62000CC0255_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I. Introduction
1 This is not the first time that the Court of Justice, in response to questions put to it by Italian courts seeking a preliminary ruling, has had to rule on whether the imposition of limitation periods or time-limits for bringing actions for the reimbursement of tax paid but not due to the Administration complies with Community law. (1)
2 Even if the specific doubt in the mind of the Tribunale di Trento (District Court), Trento, has not in this case been dispelled by Community case-law, the reply is implicit in an extensive body of judgments of the Court of Justice, (2) and could therefore have perfectly well been given using the quicker and more efficient route under Article 104(3) of the Rules of Procedure. (3)
3 The Italian court seeks to ascertain whether the establishment of a transitional period of 90 days in which to bring actions which, having been subject to a five-year limitation period have, owing to a change in legislation introduced with retroactive effect, become subject to a three-year time-limit, infringes the principle of effectiveness.
II. Facts of the main action and the question referred for a preliminary ruling
4 The Italian company Grundig Italiana SpA (hereinafter `Grundig') brought an action against the Ministero delle Finanze for a declaration that the provisions imposing a consumption tax on audiovisual and photo-optic products are incompatible with Community rules, (4) and an order requiring the Italian Administration to repay the sums the company had paid by way of that tax between 1 January 1983 and 31 December 1992, (5) arising from the import of audiovisual products via the Trento customs post.
5 That incompatibility has been established since the Court of Justice, in reply to a first preliminary question referred by the Tribunale di Trento in the same proceedings, held that `Article 95 of the Treaty is to be interpreted as precluding a Member State from introducing and levying a consumption tax in so far as the taxable amount and the procedure for collecting the tax are different for domestic products and for products imported from other Member States'. (6)
6 Having heard the proceedings on the claim for reimbursement (7) and having regard to the defence advanced by the Ministero delle Finanze that the action is time-barred, the Tribunale di Trento asks the Court of Justice the following questions:
`Is a national provision, namely the last part of Article 29(1) of Law No 428 of 29 December 1990, compatible with Community law and in particular with the often stated principle of effectiveness [...] where it lays down a period of grace of 90 days within which, in order to avoid the three-year time-limit introduced retroactively in place of a previous five-year limitation period, a party enjoying a right to recover a sum paid but not due, based on Community law and resulting from a payment made prior to the entry into force of the said provision must bring a legal action?'
III. The proceedings before the Court of Justice
7 Grundig, the Italian Republic and the Commission have submitted written observations in these proceedings, within the time-limit set by Article 20 of the EC Statute of the Court of Justice.
8 Since none of them has sought to make oral representations, the Court decided, under Article 104(4) of its Rules of Procedure, to dispense with a hearing.
IV. The Italian legal context
9 Italian Law No 428 of 29 December 1990 (hereinafter `the Law' or `Law No 428'), (8) laid down the provisions governing the repayment of certain amounts of tax wrongly levied by the customs authorities.
10 Article 29 of the Law was headed `Repayment of taxes recognised to be incompatible with the Community rules'. Article 29(1) extended the application of the five-year limitation period laid down by Article 91 of the Consolidated version of the legislative provisions relating to customs duties to cover all actions brought for the refund of sums paid in connection with customs operations. At the same time, it reduced that time-limit to three years and deferred application of the new time-limit by 90 days. (9)
11 Law No 428 entered into force on 27 January 1991, with the effect that those entitled to bring actions seeking recovery of tax paid but not due on the grounds that it was incompatible with Community law had, until 27 April of that year, a period of grace in which to bring those actions which were subject to a time-limit of five years.
V. The question referred
12 The Italian Republic argues that the Tribunale di Trento's question is based on an erroneous interpretation of Article 29(1) of Law No 428 and that consequently, in its view, the Court of Justice is not in a position to furnish a reply. Furthermore, the Commission's reading of the aforementioned provision is different from that suggested by the referring court.
13 Neither party's position is tenable, since the Court of Justice has no jurisdiction to interpret national law, and still less to do so otherwise than as it is interpreted in the order for reference. In proceedings for a preliminary ruling the referring court is to be given a reply helpful for the purposes of determining the dispute pending before that court and, to that end, the Court of Justice has power to rephrase the question, but may under no circumstances determine how national law is to be interpreted which is a matter, in all cases, for the national court. (10)
1. The principle of equivalence
14 The Commission proposes that the question be rephrased and, going further than the referring court, requests the Court of Justice, in addition to giving a reply on the 90-day transitional period, to clarify whether, in terms of the principle of equivalence, the reduction by two years period for bringing actions is compatible with the Community legal order. (11)
15 The Court of Justice has already given a reply to that second query. It has held on repeated occasions that, in the absence of a Community provision, it is for Member States to regulate the procedures for protecting the rights which individuals derive from the legal order of the European Union. That freedom of regulation vested in the domestic legislative authorities is, none the less, subject to an initial limit: the rules governing the channels for bringing actions based on Community law must not be less favourable than those laid down for similar domestic actions. This is what is known as the principle of equivalence. (12)
16 More specifically, however it has been made clear in point 1 of the operative part of the Aprile judgment, with respect to Article 29(1) of Law No 428, that `Community law does not preclude the application of a national provision which, for all actions for repayment of customs charges, imposes a special time-limit of five, and subsequently three, years, instead of the ordinary limitation period of 10 years for actions for the recovery of sums paid but not due, provided that that time-limit, which is similar to that imposed for certain taxes, applies in the same way to actions based on Community law for repayment of such charges as to those based on national law'. (13)
17 In any event, as I have already pointed out, the Commission bases itself on an analysis of the applicable law which differs from that of the Italian court. According to the Commission, on the dates to which the dispute relates, (14) actions for recovery based on national law were subject to a limitation period of five years, under the last paragraph of Article 4 of the aforementioned Law No 53/1983, whilst those under Community law were subject to a time-limit of three years, by virtue of Article 29(1) of Law No 428.
18 That is not the interpretation given by the Tribunale di Trento, in whose view the five-year limitation period laid down in the aforementioned Article 4 of Law No 53 also operates in the case before it. (15) The referring court maintains that from the entry into force of that law the five-year time-limit and, on expiry of the 90-day transitional period, the three-year limit is applicable. It holds that those time-limits apply likewise to actions not yet brought relating to payments wrongly made prior to the entry into force of the law, the right to recover which had already accrued by that date. (16) At no time, however, has it suggested that actions for recovery based on national law might be subject to more favourable conditions as regards the time-limit for bringing those actions.
19 In my Opinion in the case in which the Court delivered the Aprile judgment, I was called upon to respond to a similar argument and there stated that `according to the views expressed in the documents before the Court, the above-mentioned provision [(17)] applies without distinction to all kinds of actions for recovery of payments to customs, whether based on domestic law or on Community law '. (18) The Court of Justice shared that view in its judgment. (19)
20 Today I am also in a position to assert that, as is to be inferred from the order for reference, Article 29(1) of Law No 428 applies to indirect taxes on goods, and treats actions based on Community law in the same way as those founded on the national legal order. The Corte di Cassazione held this to be so in the judgment I have partially reproduced in footnote 19, and the Court of Justice in paragraph 22 of the Aprile judgment.
21 So, the Commission's thesis is wrong, and, consequently, the issue it raises, which stem from the principle of equivalence, is misplaced. Accordingly, the Court of Justice should not rule on it.
2. The principle of effectiveness
22 I therefore come back to the point from which discussion of this preliminary question should never have departed and on which the Tribunale di Trento had focused.
23 That court bases its view on a specific understanding of the temporal scope of the provision in Article 29(1) of Law No 428. In its opinion, the five and three-year periods laid down by that provision (20) apply to actions the cause of which arose through sums paid but not due prior to 27 January 1991, the date on which the law entered into force, but which had not yet been brought. According to its reasoning, the period for bringing such actions continued to be five years for the first 90 days after that entry into force and, on expiry of that period, became reduced to three years.
24 The national court's doubt lies in whether the 90-day transitional period is in keeping with the second of the limits on Member States' freedom to regulate procedures for safeguarding the rights which individuals derive from the Community legal order. That constraint consists of the fact that the rules they lay down must not make the exercise of such rights excessively difficult or virtually impossible. The rule thus described is known as the principle of effectiveness of Community law. (21)
25 On that point I must refer, once again, to my Opinion in the case which gave rise to the Aprile judgment. I there maintained that changes to the legal rules governing the bringing of actions are permissible, provided they are general legislative measures which allow the persons affected an adequate period conforming with the principle of effective judicial protection. If the change in the law maintains the possibilities of claiming recovery of levies paid and not due at a sufficient level, I do not believe that it should be regarded as incompatible with Community law. (22)
26 In other words, changes which do not render the exercise of the rights conferred by Community law impossible or excessively difficult are not contrary to that law. That answer, which is the only reply the Court of Justice can give to the Italian court, is inherent in the case-law. It is to be found in the judgments in FMC and Others, (23) Edis, (24) SPAC, (25) Ansaldo Energía and Others, (26) Aprile (27) and Dilexport. (28)
27 And I say there is no other reply which the Court of Justice can give because the determination of the extent to which changes in the law affect the bringing of actions must, with well-publicised exceptions, be made on the basis of domestic law. It is not possible to determine whether or not a 90-day transitional period, such as that in the present case, complies with the principle of effectiveness without having regard to all the factual and legal requirements, both procedural and substantive, which the domestic legal order imposes for the bringing of actions for recovery. Only with that overview, which the Italian courts alone have, is it possible to give a definitive answer.
28 I have on occasion, it is true, found a three-year time-limit to be sufficient. (29) As the court which has raised the question in this case points out, the Court of Justice has found the same period (30) and even a period of one year (31) to be in conformity with Community law, but has in all cases assessed given time-limits on the basis of the principle of equivalence, and never that of effectiveness. (32)
29 The fact is that, since it could not be otherwise and for the reasons I have already indicated, the Court of Justice has held that it falls to the national court to determine whether, in practice, the applicable procedure (the same applies as regards the time-limit imposed for the bringing of the action) makes it impossible or excessively difficult to exercise the rights conferred by Community law. (33)
30 I have on other occasions (34) expressed the doubts I harbour as regards the retroactive application of rules such as that in Article 29(1) of Law No 428. Those doubts turn into certainty in the case of an automatic and retroactive reduction in a limitation period or time-limit, on the grounds that the reduction is unexpected and contrary to the principle of the protection of legitimate expectations and to the principle of legal certainty. (35) It would in my submission be contrary to the rule of the effectiveness of Community law. (36) No such situation arises in the present case, however, in which the Italian legislation provides for a transitional period of 90 days, the reasonableness of which, in terms of effectiveness, it is a matter for the national court to assess, having regard to all the circumstances of fact and law pertaining in the domestic legal order.
31 Mindful of the foregoing considerations, I propose that the Court of Justice reply to the Tribunale di Trento that Community law does not preclude the application of a national provision establishing a transitional period for the entry into force of a new time-limit, shorter than that existing until that time, for persons entitled to reimbursement of sums paid but not due to bring the relevant actions, based on Community law and arising as the result of payments made before that national provision entered into force, provided that the transitional period, by reason of its length and of the other procedural and substantive circumstances of fact and law present in the national legal order, does not make it virtually impossible or excessively difficult to bring the actions in question.
VI. Conclusion
32 In keeping with the foregoing considerations, I propose that the Court of Justice should reply as follows to the question raised by the Tribunale di Trento:
`Community law does not preclude the application of a national provision establishing a transitional period for the entry into force of a new time-limit, shorter than that existing until that time, for persons entitled to reimbursement of sums paid but not due to bring the relevant actions, based on Community law and arising as the result of payments made before that national provision entered into force, provided that the transitional period, by reason of its length and of the other procedural and substantive circumstances of fact and law present in the national legal order, does not make it virtually impossible or excessively difficult to bring the actions in question.'
(1) - See the three judgments in Edis (Case C-231/96 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze [1998] ECR I-4951), SPAC (Case C-260/96 SPAC v Ministero delle Finanze [1998] ECR I-4997) and Joined Cases C-279/96 to C-281/96 Ansaldo Energía SpA v Amministrazione delle Finanze dello Stato, Amministrazione delle Finanze dello Stato v Marine Insurance Consultants Srl and GMB Srl and Others v Amministrazione delle Finanze dello Stato [1998] ECR I-5025. See also C-228/96 Aprile Srl, in liquidation v Amministrazione delle Finanze dello Stato [1998] ECR I-7141 and C-343/96 Dilexport Srl v Amministrazione delle Finanze dello Stato [1999] ECR I-579. I delivered the Advocate General's Opinion in all five cases. Advocate General Stix-Hackl has recently addressed the issue in the Opinion which she delivered on 31 January 2002 in Joined Cases C-216/99 and C-222/99.
(2) - See, in addition to those cited in the preceding footnote, Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989 and Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043. One can also refer to Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595, C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Another [1996] ECR I-389 and C-261/95 Palmisani v INPS [1997] ECR I-4025.
(3) - Consolidated version published in OJ 2001 C 34, p. 1.
(4) - Article 4 of Decree-Law No 953 of 30 December 1982 (Official Gazette of the Italian Republic (GURI) No 359, p. 9570), converted into law by Law No 53 of 28 February 1983 (GURI, supplement No 10, p. 1) and subsequently implemented by Ministerial Order of 23 March 1983 (GURI No 83, p. 2326).
(5) - LIT 112 236 330 770.
(6) - Case C-68/96 Grundig Italiana SpA v Ministero delle Finanze [1998] ECR I-3775.
(7) - That notwithstanding, in a judgment delivered on the same date as it issued the order for reference, the Tribunale di Trento found that the claim for reimbursement of sums paid prior to 22 July 1988 was time-barred, under the five-year limitation period laid down in the last paragraph of Article 4 of Decree Law 953/1982, subsequently converted into law by Law No 53/1983.
(8) - Law laying down provisions for the fulfilment of obligations deriving from Italy's membership of the European Communities (GURI, Supplement No 10, p. 5).
(9) - The provision reads: `The five-year period laid down in Article 91 of the Consolidated version of the provisions relating to customs duties [...] shall be deemed to apply to all claims and actions which may be brought for the refund of sums paid in connection with customs operations. That period, and also the limitation period laid down in Article 85 of the same instrument, shall be reduced to three years as from the 90th day following the entry into force of this Law.'
(10) - See, as an illustration, Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 7.
(11) - It asks the Court of Justice to reply as follows to the question raised: `Community law does not preclude the application of a national provision which reduces the time-limit on actions for the recovery of customs duties or taxes which are incompatible with the Community legal order provided that: (a) the time-limit referred to applies equally to actions for recovery based on Community law and to those based on internal law; (b) the national law laying down the reduction in the time-limit from five years to three establishes a reasonable transitional period for the reduction, that is, it enables those concerned to safeguard their rights to recover sums paid but not due which arose whilst the previous legislation was in force.'
(12) - See the judgments, cited above, in Edis, paragraph 34, SPAC, paragraph 38, Ansaldo Energía and Others, paragraph 16, Aprile, paragraph 18, and Dilexport, paragraph 25.
(13) - Emphasis added.
(14) - 1993.
(15) - In its judgment made on the same date as the order for reference, it held that the action for recovery of payments made prior to 22 July 1988 was extinguished as a result of the five-year limitation period. Grundig brought the action on 22 July 1993 (see the third plea in law in the order for reference).
(16) - See the eleventh and twelfth pleas in law in the order for referral.
(17) - I was referring to Article 29(1) of Law No 428.
(18) - Paragraph 18. I reached that conclusion following the case-law of the Corte di Cassazione (Court of Cassation) itself which, in a judgment of 6 November 1992, held that `Article 29(1) of Law No 428 of 1990 [...] imposes a single set of rules on the repayment of sums paid but not due in relation to a large number of duties (indirect taxes on goods) and treats as being the same, for those purposes, both duties collected under national provisions which are incompatible with Community rules and customs import duties, manufacturing and consumption taxes, etc., thus avoiding the creation of a ius singulare for Community-related reimbursements which renders them less easy to secure'.
(19) - See paragraph 22.
(20) - The first from 27 January and 27 April 1991 and the second from that latter date.
(21) - See the judgments cited in footnote 13.
(22) - Paragraphs 49 and 53.
(23) - Paragraph 63 and Article 4 of the operative part of the judgment.
(24) - Paragraph 34.
(25) - Paragraph 18.
(26) - Paragraph 16.
(27) - Paragraph 18.
(28) - Paragraph 25.
(29) - See paragraph 53 of my Opinion in the case which gives rise to the Aprile judgment. Also paragraph 39 of the Opinion in Dilexport.
(30) - See, for example, the judgments in Edis, SPAC and Aprile.
(31) - See the judgment in Palmisani.
(32) - See the operative parts of the judgments cited in the preceding two footnotes.
(33) - Paragraph 32, last part, of the Dilexport judgment.
(34) - Paragraph 40 of the Opinion in Aprile and paragraph 27 of that in Dilexport.
(35) - In the case of Article 29(1) of Law No 428, were it not for the 90-day period, parties entitled to bring actions to enforce rights arising three years prior to entry into force of the provisions would be fatally deprived of those rights.
(36) - Advocate General Geelhoed expressed a similar view in paragraph 62 of his Opinion delivered on 24 January 2002 in Case C-62/00, in which judgment has not yet been delivered.