Opinion of the Advocate General — ECLI:EU:C:2011:181
Date: 2011-03-24
Language of the case: Danish
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 1. European Union law – Direct effect – National duties incompatible with European Union law – Repayment – Refusal – Condition 2. European Union law – Direct effect – National duties incompatible with European Union law – Repayment – Claim for reimbursement brought by a final purchaser which has not itself paid the duty to the tax authorities 3. European Union law – Direct effect – National duties incompatible with European Union law – Claim for damages 1. The right to a refund of charges levied in a Member State in breach of the rules of Union law is the consequence and complement of the rights conferred on individuals by the provisions of Union law prohibiting such charges. The Member State is therefore required in principle to repay charges levied in breach of Union law. The repayment of duties wrongly levied can be refused only where repayment would entail unjust enrichment of the persons concerned, that is to say, where it is established that the person required to pay such charges has actually passed them on to the purchaser directly. (see paras 20-21) 2. The rules of Union law must be construed as meaning that a Member State may oppose a claim for reimbursement of a duty unduly paid, brought by the purchaser to whom that duty has been passed on, on the ground that it is not the purchaser who has paid the duty to the tax authorities, provided that the purchaser is able, on the basis of national law, to bring a civil action against the taxable person for recovery of the sum unduly paid and provided that the reimbursement, by that taxable person, of the duty unduly paid is not in practical terms impossible or excessively difficult. However, if reimbursement by the taxable person were to prove impossible or excessively difficult, in particular, in the case of the latter’s insolvency, the principle of effectiveness requires the purchaser to be able to bring his claim for reimbursement against the tax authorities directly and, to that end, the Member State to provide the necessary instruments and detailed procedural rules. (see paras 28-29, operative part 1) 3. The rules of Union law must be construed as meaning that a Member State may reject a claim for damages brought by a purchaser to whom a duty unduly paid has been passed on by the taxable person, on the ground that there is no direct causal link between the levying of that duty and the damage suffered, provided that the purchaser is able, on the basis of national law, to bring that claim against the taxable person and provided that the compensation, by that taxable person, of the damage suffered by the purchaser is not in practical terms impossible or excessively difficult. However, if it were to prove impossible or excessively difficult for the taxable person to compensate the purchaser who bore the financial burden of the duty unduly paid and passed on to him for the damage suffered, in particular, in the case of the latter’s insolvency, the principle of effectiveness requires the purchaser to be able to bring his claim for reimbursement against the State directly, without that State’s being able legitimately to rely on the lack of a direct causal link between the levying of the duty that was not due and the damage suffered by the purchaser. (see paras 38-39, operative part 2)