Opinion of the Advocate General — ECLI:EU:C:2003:172
Date: 2003-03-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Community law — Direct effect — National charges incompatible with Community 
law — Repayment — Introduction of a more restrictive procedural rule in antici­
pation of the potential effects of a judgment of the Court — Not permissible — 
Criterion — Measure specific to the duty which is the subject of the Court's 
judgment — To be assessed by the national court 
(EC Treaty, Art. 5 (now Art. 10 EC)) 
I - 11365 
SUMMARY — CASE C-147/01 
2. Community law — Direct effect — National charges incompatible with Community 
law — Repayment — Refusal on the sole ground that the charge was passed on and 
independently of the degree of unjust enrichment — Not permissible 
3. Community law — Direct effect — National charges incompatible with Community 
law — Repayment — Procedure — Application of national law — Limits — Com­
pliance with the principle of equivalence of Community law — National provision 
derogating from the rule of non-repayment where the charge was passed on for 
applicants able to rely on a precedent from a national constitutional court — Breach 
of the principle of equivalence — To be determined by the national court 
4. Community law — Direct effect — National charges incompatible with Community 
law — Repayment — Procedure — Application of national law — Limits — Com­
pliance with the principle of the effectiveness of Community law — Presumption of 
unjust enrichment solely because the charge was passed on — Not permissible 
1. The adoption by a Member State of 
rules fixing more restrictive procedural 
rules on recovery of sums levied but not 
due, in order to forestall the possible 
effects of a judgment of the Court 
holding that Community law precludes 
the maintenance of a national duty, is 
contrary to Community law and, more 
particularly, to Article 5 of the Treaty 
(now Article 10 EC) only in so far as it 
is aimed specifically at that duty, a 
point which falls to be determined by 
the national court. 
(see para. 118, operative part 1) 
2. The rules of Community law on the 
recovery of sums levied but not due are 
to be interpreted as meaning that they 
preclude national rules which refuse — 
a point which falls to be determined by 
the national court — repayment of a 
charge incompatible with Community 
law on the sole ground that the charge 
was passed on to third parties, without 
requiring that the degree of unjust 
enrichment that repayment of the 
charge would entail for the taxable 
person be established. 
(see para. 118, operative part 2) 
3. The principle of equivalence precludes 
national rules which lay down less 
favourable procedural rules for claims 
for repayment of a charge which has 
been levied though not due from the 
I - 11366 
WEBER'S WINE WORLD AND OTHERS 
aspect of Community law than those 
applicable to similar actions based on 
certain provisions of domestic law. 
As regards a national provision dero­
gating from the rule that repayment of a 
charge which was passed on is refused, 
where the claimants are able to rely on 
a precedent in the form of a judgment 
of a national constitutional court, it is 
for the national court to ascertain, on 
the basis of a comprehensive assess­
ment of national law, whether it is 
actually the case, first, that only claim­
ants who bring proceedings based on 
domestic constitutional law may rely 
on that derogation and, second, that 
the rules governing repayment of 
charges held to be incompatible with 
domestic constitutional law are more 
favourable than those applicable to 
actions relating to taxes held to be 
4. As regards claims for repayment of a 
charge levied though not due from the 
aspect of Community law, the principle 
of effectiveness precludes national 
legislation or a national administrative 
practice which makes the exercise of 
the rights conferred by the Community 
legal order impossible in practice or 
excessively difficult by establishing a 
presumption of unjust enrichment on 
the sole ground that the duty was 
passed on to third parties. 
(see para. 118, operative part 3) (see paras 103, 118, operative part 4) 
I - 11367