Opinion of the Advocate General — ECLI:EU:C:2023:885
Date: 2023-11-16
Language of the case: Italian
Subject matter: Taxation;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Approximation of laws;Acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-316/22 – 1 
Case C-316/22 
Request for a preliminary ruling 
Date lodged: 
11 May 2022 
Referring court: 
Tribunale di Como (Italy) 
Date of the decision to refer: 
28 April 2022 
Applicants: 
Gabel Industria Tessile SpA 
Canavesi SpA 
Defendants: 
A2A Energia SpA 
Energit SpA 
Agenzia delle Dogane e dei Monopoli 
  
TRIBUNALE DI COMO (COMO DISTRICT COURT) 
SECONDA SEZIONE CIVILE (SECOND CIVIL DIVISION) 
ORDER FOR REFERENCE TO THE COURT OF JUSTICE 
OF THE EUROPEAN UNION 
in the civil case at first instance […] between 
GABEL INDUSTRIA TESSILE S.P.A., […] 
APPLICANT 
and 
EN 
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A2A ENERGIA S.P.A., […] 
DEFENDANT 
and 
AGENZIA DELLE DOGANE E DEI MONOPOLI (CUSTOMS AND 
MONOPOLIES AGENCY, Italy), […] 
THIRD-PARTY DEFENDANT 
which has been joined to the civil case at first instance […] between 
CANAVES1 S.P.A., […] 
APPLICANT 
and 
ENERGIT S.P.A., […] 
AGENZIA DELLE DOGANE E DEI MONOPOLI (CUSTOMS AND 
MONOPOLIES AGENCY, Italy), […] 
DEFENDANTS 
Subject matter of the main proceedings 
1 In both of the joined cases, the applicant – which had concluded a contract with 
the defendant for the supply of electricity at its production site and had paid to the 
defendant the consideration due, including the amounts charged, in 2010-2011, as 
additional provincial tax on electricity excise duties, laid down by Article 6 of d.l. 
511/1988 (Decree-Law No 511/1988), as amended by Article 5 of d.lgs. 26/2007 
(Legislative Decree No 26/2007) – instituted legal action to obtain a repayment of 
those sums on the ground that the rule establishing that tax was contrary to 
[European Union] law. 
Provisions of national law and case-law relied on 
2 Article 5 of Legislative Decree No 26/2007 amended Article 6 of Decree-Law 
No 511/1988, creating an additional tax on electricity excise duties. 
3 Directive 2008/118/EC establishes, in Article 1, that ‘Member States may levy 
other indirect taxes on excise goods for specific purposes’, in Article 9, that 
‘Excise duty shall be levied and collected and, where appropriate, reimbursed or 
remitted according to the procedure laid down by each Member State’, and in 
Article 48, that ‘Member States shall adopt and publish, not later than 1 January 
GABEL INDUSTRIA TESSILE AND CANAVESI 
 
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2010, the laws, regulations and administrative provisions necessary to comply 
with this Directive with effect from 1 April 2010.’ 
4 In implementing that directive, d.lgs. 48/2010 (Legislative Decree No 48/2010), 
did not intervene in relation to Article 6 of Decree-Law No 511/1988. It was only 
in Article 2 of d.L 23/2011 (Decree-Law No 23/2011) that the Italian legislature 
established that ‘As from 2012, the additional tax on electricity excise duties 
referred to in Article 6(1)(a) and (b) of decreto-legge 28 novembre 1988, n. 511 
(Decree-Law No 511 of 28 November 1988), converted, with amendments, by 
legge 27 gennaio 1989, n. 20 (Law No 20 of 27 January 1989), shall cease to be 
applied in the ordinary-statute regions’, and subsequently definitively repealed 
that tax, as of 1 April 2012, by means of Article 4 of d.L 16/2012 (Decree-Law 
No 16/2012). 
5 It is also necessary to review the Italian legal framework in terms of tax refund 
claims, in the absence of corresponding EU rules, in order to verify whether that 
framework complies with the principles of equivalence and effectiveness (see 
judgments of 6 October 2005, Case C-291/03 MyTravel [2005] ECR I-8477, 
paragraph 17; of 15 March 2007, Case C-35/05 Reemtsma Cigarettenfabriken 
[2007] ECR I-2425, paragraph 37; and of 27 April 2017 Case C-564/15 Farkas). 
6 Article 14 of d.lgs. 504/1995 (Legislative Decree No 504/1995) (the. Testo Unico 
Accise (Consolidated Text on Excise)) states, in paragraph 1, that ‘Excise duty 
shall be reimbursed when it has been unduly paid’, in paragraph 2, that 
‘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’, and in paragraph 4, that ‘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’. 
7 The reasoning underpinning the abovementioned paragraph 4 is the circumstance 
that ‘the persons liable to pay the excise duty on electricity are … the persons 
billing the electricity to final consumers’ (Article 53 of Legislative Decree 
No 504/1995), although they are able to shift the economic burden onto final 
consumers (Article 16(3) of Legislative Decree No 504/1995: ‘Claims by persons 
liable for payment of excise duty and by holders of licences for the operation of 
commercial warehouses for tax-paid energy products against the persons to whom 
those have been sold for which those persons liable for payment have nevertheless 
paid that tax, may be charged by way of recovery …’). Moreover, Article 29(2) of 
L. 428/1990 (Law No 428/1990) states that ‘Customs import duties, 
manufacturing taxes, consumption taxes, the tax on sugar and State duties levied 
under national provisions incompatible with Community legislation shall be 
repaid unless the amount thereof has been passed on to others, a circumstance that 
cannot be assumed by tax offices on the basis of presumption’. 
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8 In this regulatory context, as interpreted by the case-law of the Supreme Court 
(Court of Cassation, judgments Nos 14200/2019, 27099/2019 and 29980/2019), 
the relationships between supplier and customs authorities, on the one hand, and 
supplier and final consumer, on the other, are independent (and subject to separate 
jurisdictions: tax for the former and ordinary for the latter): the final consumer 
may bring a civil action for the recovery of an undue payment against the supplier 
and, if this is upheld, it will be the supplier (within ninety days of the date when 
the relevant judgment becomes res judicata) who will be able to exercise the right 
to reimbursement of the excise duty unduly paid against the tax authorities. Only 
where an action against a supplier proves to be excessively burdensome may the 
consumer, as an exception to the rule, also seek reimbursement from the tax 
authorities. These latter situations have been identified by the Court of Justice as 
being due either to the procedural arrangements and requirements laid down by 
the Member State for the submission of applications for reimbursement by the 
taxable person concerned (see judgment of 21 March 2018, Case 
C-533/16 Volkswagen AG) or to that person’s insolvency (see judgments of 
27 April 2017, Case C-564/15, cited above; of 31 May 2018, Cases C 660/16 and 
C-661/16 KollroB and Wirti, paragraph 66; and of 11 April 2019, Case 
C-691/17 PORR Épitési Kft., paragraph 42). 
Grounds for the reference 
9 Following the judgments in cases C-553/15 and C-103/17, in which the Court of 
Justice laid down the rules for interpreting the abovementioned directive, the 
Suprema Corte di Cassazione (Supreme Court of Cassation), using an approach 
that has been confirmed on many occasions and is, therefore, now consolidated, 
established – for reasons that need not be reiterated here – that the additional 
provincial tax in question lacks a specific purpose and, therefore, should be 
disapplied on the basis that it is contrary to Article 1(2) of Directive 2008/118/EC 
[…]. 
10 Today’s case therefore forms part of an ongoing strand of litigation concerning the 
fate of the sums paid as an additional tax on electricity excise duties in the period 
between the deadline allowed for Member States to comply with the directive and 
the point when the Italian legislature ordered that the tax would cease to apply. 
11 It should be pointed out that the sole causa petendi for the legal claims 
underpinning this legal action, which would make it possible for the payment 
made by the applicant to be classified as undue, is the unlawfulness of the tax 
charged on the basis that it is contrary to [Union] law. 
12 In the view of this court, the case-law of the Italian lower courts has been split 
between two different approaches. 
GABEL INDUSTRIA TESSILE AND CANAVESI 
 
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13 According to the first, 1 which would reject the application, the court is not 
permitted, in a dispute between private individuals, to disapply a national 
provision conflicting with an EU directive, as this would result in a ‘horizontal 
direct effect’, which is precluded by the Court of Justice of the European Union. 
That Court, in fact, has only asserted a ‘vertical direct effect’, namely a situation 
whereby, once the transposition period has expired, individuals may enforce 
against the State the rights conferred on them by a directive that has not been 
transposed or has been incorrectly transposed, provided that certain requirements 
are met (Court of Justice of the EEC, 4 December 1974, Van Duyn, case 41/74, 
EU:C:1974:133, paragraph 12). Conversely, this is not possible when such a 
directive is invoked by an individual against other private individuals (Court of 
Justice of the EEC, 26 February 1986, Marshall, C-152/84, EU:C:1986:84, 
paragraph 48; Court of Justice of the EC, 14 July 1994, Faccini Dori, C 91/92, 
EU:C: 1994:292, paragraph 24; Court of Justice of the EU, 10 October 2017, 
Farrel, C-413/15, EU:C:2017:745, paragraph 31; Court of Justice of the EU, 
7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraphs 41-45 and 49; Court 
of Justice of the EU, 24 June 2019, Poplawski, C-573/17, EU:C:2019:530, 
paragraphs 52-68). Therefore, Article 1(2) of Directive 2008/118/EC – even were 
we to accept that it meets the requirements of [Union] case-law to produce direct 
effects – would still not justify the non-application of national law in a dispute 
between private individuals, because that would otherwise have the effect of 
recognising an additional obligation for a private individual (in this case, the 
obligation for the supplier to repay to the final user the sums collected as a result 
of the exercise of the abovementioned right to recovery). However, the Court of 
Cassation, on the one hand, has asserted the need to disapply Article 6 of Decree-
Law 511/1988 as it conflicts with Article 1(2) of Directive 2008/118/EC, but – in 
respect of vertical direct effects – only in disputes between a final user and the tax 
authorities (and the disputes decided by the Court of Justice’s rulings of 5 March 
2015 in case C-553/13 and of 25 July 2018 in case C-103/17 fall into this 
category). On the other hand, that Court appears to have ruled out the possibility 
that the absence of horizontal direct effects of directives constitutes grounds for 
justifying, in exceptional cases, a legitimate right on the part of a final user to 
request reimbursement from the tax authorities, a possibility that is, rather, only 
attributable to the person liable for payment of the tax (Court of Cassation, 
judgment No 33603/2019: ‘The fact of being impossible or excessively difficult is 
not per se established by the circumstance that the undue nature of the tax 
payment arises from the fact that a national provision is contrary to a directive’). 
14 The second approach 2 – which, conversely, would uphold the application – 
invokes the obligation ‘to interpret domestic law so far as possible, once the 
period for transposition has expired, in the light of the wording and the purpose of 
the directive concerned with a view to achieving the results sought by the 
directive, favouring the interpretation of the national rules which is the most 
 
1 […]. 
2 […] (national case-law). 
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consistent with that purpose in order thereby to achieve an outcome compatible 
with the provisions of the directive’ (Court of Justice of the EU, Grand Chamber, 
4 July 2006, C-212/04). More specifically, since the possibility for a final 
consumer to bring an action for recovery of undue payment against the taxable 
person is a necessary condition without which the State’s opposition to the 
consumer’s claim for repayment against it would not be lawful (Court of Justice 
of the EU, 20 October 2011, Case C-94/10), the principle that European directives 
are only vertically effective does not preclude the determination of an undue 
payment in the recovery relationship, by virtue of the link between that 
relationship and the tax relationship, in which the prohibition laid down by the 
European rule operates directly. On the other hand, it should be noted that the 
Court of Justice has asserted the principle of solely vertical direct effect of 
directives in all cases where the directive – the application of which was at issue – 
directly affected the relationship relied on in the main proceedings: whether it was 
the horizontal relationship between two private individuals, in respect of which 
the Court prohibited disapplication (C-152/84, C-91/92, C-282/10, C-176/12, 
C-351/12 and C-671/13), or whether it related to a vertical effect, where a party 
wished to assert the obligation resulting from the directive against a public body, 
an obligation in that case legitimately deriving from the directive, even if not 
implemented in national law (C-413/15, C-397/01 to C-403/01, C-122/17). 
Conversely, [the Court of Justice] has never had to deal with a case similar to the 
case in the disputes in question, in which the directive directly affects the vertical 
relationship between the tax authority and the taxable person, which is preliminary 
to the relationship at issue between the taxable person and the third party from 
whom money has been recovered and who seeks repayment of the amount paid. In 
conclusion, it was held that the due disapplication of the rule imposing the 
additional tax (even if known only incidentally by the judge in the dispute 
between private individuals 3), resulting in the unlawfulness of the taxation in the 
relationship between the body concerned and taxable person – and thus in the 
vertical relationship – could only also invalidate the reason for the payment, by 
the user, of the part of the price corresponding to that tax in the horizontal 
relationship. 
15 Finally, it should be pointed out that there are currently two pending questions of 
constitutional legitimacy […] (national cases pending before the Constitutional 
Court) 
16 In those circumstances, it appears to the author that the second approach is 
preferable in so far as it ensures compliance with the principle of effectiveness 
and remedies the consequences of the incompatibility of the tax with European 
Union law by neutralising the economic burden that – just as it could not have 
been borne by the supplier – was unduly passed on to the consumer, who 
ultimately bore it in practice, and asserts that national rules that do not allow a 
purchaser to apply directly to the State are not contrary to European Union law. In 
 
3 […] (national case-law). 
GABEL INDUSTRIA TESSILE AND CANAVESI 
 
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other words, rejecting the application submitted by the final purchaser for 
reimbursement of a tax – where the undue payment of that tax is exclusively due 
to an infringement of [EU] law – on the basis that directives do not have 
horizontal direct effect would result in the collapse of the delicate balance that 
allowed the Court of Justice, in Case C-94/10, to hold that the principle of 
effectiveness was applied in a national system similar to the Italian one, affirming 
the following principle: ‘a Member State may, in principle, oppose a claim for the 
reimbursement of a duty unduly paid made by the final consumer to whom that 
duty has been passed on, on the ground that it is not that consumer who has paid 
the duty to the tax authorities, provided that the consumer – who, in the final 
analysis, bears the burden of that duty – is able, on the basis of national law, to 
bring a civil action against the taxable person for recovery of the sums unduly 
paid. However, if reimbursement by the taxable person were to prove impossible 
or excessively difficult – in particular, in the case of the insolvency of that 
person – the principle of effectiveness requires that the purchaser be able to bring 
his or her claim for reimbursement against the tax authorities directly and that, to 
that end, the Member State must provide the necessary instruments and detailed 
procedural rules (see Reemtsma Cigarettenfabriken, paragraph 41)’. 
17 Acceptance of this second approach, however, does not seem possible merely on 
the basis of the principle of conforming interpretation, since, as indicated above, 
there are principles of European Union law that are in – real or apparent – conflict. 
18 In conclusion, this reference for a preliminary ruling is justified in order to settle 
the question as to which of the two principles (solely vertical direct effect of 
directives, on the one hand, and principle of effectiveness, on the other) should 
prevail where one cannot be respected without sacrificing the other. 
First question referred 
19 In general, does the system of sources of European Union law and, specifically, 
the third paragraph of Article 288 TFEU preclude the disapplication by a national 
court, in a dispute between private individuals, of a provision of national law that 
is contrary to a clear, precise and unconditional provision of a directive that has 
not been transposed or has been incorrectly transposed, thereby imposing an 
additional obligation on an individual, where that constitutes, according to the 
national legal system (Article 14(4) of Legislative Decree No 504/1995), a 
prerequisite for the latter to be able to assert against the State the rights conferred 
on him or her by that directive? 
Second question referred 
20 Does the principle of effectiveness preclude national legislation (Article 14(4) of 
Legislative Decree No 504/1995) that does not allow a final consumer to seek 
reimbursement of undue tax directly from the State, but grants him or her only the 
option of bringing a civil action for recovery against the taxable person, who alone 
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is entitled to obtain reimbursement from the tax authority, where the sole ground 
for the unlawfulness of the tax – namely the fact that it is contrary to a [Union] 
directive – can be relied on only in the relationship between the person liable to 
pay and the tax authority, but not in the relationship between the person liable to 
pay and the final consumer, thus effectively preventing the application of the 
reimbursement or, in order to ensure compliance with that principle, should the 
final consumer be recognised as having direct standing in such a case to bring an 
action against the Treasury, as a case where it is impossible or excessively 
difficult to obtain from the supplier a refund of the tax unduly paid? 
[…] 
Como, 28 April 2022 
[…] 
[official wording]