Opinion of the Advocate General — ECLI:EU:C:2009:180
Date: 2009-03-24
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Community law – Direct effect – Primacy – Provision of national law laying down the principle of res judicata Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of Community law on the part of the decision in question. The rules implementing the principle of res judicata, which are a matter for the national legal order in accordance with the principle of the procedural autonomy of the Member States, must not, however, be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness). In that connection, the interpretation of res judicata according to which, in tax disputes, where a final judgment in a given case concerns a fundamental issue common to other cases, it has binding authority as regards that issue even if its findings were made in relation to a different tax period, is not compatible with the principle of effectiveness. Not only does an interpretation of that kind prevent a judicial decision that has acquired the force of res judicata from being called into question, even if that decision entails a breach of Community law; it also prevents any finding on a fundamental issue common to other cases, contained in a judicial decision which has acquired the force of res judicata, from being called into question in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year. Accordingly, if the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an interpretation of the Community rules concerning abusive practice in the field of value added tax which was at odds with Community law, those rules would continue to be misapplied for each new tax year, without it being possible to rectify the interpretation. Such extensive obstacles to the effective application of the Community rules on value added tax cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness. Consequently, Community law precludes the application, in such circumstances, of a provision of national law which seeks to lay down the principle of res judicata, in a dispute concerning value added tax relating to a tax year for which no final judicial decision has yet been delivered, to the extent that it would prevent the national court seised of that dispute from taking into consideration the rules of Community law concerning abusive practice in the field of value added tax. (see paras 23-24, 26, 29-32, operative part)