Opinion of the Advocate General — ECLI:EU:C:2010:744
Date: 2010-12-07
Language of the case: Danish
Subject matter: Taxation;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment Union law – Direct effect – National taxes incompatible with Union law – Repayment – Refusal – Condition – Unjust enrichment – Definition – Passing on directly to the purchaser of amounts wrongly paid by the taxpayer The rules of Union law on recovery of sums wrongly paid must be interpreted to the effect that recovery of sums wrongly paid can give rise to unjust enrichment only when the amounts wrongly paid by a taxpayer under a tax levied in a Member State in breach of Union law have been passed on direct to the purchaser. Consequently, Union law precludes a Member State from refusing reimbursement of a tax wrongfully levied on the ground that the amounts wrongly paid by the taxpayer have been set off by a saving made as a result of the concomitant abolition of other levies, for such a set-off cannot be regarded, from the point of view of Union law, as unjust enrichment in relation to that tax. The direct passing on to the purchaser of the tax unduly paid being the sole exception to the right to reimbursement of tax levied in breach of Union law, the national court, applying its domestic law, may not take account of possible means of refusing reimbursement of an unlawful tax other than its setting off. (see paras 25-26, operative part)