61979CJ0811_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 811/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE DI APPELLO ( COURT OF APPEAL ), TURIN, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION )
AND
ARIETE S.P.A ., ROME,
Subject of the case
ON THE INTERPRETATION OF ARTICLES 12 ET SEQ . AND 85 ET SEQ . OF THE EEC TREATY,
Grounds
1 BY ORDER DATED 9 NOVEMBER 1979, RECEIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 10 DECEMBER 1979, THE CORTE D ' APPELLO, TURIN, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THE FOLLOWING QUESTION ON THE INTERPRETATION OF COMMUNITY LAW :
' ' IS THE REPAYMENT OF SUMS LEVIED BY A MEMBER STATE ON A PRIVATE IMPORTER BY WAY OF CERTAIN IMPORT CHARGES COMPATIBLE WITH THE RULES OF COMMUNITY LAW CONCERNED WITH THE IMPLEMENTATION OF A SYSTEM OF FREE COMPETITION WITHIN THE EEC, WHERE THE ORIGINAL PAYMENT WAS MADE BEFORE THE CHARGES WERE HELD, PURSUANT TO THE DIRECT APPLICABILITY OF COMMUNITY LAW PROHIBITING THE LEVYING OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, TO BE CHARGES HAVING THE EFFECT OF CUSTOMS DUTIES AND CONSEQUENTLY UNLAWFUL?
' '
2 THAT QUESTION AROSE IN PROCEEDINGS BETWEEN THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO AND ARIETE S.P.A . IN WHICH THE LATTER SOUGHT THE RECOVERY OF STATISTICAL CHARGES AND HEALTH INSPECTION CHARGES PAID BETWEEN 1 FEBRUARY 1968 AND 26 FEBRUARY 1972 ON THE IMPORT OF MILK FROM FRANCE .
3 IT IS NOT IN DISPUTE THAT THE CHARGES IN QUESTION CONSTITUTE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES AND THAT THE PROHIBITION ON IMPOSING THEM IN INTRA-COMMUNITY TRADE ARISES WITH EFFECT FROM 1 NOVEMBER 1964 ( REGULATION NO 82/64 OF 30 JUNE 1964, JOURNAL OFFICIEL 1964, P . 1626 ) FROM ARTICLES 12 ( 1 ) AND 32 OF REGULATION NO 13/64 OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN MILK AND MILK PRODUCTS ( JOURNAL OFFICIEL 1964, P . 549 ), REPLACED WITH EFFECT FROM 29 JULY 1968 BY REGULATION NO 804/68 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ).
4 IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT THE QUESTION PUT TO THE COURT CONCERNS IN PARTICULAR THE CASE OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES WHICH WERE PAID VOLUNTARILY WITHOUT RESERVATION FOR A LONG PERIOD BY THE TRADERS CONCERNED ON THE ASSUMPTION COMMON TO THEM AND TO THE NATIONAL AUTHORITIES THAT THEY WERE NOT OPEN TO CRITICISM FROM THE POINT OF VIEW OF THEIR COMPATIBILITY WITH COMMUNITY LAW . THE INCOMPATIBILITY BECAME APPARENT ONLY GRADUALLY AT A LATER DATE AS A RESULT OF THE INTERPRETATION GIVEN BY THE COURT OF JUSTICE TO THE CONCEPT OF CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, WHICH LED THE COURT FOR THE FIRST TIME TO CLASSIFY STATISTICAL CHARGES IN THAT WAY IN ITS JUDGMENT OF 1 JULY 1969 ( CASE 24/68 COMMISSION V ITALIAN REPUBLIC ( 1969 ) ECR 193 ) AND TO CLASSIFY HEALTH INSPECTION CHARGES SIMILARLY IN ITS JUDGMENT OF 14 DECEMBER 1972 ( CASE 29/72 MARIMEX V ITALIAN FINANCE ADMINISTRATION ( 1972 ) ECR 1309 ).
5 ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT THE PROHIBITION ON THE LEVYING OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, WHETHER IT HAS ITS ORIGIN IN THE GENERAL RULE CONTAINED IN ARTICLE 13 OF THE TREATY WITH EFFECT FROM 1 JANUARY 1970, AT THE END OF THE TRANSITIONAL PERIOD, OR IN THE SPECIAL PROVISION OF ARTICLE 12 OF REGULATION NO 13/64 WITH EFFECT, AS REGARDS THE PRODUCTS REFERRED TO BY THE REGULATION, FROM 1 NOVEMBER 1964, HAS A DIRECT EFFECT IN THE RELATIONS BETWEEN THE MEMBER STATES AND THEIR
SUBJECTS THROUGHOUT THE COMMUNITY AS FROM THE DATE PROVIDED FOR THE IMPLEMENTATION OF THE PROVISIONS IN QUESTION . AS THE COURT STATED IN ITS JUDGMENT OF 9 MARCH 1978 IN CASE 106/77, AMMINISTRAZIONE DELLE FINANZE DELLO STATO V SIMMENTHAL S.P.A . ( 1978 ) ECR 629, AT P . 643, RULES OF COMMUNITY LAW MUST BE FULLY AND UNIFORMLY APPLIED IN ALL THE MEMBER STATES FROM THE DATE OF THEIR ENTRY INTO FORCE AND FOR SO LONG AS THEY CONTINUE IN FORCE .
6 THE INTERPRETATION WHICH, IN THE EXERCISE OF THE JURISDICTION CONFERRED UPON IT BY ARTICLE 177, THE COURT OF JUSTICE GIVES TO A RULE OF COMMUNITY LAW CLARIFIES AND DEFINES WHERE NECESSARY THE MEANING AND SCOPE OF THAT RULE AS IT MUST BE OR OUGHT TO HAVE BEEN UNDERSTOOD AND APPLIED FROM THE TIME OF ITS COMING INTO FORCE . IT FOLLOWS THAT THE RULE AS THUS INTERPRETED MUST BE APPLIED BY THE COURTS EVEN TO LEGAL RELATIONSHIPS ARISING AND ESTABLISHED BEFORE THE JUDGMENT RULING ON THE REQUEST FOR INTERPRETATION, PROVIDED THAT IN OTHER RESPECTS THE CONDITIONS ENABLING AN ACTION RELATING TO THE APPLICATION OF THAT RULE TO BE BROUGHT BEFORE THE COURTS HAVING JURISDICTION ARE SATISFIED .
7 AS THE COURT RECOGNIZED IN ITS JUDGMENT OF 8 APRIL 1976 IN CASE 43/75 GABRIELLE DEFRENNE V SOCIETE ANONYME BELGE DE NAVIGATION AERIENNE SABENA ( 1976 ) ECR 455, IT IS ONLY EXCEPTIONALLY THAT THE COURT MAY, IN APPLICATION OF THE GENERAL PRINCIPLE OF LEGAL CERTAINTY INHERENT IN THE COMMUNITY LEGAL ORDER AND IN TAKING ACCOUNT OF THE SERIOUS EFFECTS WHICH ITS JUDGMENT MIGHT HAVE, AS REGARDS THE PAST, ON LEGAL RELATIONSHIPS ESTABLISHED IN GOOD FAITH, BE MOVED TO RESTRICT FOR ANY PERSON CONCERNED THE OPPORTUNITY OF RELYING UPON THE PROVISION AS THUS INTERPRETED WITH A VIEW TO CALLING IN QUESTION THOSE LEGAL RELATIONSHIPS .
8 SUCH A RESTRICTION MAY, HOWEVER, BE ALLOWED ONLY IN THE ACTUAL JUDGMENT RULING UPON THE INTERPRETATION SOUGHT . THE FUNDAMENTAL NEED FOR A GENERAL AND UNIFORM APPLICATION OF COMMUNITY LAW IMPLIES THAT IT IS FOR THE COURT OF JUSTICE ALONE TO DECIDE UPON TEMPORAL RESTRICTIONS AS REGARDS THE EFFECTS OF THE INTERPRETATION WHICH IT GIVES .
9 IT IS NECESSARY, HOWEVER, TO OBSERVE THAT WHERE THE CONSEQUENCE OF A RULE OF COMMUNITY LAW IS TO PROHIBIT, ON THE DATES AND WITH THE EFFECTS DESCRIBED ABOVE, THE LEVYING OF NATIONAL CHARGES OR DUES, THE SAFEGUARD OF THE RIGHTS CONFERRED UPON SUBJECTS BY THE DIRECT EFFECT OF SUCH A PROHIBITION DOES NOT NECESSARILY REQUIRE A UNIFORM RULE COMMON TO THE MEMBER STATES RELATING TO THE FORMAL AND SUBSTANTIVE CONDITIONS TO WHICH THE CONTESTING OR RECOVERY OF THOSE VERY DIVERSE NATIONAL CHARGES IS SUBJECT .
10 A COMPARISON OF THE NATIONAL SYSTEMS SHOWS THAT THE PROBLEM OF DISPUTING CHARGES WHICH HAVE BEEN UNLAWFULLY CLAIMED OR THE REFUNDING OF CHARGES PAID BUT NOT OWED IS SETTLED IN DIFFERENT WAYS IN THE VARIOUS MEMBER STATES, AND EVEN WITHIN A SINGLE MEMBER STATE, ACCORDING TO THE VARIOUS KINDS OF TAXES OR CHARGES IN QUESTION . IN CERTAIN CASES, OBJECTIONS OR CLAIMS OF THIS TYPE ARE SUBJECT TO SPECIFIC PROCEDURAL CONDITIONS AND TIME-LIMITS UNDER THE LAW WITH REGARD BOTH TO COMPLAINTS SUBMITTED TO THE TAX AUTHORITIES AND TO LEGAL PROCEEDINGS .
11 IN OTHER CASES, CLAIMS FOR REPAYMENT OF CHARGES WHICH WERE PAID BUT NOT OWED MUST BE BROUGHT BEFORE THE ORDINARY COURTS, MAINLY IN THE FORM OF CLAIMS FOR THE RECOVERY OF OVERPAYMENTS . SUCH ACTIONS ARE AVAILABLE FOR VARYING LENGTHS OF TIME, IN SOME CASES FOR THE LIMITATION PERIOD LAID DOWN UNDER THE GENERAL LAW, WITH THE RESULT THAT MEMBER STATES INVOLVED MAY BE FACED WITH AN ACCUMULATION OF CLAIMS FOR A CONSIDERABLE AMOUNT WHERE CERTAIN NATIONAL TAX PROVISIONS HAVE BEEN FOUND TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
12 IT FOLLOWS FROM THE JUDGMENTS OF 16 DECEMBER 1976 IN THE REWE AND COMET CASES ( CASE 33/76 AND CASE 45/76 ( 1976 ) ECR 1989 AND 2043 RESPECTIVELY ) THAT, APPLYING THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE EEC TREATY, IT IS THE COURTS OF THE MEMBER STATES WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW . IN THE PRESENT STATE OF COMMUNITY LAW AND IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE CONTESTING OR THE RECOVERY OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY DEMANDED OR WRONGFULLY LEVIED, IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO SAFEGUARD THE
RIGHTS WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF COMMUNITY LAW, IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS HAVE A DUTY TO PROTECT .
13 IT SHOULD BE SPECIFIED IN THIS CONNEXION THAT THE PROTECTION OF RIGHTS GUARANTEED IN THE MATTER BY THE COMMUNITY LEGAL ORDER DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY LEVIED TO BE GRANTED IN CONDITIONS SUCH AS WOULD INVOLVE AN UNJUSTIFIED ENRICHMENT OF THOSE ENTITLED .
14 THE SYSTEM OF PROTECTION WHICH SUBJECTS THUS HAVE AS A RESULT OF THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW IN CONJUNCTION WITH THE SPECIAL FEATURES OF NATIONAL LAWS WHICH GOVERN IN THE VARIOUS MEMBER STATES MATTERS OF FORM AND SUBSTANCE IN RELATION TO CHALLENGING NATIONAL TAXES OR RECOVERING THOSE WHICH HAVE BEEN PAID WITHOUT BEING OWED CANNOT BE REGARDED AS INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW ON THE ESTABLISHMENT OF A SYSTEM ENSURING THAT COMPETITION WITHIN THE COMMON MARKET IS NOT DISTORTED .
15 THOSE PROVISIONS HAVE BASICALLY BEEN GIVEN SPECIFIC FORM ON THE ONE HAND IN THE RULES APPLYING TO UNDERTAKINGS ( ARTICLES 85 TO 90 OF THE EEC TREATY ) AND ON THE OTHER HAND IN THOSE ON AIDS GRANTED BY STATES ( ARTICLES 90 TO 94 OF THE EEC TREATY ). THE FIRST CANNOT APPLY IN THE RELATIONS BETWEEN UNDERTAKINGS AND THE REVENUE AUTHORITIES OF THE MEMBER STATES WHEN THE REVENUE EXERCISES ITS POWER TO CREATE NEW TAXES . AS REGARDS THE LATTER RULES, THE COURT RULED IN ITS JUDGMENT OF 27 MARCH 1980 IN CASE 61/79 AMMINISTRAZIONE DELLE FINANZE DELLO STATO V DENKAVIT ITALIANA S.R.L . ( 1980 ) ECR AT PARAGRAPH 32 THAT THE DUTY OF THE AUTHORITIES OF A MEMBER STATE TO REPAY TO TAX-PAYERS WHO APPLY FOR SUCH REPAYMENT CHARGES OR DUES WHICH WERE NOT PAYABLE BECAUSE THEY WERE INCOMPATIBLE WITH COMMUNITY LAW, DOES NOT CONSTITUTE AN AID WITHIN THE MEANING OF ARTICLE 92 OF THE EEC TREATY .
16 IT IS NECESSARY TO POINT OUT IN ADDITION THAT ALL THE TRADERS IN EACH MEMBER STATE WHO HAVE PAID NATIONAL TAXES WHICH WERE NOT OWED BECAUSE THEY WERE INCOMPATIBLE WITH COMMUNITY LAW ARE ON AN EQUAL FOOTING AS REGARDS THEIR OPPORTUNITY FOR CLAIMING THEIR RIGHTS SO THAT THERE CAN BE NO QUESTION IN THE
MATTER OF DISTORTING COMPETITION . ON THE OTHER HAND IT IS TRUE THAT THOSE OPPORTUNITIES DIFFER FROM ONE MEMBER STATE TO THE OTHER IN ACCORDANCE WITH THE DIFFERENT NATIONAL LAWS . SUCH DIFFERENCES, ESPECIALLY IN RULES RELATING TO CHALLENGING NATIONAL LEVIES, CANNOT BE REGARDED AS DISCRIMINATORY OR, A FORTIORI, AS LIKELY TO DISTORT COMPETITION WHERE, AS STATED ABOVE, THE NATIONAL LAW IS APPLIED IN A NON-DISCRIMINATORY MANNER AS COMPARED WITH PROCEEDINGS AIMED AT SETTLING CASES OF THE SAME KIND BUT OF A PURELY NATIONAL CHARACTER AND WHERE THE PROCEDURAL CONDITIONS DO NOT MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS GIVEN BY COMMUNITY LAW .
17 IT IS THEREFORE RIGHT TO ANSWER THE QUESTION PUT BY THE CORTE D ' APPELLO, TURIN, THAT IT IS FOR THE LEGAL ORDER OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS IN WHICH TAXPAYERS MAY CONTEST TAXATION WRONGLY LEVIED BECAUSE OF ITS INCOMPATIBILITY WITH COMMUNITY LAW OR CLAIM REPAYMENT THEREOF, PROVIDED THAT THOSE CONDITIONS ARE NO LESS FAVOURABLE THAN THE CONDITIONS RELATING TO SIMILAR APPLICATIONS OF A DOMESTIC NATURE AND THAT THEY DO NOT MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS CONFERRED BY THE COMMUNITY LEGAL ORDER . THERE IS NOTHING FROM THE POINT OF VIEW OF COMMUNITY LAW TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT, IN ACCORDANCE WITH THEIR NATIONAL LAW, OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO ITS PURCHASERS .
THE BRINGING OF SUCH ACTIONS FOR THE RECOVERY OF SUCH SUMS IS NOT CONTRARY TO THE PROVISIONS OF COMMUNITY LAW ON THE ESTABLISHMENT OF A SYSTEM ENSURING THAT COMPETITION IS NOT DISTORTED IN THE COMMON MARKET .
Decision on costs
18 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE D ' APPELLO, TURIN, BY ORDER OF 9 NOVEMBER 1979, HEREBY RULES :
IT IS FOR THE LEGAL ORDER OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS IN WHICH TAXPAYERS MAY CONTEST TAXATION WRONGLY LEVIED BECAUSE OF ITS INCOMPATIBILITY WITH COMMUNITY LAW OR CLAIM REPAYMENT THEREOF, PROVIDED THAT THOSE CONDITIONS ARE NO LESS FAVOURABLE THAN THE CONDITIONS RELATING TO SIMILAR APPLICATIONS OF A DOMESTIC NATURE AND THAT THEY DO NOT MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS CONFERRED BY THE COMMUNITY LEGAL ORDER .
THERE IS NOTHING FROM THE POINT OF VIEW OF COMMUNITY LAW TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT, IN ACCORDANCE WITH THEIR NATIONAL LAW, OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO PURCHASERS .
THE BRINGING OF SUCH ACTIONS FOR THE RECOVERY OF SUCH SUMS IS NOT CONTRARY TO THE PROVISIONS OF COMMUNITY LAW ON THE ESTABLISHMENT OF A SYSTEM ENSURING THAT COMPETITION IS NOT DISTORTED IN THE COMMON MARKET .