-300/95 Commission v United 
Kingdom [1997] ECR I-2649, paragraph 37) that the scope 
of national laws, regulations or administrative provisions 
must be assessed in the light of the interpretation given to 
them by national courts. 
I - 4970 
EDIS v MINISTERO DELLE FINANZE 
subject to the ordinary limitation period of 
10 years. At the hearing, the Commission sig­
nificantly departed from those statements, 
recognising that the problem 'has no easy 
solution' and is a matter to be resolved by the 
Italian courts. 
61. If, by way of premiss, it is conceded that 
it is the Italian judicial authorities who have 
the last word on this question, the infor­
mation supplied on this point, at the hearing, 
by the Italian Government does not specifi­
cally support the Commission's stance. 
62. The view put forward by the Corte di 
Cassazione (Combined Chambers) in its judg­
ment N o 2876 of 9 June 1989 concerning the 
consequences of a ruling of unconstitution­
ality of a law containing tax provisions, with 
regard to taxes already paid under it, is as fol­
lows: 
— Judgments of the Corte Costituzionale 
which declare to be unlawful provisions 
ranking as laws eliminate the latter from 
the legal order ex tunc, in the sense that 
they can no longer be applied to out­
standing legal relationships; legal relation­
ships which have run their full course, 
that is to say those whose effects have 
been consolidated to such a point that they 
cannot be changed, are not affected by 
such pronouncements. 
— Specifically, such judgments do not affect 
those tax relationships arising by opera­
tion of law which, for various reasons, 
must be regarded as having come to an 
end. Those reasons may include the exist­
ence of a previous judgment, or the fact 
that the tax assessment has become final 
(through not being challenged or through 
dismissal of a challenge), or the effluxion 
of prescription periods or time-limits laid 
down by the rules governing the tax. 
— Therefore, payments of tax debts based 
on fiscal provisions held to be unconsti­
tutional cannot be affected where the tax­
payers allowed the legal relationship in 
question to consolidate. 
— There is no basis for the view that, because 
of the retroactive effect of declarations of 
unconstitutionality, the tax obligation is 
non-existent in radice and, therefore, the 
general rule on charges improperly levied 
(namely Article 2033 of the Civil Code) 
would immediately take effect, so that the 
action could be brought without reference 
I - 4971 
OPINION OF MR RUIZ-JARABO — CASE C-231/96 
to the procedures for challenging tax 
assessments, and regardless of the time-
limits laid down by the tax provisions. 
— In conclusion, there is no basis for the 
view that in such cases (even where it is 
contended that there was no valid tax 
relationship, either original or supervening) 
an action for recovery of sums unduly 
paid provided for by the Civil Code would 
be available, rather than one covered by 
the specific rules for tax litigation, both 
substantive and procedural. 
63. The same doctrine was reiterated in judg­
ment N o 5731 of the Corte di Cassazione 
(Combined Civil Chambers) of 21 June 1996, 
which summarises it in the following terms: 
'... a declaration of unconstitutionality of a 
provision creating a particular tax has no 
impact on tax relationships in respect of which 
the time-limits set for taxpayers to challenge 
tax assessments have expired; it cannot be 
considered that a declaration of unconstitu­
tionality of a provision conferring a power of 
taxation has the effect of making the dispute 
immune to the time-limits and procedures 
applicable to tax litigation ... The incompat­
ibility of a tax provision with the Constitu­
tion does not mean that the time-limits and 
procedures applicable to tax litigation can be 
disregarded, nor does it allow doubt to be 
cast upon tax assessments not duly challenged 
within the prescribed period ...'. 
64. There is no foundation, therefore, for the 
Commission's allegation of unequal treat­
ment as between actions for recovery of undue 
taxes based on infringement of a higher-
ranking provision, depending on whether that 
provision is contained in domestic or in Com­
munity legislation. 
65. Consequently, it is necessary neither to 
reformulate the second preliminary question 
nor to amend it so as to bring into consider­
ation the alleged inequality of conditions for 
bringing proceedings applicable to the two 
kinds of action for recovery of taxes unduly 
paid. The tenor of the second question is clear, 
and must be reflected in the answer given by 
the Court of Justice. In view of the consid­
erations which I have just set out, I propose 
that the Court give an answer confirming its 
earlier case-law, reiterating that Community 
law does not preclude national law from 
imposing a time-limit of three years for 
bringing proceedings against the tax authori­
ties for recovery of taxes paid but not due, 
even where that period differs from that laid 
down for actions for recovery of sums unduly 
paid between individuals, provided that the 
former time-limit applies without distinction 
to actions for recovery based on grounds of 
domestic law and those deriving from the 
application of Community provisions. 
I - 4972 
EDIS v MINISTERO DELLE FINANZE 
The third preliminary question 
66. The third question, which presupposes an 
affirmative answer to the previous one, seeks 
to determine the compatibility or otherwise 
with Community law of national legislation 
which, in relation to actions for the recovery 
of taxes unduly paid, sets as the starting point 
of the three-year time-limit the date of pay­
ment of the tax, at which time the Commu­
nity directive applicable to it had not been 
correctly incorporated into national law. 
67. The written observations of the plaintiff, 
the Commission and various Member States 
have focused on the impact on this problem 
of the judgment of the Court of Justice of 25 
July 1991 in Emmott. 38 In that judgment the 
Court of Justice stated that 'until such time as 
a directive has been properly transposed, a 
defaulting Member State may not rely on an 
individual's delay in initiating proceedings 
against it in order to protect rights conferred 
on him by the provisions of the directive and 
that a period laid down by national law within 
which proceedings must be initiated cannot 
begin to run before that time'. 39 
68. It is true that the scope of Emmott had 
nevertheless subsequently been cut down by 
the Court of Justice when it emphasised that 
the rule in that case can be applied only when 
the same singular circumstances arise as char­
acterised that case. In its judgments in 
Steenhorst-Neerings, 40 and in Johnson, 41 the 
Court of Justice confirmed that national limi­
tation periods applied to requests for pay­
ment of sums owing in respect of social ben­
efits under certain directives, even where the 
directives in question had not been properly 
incorporated into national law. 
69. While the present case has been pending, 
the Court of Justice has given judgment in 
Haahr Petroleum and Texaco and Olie­
selskabet Danmark, cited above. In them it 
again rejected application of the principle laid 
down in Emmott. In both cases a claim for a 
refund — based on infringement of Article 95 
of the Treaty — had been dismissed by the 
Danish authorities in reliance on a national 
provision under which legal proceedings to 
secure the refund of taxes unduly paid becomes 
barred after a period of five years reckoned 
from the date of payment. The Court of Jus­
tice repeated that, even where that provision 
wholly or partly prevented the repayment of 
the taxes in question, its application to those 
two cases was not contrary to Community 
law. 
38 — Case C-208/90 [1991] ECR I-4269. 
39 — Paragraph 23. 
40 — Case C-338/91 [1993] ECR I-5475. 
41 — Case C-410/92 [1994] ECR I-5483. 
I - 4973 
OPINION OF MR RUIZ-JARABO — CASE C-231/96 
70. Finally, two months before the hearing in 
this case the Court of Justice gave judgment 
in Fantask, 42 which is particularly important 
in the present context since the factual and 
legal aspects of that case and this were similar. 
Fantask was concerned with the repayment 
of sums relating to: 
— the same type of national tax (Danish tax 
on the registration of companies); 
— the same type of incompatibility with 
Community law (specifically, Directive 
69/335) of the national provision gov­
erning the charge; 
— the same barrier of national time-limits or 
limitation periods (five years, under 
national legislation, reckoned from the 
day of payment of the tax). 
71. As in this case, in Fantask the national 
court, confronted with a dispute of the kind 
described, asked the Court of Justice 'whether 
Community law prevents a Member State 
from relying on a limitation period under 
national law to resist actions for the recovery 
of charges levied in breach of the Directive as 
long as that Member State has not properly 
transposed the Directive'. The submissions of 
the plaintiff companies and of the Commis­
sion were also based on the rule in Emmott, 
the application of which was argued against 
by the Governments that submitted observa­
tions. 
72. The Court of Justice chose once more to 
adopt the last-mentioned solution, reiterating 
the line of reasoning which I have outlined 
above. 
73. First, as a general principle, it pointed out 
that, in the absence of Community legislation 
on the matter, it is for the domestic legal order 
of each Member State to regulate proceedings 
for the recovery of sums unduly paid, pro­
vided that the conditions are not less favour­
able than those governing similar domestic 
claims and do not render virtually impossible 
or excessively difficult the exercise of rights 
conferred by Community law. 
74. Secondly, after emphasising the compat­
ibility with Community law of the setting of 
reasonable time-limits within which proceed­
ings had to be commenced or else be barred, 42 — Case C-188/95 [1997] ECR I-6783, paragraphs 42 to 52. 
I - 4974 
EDIS v MINISTERO DELLE FINANZE 
in the interests of legal certainty which pro­
tects both the taxpayer and the Administra­
tion, it stressed that it cannot be considered 
that such time-limits make it virtually impos­
sible or extremely difficult to exercise rights 
conferred by Community law, even where, 
by definition, failure to comply with them 
means that the action will fail wholly or in 
part. Specifically, the period of five years laid 
down by Danish law was reasonable and was 
applied in the same way to actions based on 
Community law as to those based on domestic 
law. 
75. Thirdly, it again rejected the application 
to proceedings of this kind of the rule in 
Emmott, the solution adopted in that case 
being justified by its own special circum­
stances in which the time-bar had the effect 
of entirely depriving the plaintiff of any oppor­
tunity of asserting her right to equal treat­
ment under a Community directive. 
76. Finally, the Court of Justice concluded 
that 'Community law, as it now stands, does 
not prevent a Member State which has not 
properly transposed [the directive] from 
resisting actions for the repayment of charges 
levied in breach thereof by relying on a limi­
tation period under national law which runs 
from the date on which the charges in ques­
tion became payable, provided that such a 
period is not less favourable for actions based 
on Community law than for actions based on 
national law and does not render virtually 
impossible or excessively difficult the exercise 
of rights conferred by Community law'. 
77. In view of the clarity of the terms used 
by the Court and of the evident analogy 
between the factual and legal situations in 
Fantask and this case, the Commission 
decided, at the hearing, not to adhere to its 
earlier position and conceded that the ques­
tion had been definitively settled by the judg­
ment in Fantask. The plaintiffs in the main 
proceedings, on the other hand, endeavoured 
on the same occasion 43 to highlight differ­
ences between Danish and Italian law which 
made it inappropriate to apply the rule in 
Fantask to the present case. 
78. In my opinion that endeavour was mis­
conceived. First, because its point of depar­
ture was wrong: rather than finding alleged 
differences between Fantask and that case, 
what it needed to prove was that the situa­
tions in Emmott and that case were analo­
gous, since the case-law subsequent to Emmott 
had drawn attention to the singularity of the 
circumstances of that case, which decisively 
affected the solution adopted. At the hearing 
the United Kingdom Government stressed in 
that respect that — among other things — it 
was Mrs Emmott's own authorities who urged 
her not to appeal. On the contrary, nothing 
prevented the Italian companies from exer-
43 — A joint hearing was held for Case C-231/96 EDIS, C-260/96 
SPAC, C-279/96 Ansaldo Energia, C-280/96 Marine Insur­
ance Consultant, and C-281/96 GMB and Others. 
I - 4975 
OP I NI ON OF MR RUE-JARABO — CASE C-231/96 
cising their right of appeal against the tax 
assessments made against them. 44 
79. Second, and regardless of the foregoing 
point, the alleged differences between one 
national legislation and another are irrelevant 
as regards the repercussions for this case of 
the rule in Fantask. Whether the time-limit is 
of five or of three years and whether it is laid 
down in a general rule or a special rule appli­
cable to a specific class of taxes and whether 
or not there has been a change in the case-law 
on the interpretation of that pre-existing pro­
vision, what is important is that the Court of 
Justice has confirmed that the time-limit — 
of five or of three years — which can be 
relied on to resist actions, founded on Com­
munity law, for the repayment of taxes 
improperly levied, may start to run from the 
time at which they were paid and not from 
the time at which the State properly trans­
posed the directive into national law. 
80. That statement — which, obviously, pre­
supposes the non-existence of provisions of 
Community law governing the matter and 
the existence of a national provision which 
lays down the time-limit on a non­
discriminatory basis — is not rendered invalid 
by the fact that, logically, the expiry of that 
period prevents repayment of the tax paid. 
That is an inherent feature of a time-limit of 
that kind which, inspired by the principle of 
legal certainty, does not thereby detract from 
the right to judicial protection: in the period 
of three years following payment, the possi­
bility of challenging the tax assessment was 
open to the taxpayers. 
81. It might be thought that that solution is 
not particularly satisfactory from the stand­
point of taxpayers who have been obliged to 
pay a tax contrary to Community law. And 
that is indeed the case. A possible solution, 
albeit one not without serious difficulties, 
would be to establish uniform Community 
rules on this point, harmonising the various 
national regimes. Until such legislation exists, 
it is for the Member State to determine, under 
the conditions amply described above, the 
requirements for actions for reimbursement. 
82. It is true that, in the exercise of that 
power, the Member States — as far as this 
case is concerned, the Italian Republic — 
must act in accordance with the requirements 
of Article 5 of the Treaty. It is also true that 
some conduct on the part of the Italian author­
ities regarding repayment of the charge at 
issue in these proceedings, as described in the 
submissions of the parties, appears to have 
placed in the way of actions for reimburse-
44 — EDIS's own counsel nude this clear at the hearing when he 
conceded that, as early as 1989 (and thus not only before 
judgment was delivered in Ponente Carni but even before 
the request for a preliminary ruling was submitted in that 
case), another EDIS company linked with his client and cer­
tain other Italian companies had taken proceedings to chal­
lenge the charge for entry on the register. Although their 
actions were dismissed, on substantive grounds, it is clear 
that they were not denied legal protection. 
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EDIS y MINISTERO DELLE FINANZE 
ment more obstacles than might reasonably 
be expected, in the light of that article. 45 But 
these preliminary-ruling proceedings cannot 
be converted into infringement proceedings 
under Article 169 of the Treaty, nor can the 
fact be overlooked that the official action 
taken by the Italian Republic has been essen­
tially in conformity with the obligations 
deriving from the Treaty: its legislative author­
ities have abolished the national tax which 
was contrary to Community law and expressly 
recognised entitlement to reimbursement of 
it, 46 a right which is also safeguarded by the 
Italian judicial authorities, albeit subject to 
the limitations of the domestic provisions on 
limitation of actions. 
Conclusion 
83. I therefore propose that the Court of Justice give the following answers to the 
questions submitted by the Tribunale Civile di Genova: 
(1) The application of time-limits laid down by a national provision for bringing 
proceedings for reimbursement of taxes paid but not due is not equivalent to a 
limitation of the temporal effects of a judgment of the Court of Justice, which 
may only be declared by the latter. 
(2) Community law does not preclude national law from imposing a time-limit of 
three years for bringing proceedings against the tax authorities to recover taxes 
paid but not due even where that time-limit is different from that laid down 
for recovery of sums paid but not due between individuals, provided that that 
time-limit applies without distinction to actions for reimbursement based on 
domestic law and those which derive from the application of Community pro­
visions. 
(3) Community law does not preclude application to a claim for reimbursement 
of a tax which is incompatible with a directive of a national provision under 
45 — Inter alia, the need to bring legal proceedings in order to 
secure a right enforceable against the tax authorities, a 
requirement which may also lead to an unjustified increase 
in litigation — and, thereby, a delay in the administration of 
justice — to the detriment of taxpayers. 
46 — Article 61 of Decree-Law N o 331 of 30 August 1993 lays 
down the procedure for reimbursement of sums improperly 
paid in that respect, either by means of an administrative 
claim (for sums paid in respect of the 1992 tax year) or by a 
claim for compensation (for those paid in respect of 1993). 
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OPINION OF MR RUIZ-JARABO — CASE C-231/96 
which a right of action to bring proceedings for reimbursement of taxes paid 
but not due is barred on the expiry of three years after payment, even where 
that provision totally or partially prevents repayment of the taxes concerned. 
I - 4978