Judgment;Summary — ECLI:EU:C:2025:454
Date: 2025-06-19
Language of the case: Italian
Court formation: First Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-645/23 – 1 
Case C-645/23  
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 October 2023 
Referring court: 
Corte d’appello di Bologna (Italy) 
Date of the decision to refer: 
26 October 2023 
Appellant: 
Hera Comm SpA 
Respondent: 
Falconeri Srl 
  
Subject matter of the main proceedings 
Appeal brought before the Corte d’appello di Bologna (Court of Appeal, Bologna, 
Italy) against the order of the Tribunale di Bologna (District Court, Bologna) of 
19 April 2021 upholding the respondent company’s claim for repayment of a sum 
unduly paid to the appellant company and ordering the appellant to repay 
EUR 43 492.69 plus interest. 
Subject matter and legal basis of the request 
By the reference for a preliminary ruling, made pursuant to Article 267 TFEU, the 
Court of Appeal of Bologna seeks an interpretation of Article 1(2) of Directive 
2008/118/EC in order to determine: – whether the additional tax on electricity 
excise duty may be considered to be ‘[an]other indirect tax’ within the meaning of 
that article; – if so, whether that article has direct effect and whether Italian 
legislation may be disapplied in the context of a relationship between private 
individuals. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-645/23 
 
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Questions referred for a preliminary ruling 
(a) Does an additional tax on electricity excise duty, levied by the Member State 
as a fraction or multiple of the excise duty to which the product is already subject, 
fall within the concept of ‘other indirect taxes’ referred to in Article 1(2) of 
Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC, or must it be 
understood as a mere increase in the rate of the excise duty, with the result that the 
Member State is at liberty not to use it for the ‘specific purposes’ required by 
Article 1(2) of Directive 2008/118/EC? 
(b) If the additional tax on electricity excise duty falls within the concept of 
‘other indirect taxes’, must Article 1(2) of Council Directive 2008/118/EC of 
16 December 2008 be interpreted as meaning that it meets the conditions for being 
relied on by a private individual before a national court for the purposes of: 
- challenging the seller of the product subject to the additional excise duty, to 
which the private individual has paid the indirect tax, on the ground that the 
Member State’s tax charge to the vendor is unlawful because it is based on a 
national provision contrary to the Directive; 
– as a result, recovering from the vendor the undue payment that it claimed 
from him? 
Provisions of European Union law relied on 
Principle of primacy (Declarations annexed to the Final Act of the 
Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 
13 December 2007, A. DECLARATIONS CONCERNING PROVISIONS OF 
THE TREATY – 17. Declaration concerning primacy); principles of effectiveness 
and equivalence (Article 47(1) of the Charter of Fundamental Rights of the 
European Union, Article 19(2) TEU); principle of sincere cooperation 
(Article 4(3) TEU, Article 288 TFEU, Articles 1(2) and 9(2) of Directive 
2008/118/EC) 
Provisions of national law relied on 
Decreto-legge del 28 novembre 1988, n. 511 (Decree-Law No 511 of 
28 November 1988) 
Preamble: ‘Given the extraordinary need and urgency of providing the necessary 
resources to regional and local financial institutions, in order to ensure the 
performance of the institutional tasks […]’ 
Article 6, in the version in force before its repeal: 
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‘1. An additional tax is hereby introduced on the excise duty on electricity 
provided for in Articles 52 et seq. of the […] testo unico delle accise 
(Consolidated Law on Excise Duties), as follows: 
(a) EUR 18.59 per MWh for municipalities for any use in dwellings […] 
(b) EUR 20.40 per MWh for municipalities, for any use in second homes; 
(c) EUR 9.30 per MWh for provinces for any use in premises and places other 
than dwellings, for all users, up to a maximum of 200 MWh of consumption 
per month. 
2. By a decision to be adopted within the deadlines for approval of the preliminary 
budget, the provinces may increase the measure referred to in paragraph 1(c) up to 
EUR 11.40 per MWh. […] 
3. The additional taxes referred to in paragraph 1 shall be payable by the taxable 
persons referred to in Article 53 of the Consolidated Law on Excise Duties, at the 
time of supply of electricity to final consumers or, in respect of electricity 
produced or purchased for own use, at the time of consumption. The additional 
taxes shall be assessed and collected in the same way as the excise duty on 
electricity. […]’. 
Decreto legislativo del 26 ottobre 1995, n. 504 (Legislative Decree No 504 of 
26 October 1995, Article 52(1): ‘Electricity […] shall be subject to excise duty, at 
the rates laid down in Annex I, at the time of supply to final consumers or at the 
time of consumption of electricity produced for own use.’ 
Decreto-legge del 29 dicembre 2010, n. 225 (Decree-Law No 225 of 29 December 
2010), Article 2(2bis): ‘Pending full implementation of the financial arrangements 
for the waste management cycle […], the direct and indirect costs of the entire 
waste management cycle may be covered in full […] as follows: […]; (b) 
municipalities may make a specific increase in the additional tax on electricity 
excise duty referred to in Article 6(1)(a) and (b) of Decree-Law No 511 of 
28 November 1988, […] by means of an increase not exceeding the amount in 
force of the above-mentioned additional tax.’ 
Decreto legislativo del 14 marzo 2011, n. 23 (Legislative Decree No 23 of 
14 March 2011), Article 2(6): ‘From 2012, the additional tax on the excise duty on 
electricity referred to in Article 6(1)(a) and (b) of Decree-Law No 511 of 
28 November 1988, converted, with amendments, by Law No 20 of 27 January 
1989, shall cease to apply in ordinary-statute regions […].’ 
Decreto-legge del 2 marzo 2012, n. 16 (Decree-Law No 16 of 2 March 2012), 
Article 4(10): ‘With effect from 1 April 2012, in order to coordinate the national 
tax provisions applied to the consumption of electricity with the provisions of 
Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning 
the general arrangements for excise duty and repealing Directive 92/12/EEC, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-645/23 
 
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Article 6 of Decree-Law No 511 of 28 November 1988, converted, with 
amendments, by Law No 20 of 27 January 1989, is hereby repealed.’ 
Legislative Decree No 504 of 26 October 1995 
Article 2(1): ‘In respect of excise goods, the tax debt shall be incurred at the time 
of their production, including extraction from the subsoil if the excise duty is 
applicable, or on their importation.’ 
Article 53(1)(a): ‘The persons liable to pay excise duty on electricity shall be: (a) 
persons billing electricity to final consumers, referred to as “vendors”.’ 
Article 16(3): ‘The claims which persons liable to excise duty have against the 
transferees of products on behalf of whom those persons have paid that tax may be 
charged by way of recovery […].’ 
Article 14: ‘1. Excise duty shall be reimbursed where it has been unduly paid; […] 
2. […] reimbursement must be requested within two years of the date of payment 
or of the date on which the right to reimbursement may be exercised, or the right 
to reimbursement shall be forfeited. […] 
4. Where, at the end of court proceedings, the person liable to pay the excise duty 
is ordered to repay to third parties sums unduly levied by way of recovery of 
excise duty, the reimbursement shall be requested by that person within 90 days of 
the date when the judgment ordering repayment of the sums becomes res judicata, 
or the right to request reimbursement shall be forfeited.’ 
Article 2033 of the Civil Code: ‘Any person making an undue payment shall be 
entitled to recover the sum paid.’ […]’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 1 October 2009, an electricity supply company (the appellant) concluded a 
contract for the periodic supply of electricity with a customer company (the 
respondent). Until 1 April 2012, the date on which Article 6 of Decree-Law 
No 511/1988 was repealed, the electricity company paid the State the additional 
excise duty on the product sold to the customer company and requested from the 
latter, and obtained, under the recovery mechanism, reimbursement of the amount 
paid. 
2 Believing the additional excise duty at issue to be contrary to EU law, the 
customer company brought an action before the District Court of Bologna seeking 
an order that the electricity company should repay the amount paid. By order of 
19 April 2021, the District Court of Bologna granted the application and held that 
Article 6 of Decree-Law No 511/1988 was contrary to Article 1(2) of Directive 
2008/118/EC, disapplied the domestic provision and ordered the electricity 
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company to reimburse the payments made to it from the expiry of the deadline for 
transposing the directive until the time the tax was abolished. 
3 The electricity company initially complied with the order and repaid the customer 
company the amount of the payments made. It then appealed to the Court of 
Appeal of Bologna, requesting that the order be amended and that the sum paid be 
refunded to it. 
The essential arguments of the parties in the main proceedings 
4 The appellant contests the order of the District Court of Bologna in so far as it 
maintained that: – the additional tax and the excise duty are different; – the legal 
principles laid down by the Court of Justice of the European Union in the context 
of the reference for a preliminary ruling are enforceable erga omnes irrespective 
of the self-executing nature of the directive. According to the appellant, the 
additional tax and the excise duty are not different taxes: the additional tax is 
merely an increase in the rate of the excise duty. In the appellant’s view, therefore, 
it does not constitute ‘(an)other indirect tax’ for the purposes of Article 1(2) of the 
above-mentioned directive. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court points out that the order of the District Court of Bologna 
follows well-established case-law of the Corte di Cassazione (Court of Cassation) 
according to which the rules governing reimbursement of the additional tax are 
compatible with EU law, since, in the absence of common rules on the 
reimbursement of taxes, it is the Member States that regulate such reimbursement 
in compliance with the principles of equivalence and effectiveness (see, to that 
effect, judgments of the Court of Justice of the European Union of 15 March 
2007, Reemtsma Cigarettenfabriken, C-35/05, EU:C:2007:167, paragraph 37; of 
7 November 2018, K, B, C-380/17, EU:C:2018:877, paragraphs 56 and 58; and of 
14 February 2019, Nestrade (C-562/17, EU:C:2019:115, paragraphs 40 and 41). 
Thus, the user may claim reimbursement of the additional tax from the transferor 
and it is only if reimbursement by the transferor is impossible or excessively 
difficult, as in the event of its insolvency, that the State may be applied to (see, to 
that effect, judgments of the Court of 27 April 2017, Farkas, C-564/15, 
EU:C:2017:302, paragraph 57, and of 31 May 2018, Kollroß, C-660 and 
C-661/16, EU:C:2018:372, paragraph 66). 
6 According to that line of case-law, the additional tax and the excise duty constitute 
two separate taxes, but the additional tax cannot have the specific purposes 
required by Article 1(2) of Directive 2008/118/EC: its sole objective is ‘providing 
the necessary resources to regional and local financial institutions, in order to 
ensure the performance of the institutional tasks’ (preamble to Decree-Law 
No 511/1988), whereas, according to the District Court of Bologna, its 
hypothetical further purpose of supporting the waste disposal service is indicated 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-645/23 
 
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by the law as purely potential and it has not been proved that it was pursued in the 
present case. In that regard, the referring court points out that the interpretation 
given so far to the concept of ‘specific purposes’ by the Court of Justice, followed 
by the District Court of Bologna, precludes the purpose of the additional tax at 
issue being included within that concept. 
7 A minority of the case-law on the substance of the case holds, however, that the 
additional tax is not another indirect tax for the purposes of Article 1(2) of that 
directive but merely an increase in the excise duty on electricity. 
8 In the context of the question as to whether the additional tax may be regarded as 
another electricity tax, the referring court notes that the excise duty and the 
additional tax have a partially overlapping structure and rules; in particular, the 
additional tax constitutes an increase in the rate of the excise duty and has 
identical methods of assessment and collection. In the referring court’s view, the 
doubt remains, however, as to whether the additional tax at issue is to be regarded 
as different from excise duty. The uncertainty in that regard is confirmed by a 
similar request for a preliminary ruling from the German court, the subject matter 
of which is in part similar as regards an additional tax on heated tobacco (Case 
C-336/22). According to the referring court, a literal, global and teleological 
interpretation of Article 1(2) of the directive precludes the classification of the 
excise duty on electricity and the additional tax as a single indirect tax, since both 
entail independent obligations to provide services. 
9 As regards the effects of Article 1(2) of the above-mentioned directive, the 
referring court notes that some of the case-law, in particular that of the Court of 
Cassation, supports the obligation to disapply paragraphs 1 and 2 of Article 6 of 
Decree-Law No 511/1988, disregarding the horizontal or vertical direct effect of 
Article 1(2) of the directive and invoking the principle of the immediate 
applicability of the interpretation of EU law given by the Court of Justice. 
However, the referring court notes that, in the cases in which the Court of 
Cassation has ruled, the addressee of the claim for repayment has always been the 
public administration, whereas, in the present case, the appellant is not a public 
undertaking and the relationship forming the subject matter of the dispute, 
although dependent on a vertical relationship, is horizontal in nature. The referring 
court also notes that the Court of Cassation has held that a user may, in 
compliance with the principle of effectiveness, bring an action against the vendor 
for recovery of sums unduly paid or, as the case may be, against the State for 
compensation for loss or damage resulting from incorrect transposition of the EU 
directive. 
10 The case-law that takes a different approach accepts in certain cases that 
Article 1(2) of the above-mentioned directive is capable of producing negative 
effects vis-à-vis third parties, or maintains that the ineffectiveness of self-
executing directives in horizontal relations prevents a customer from relying on it 
against the supplier, so that only protection for loss and damages can be relied on 
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in that event (see, in that regard, judgment of the Court of Justice of 19 November 
1991, Francovich, C-6/90 [and] C-9/90, EU:C:1991:428). 
11 The referring court points out that the Court of Justice has repeatedly set out the 
principle that directives, by imposing obligations on Member States alone, may 
create advantages for individuals vis-à-vis the State but cannot confer rights on 
individuals in relations between individuals. In the referring court’s view, 
however, the limits of the prohibition on the horizontal effect of directives have 
not been expressly clarified. 
12 Since the judgment in Link Logistic, the Court of Justice, in its judgment of 
24 June 2019, Popławski, C-573/17, EU:C:2019:530, paragraphs 61 and 62, ruling 
on a framework decision but extending its reasoning to directives, seems to equate 
direct effect and disapplication. The judgment of 18 January 2022, Thelen 
Technopark Berlin GmbH (C-261/20, EU:C:2022:33, paragraph 33) recognises 
the possibility for a court to disapply a national provision that is contrary to a 
provision of EU law that does not have direct effect. 
13 According to the referring court, there is a distinction in the case-law of the Court 
of Justice between cases where a directive is intended to regulate relations 
between individuals and those where it is intended to regulate vertical relations 
between individuals and States involving only incidentally or by extension 
relations between individuals: in the former the directive may not be invoked 
against an individual in order to change their rights or obligations, but serves 
solely as a parameter for the lawfulness of domestic provisions; in the latter, 
however, it may give rise to ‘mere adverse repercussions on the rights of third 
parties’ (see judgments of 7 January 2004, Delena Wells, C-201/02, 
EU:C:2004:12, paragraph 57; of 7 July 2008, Arcor AG & Co. KG, C-152/07 to 
C-154/07, EU:C:2008:426, paragraph 36) or may even be applied in horizontal 
relations (see judgment of 26 September 2000, Unilever, C-443/98, 
EU:C:2000:496, paragraph 51). 
14 According to the referring court, recognising the applicability of Article 1(2) of 
the directive to a horizontal relationship that is dependent on a vertical 
relationship would implement the principles of equivalence and effectiveness, 
avoiding the unreasonable discrimination against individuals who would 
otherwise have to hope that the other party were unable to fulfil its obligations, in 
order to then be able to claim reimbursement from the State of the sum unduly 
paid. If the undertaking were in a position to repay the sum, users would not be 
able to rely, as against the other party to the contract, on the unlawfulness of the 
tax paid by them. Only the protection of loss or damages would therefore be 
possible, and that would increase the burden of proof on the individual (see 
judgment of 30 September 2003, Köbler, C-224/01, EU:C:2003:513, 
paragraphs 51 to 56). 
15 Finally, the referring court notes that the subject matter of the present reference 
for a preliminary ruling is partially the same as the reference for a preliminary 
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ruling from the Tribunale di Como (District Court, Como), whose proceedings are 
currently pending (Case C-316/22).