OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 11 December 2003 1( )

Case C-30/02

Recheio – Cash & Carry SA

v

Fazenda Pública/Registo Nacional de Pessoas Colectivas

(Reference for a preliminary ruling from the Tribunal Tributário de Primeira Instância de Lisboa)

(Internal taxation contrary to Community law – Recovery of sums paid but not due – National time-limits for bringing proceedings – Period of 90 days – Principle of effectiveness)

I – Introduction

1. The Tribunal Tributário de Primeira Instância de Lisboa (Fiscal Court of First Instance, Lisbon) wishes to know whether the legal order of the European Union permits the fixing of a time-limit of 90 days for challenging tax assessments before the Court for Contentious Administrative Proceedings and, consequently, for bringing an action for repayment of taxes paid in infringement of Community law.

2. This incidental question is added to the long list of references for a preliminary ruling concerning the compatibility with Community law of various national rules, specifically those regulating time-limits and methods for bringing legal actions for the repayment of tax contributions paid into the public funds in infringement of Community law.

3. In response to these questions, the Court of Justice has given numerous rulings, creating well-established case-law according to which, in the absence of a Community provision, it is for Member States to regulate the procedures for protecting the rights conferred by the European Union. However, this power is subject to a dual restriction:

– Member States are not authorised to impose a different and less favourable time-limit for bringing actions based on Community law than for bringing claims based on infringements of national law. ( ) This is known as the principle of equivalence.

– nor may they regulate the procedure in such a way as to render it, in practice, excessively difficult or impossible to bring such actions. This rule is known as the principle of effectiveness of Community law. ( )

4. Earlier case-law supplies the rules that will make it possible to provide the Portuguese national court with the reply it seeks.





II – The facts, the main dispute and the questions referred for a preliminary ruling

5. Recheio – Cash & Carry S.A. (‘Recheio’) increased its share capital from PTE 100 000 000 to PTE 1 000 000 000 by notarial act of 5 November 1977, which was entered in the Registo Nacional de Pessoas Colectivas (National Register of Legal Persons).

6. On 4 March 1998 that registering body charged Recheio, by way of fees, the sum of PTE 2 251 500, calculated in accordance with the Tabela de emolumentos do Registo Nacional de Pessoas Colectivas (Schedule of Fees of the National Register of Legal Persons).

7. On 11 July 2001 Recheio brought a declaratory action before the Tribunal Tributário de Primeira Instância de Lisboa for an order upholding its right to repayment of the fees unduly charged; the court of its own motion converted the administrative proceedings into an action for review of the lawfulness of the act assessing the fees, considering that to be the procedure best suited to the object pursued.

8. In view of the fact that, on that date, the period for bringing the action had already expired, the Portuguese court stayed proceedings and submitted the following questions to the Court of Justice:

‘(1) Is it contrary to Community law for a Member State to fix a limitation period, for actions for repayment of taxes levied in breach of Community law, of 90 days reckoned from the expiry of the period for voluntary payment, so that the exercise of the right to reimbursement is made excessively difficult?

(2) If so, what is the minimum period that may be considered compatible with the rule that exercise of that right must not be made excessively difficult?

(3) What are the criteria to be used to fix that period?’

III – Proceedings before the Court of Justice

9. Recheio, the Portuguese Republic and the Commission submitted written observations within the period laid down by Article 20 of the EC Statute of the Court of Justice.

10. At the hearing, which was held on 13 November 2003, oral argument was presented by the representatives of the parties which had participated in the written stage.

IV – The relevant provisions of Portuguese law

11. In Portuguese law administrative acts, which include the charging of taxes, may be void or voidable. They are declared void if they lack any of the essential elements and if the law expressly provides for this type of invalidity. The rest are voidable. ( )

12. Both kinds are revoked by means of administrative actions brought by the holders of individual rights and interests protected by law which have been damaged. ( ) There are two ways of contesting an act; an appeal to the administrative body seeking to have the act set aside ( ) and an appeal to a higher administrative authority; the latter is optional if it is possible to bring an action for review of the lawfulness of the act and mandatory if it is not. ( ) The period allowed for initiating the proceedings is 15 days for the setting aside procedure and 30 for an appeal to a higher administrative authority, or the period allowed for bringing an action for review of lawfulness in the case of a mandatory appeal to a higher administrative authority. ( )

13. In the field of taxation, unless expressly provided otherwise, the appeal to a higher administrative authority is optional, within the same 30 day period. ( ) There is also an internal appeal, which must be brought within 90 days, although, when it is based on a failure to observe essential procedural formalities or on the non-existence, in whole or in part, of what is to be taxed, it is extended to a year. ( ) The decision in an internal appeal may be challenged by an appeal to a higher administrative authority and that decision in turn may be subject to an action for review of its lawfulness. ( )

14. The aim of judicial fiscal proceedings is to ensure the full and effective protection in reasonable time of the rights and interests safeguarded by law in this domain. ( ) They permit a response to the assessing of tax ( ) by means of claims for annulment of the contested act or a declaration that it is void. ( ) They are also the appropriate means of seeking a declaration of the recognition of a right or of a legitimate interest in the tax sphere, ( ) if there is no more appropriate way of ensuring its judicial protection. ( )

15. The period allowed for bringing the judicial proceedings is 90 days, calculated from expiry of the period for voluntary payment of the tax debt, unless an internal appeal has been brought, in which case it is reduced to 15 days. A claim based on the invalidity of the assessment may be brought at any time. ( )

16. The action for a declaration must be brought within four years of the date on which the right arose or the person in question became aware of the damage for which protection is sought. ( )

V – Analysis of the question referred for a preliminary ruling

A – Delimitation of the subject-matter of the action

17. It is not disputed that the fees charged to Recheio by the Registo Nacional de Pessoas Colectivas are a tax contrary to Community law or that the company has a right to bring the actions appropriate under national law. ( )

18. The doubt harboured by the Tribunal de Primeira Instãncia de Lisboa is whether Community law approves a time-limit of 90 days for bringing a legal action for repayment of the amounts unduly paid by way of taxes which, like the charge levied on Recheio, are incompatible with the internal legal order.

19. The Portuguese court has no doubt that that time-limit is in keeping with the principle of equivalence. This is expressed in the order for reference, which states that ‘the appeal procedure is applicable to any acts levying tax dues, whether they are based on Community or domestic legislation’, ( ) so that the questions it raises refer exclusively to the principle of effectiveness, to which it alludes in the final sentence of the first question when it seeks to clarify whether, by the fixing of a period of 90 days, ‘the exercise of the right to reimbursement is made excessively difficult’.

20. Thus, the laudable effort made by Recheio in its written observations to show that the time-limit granted by Portuguese procedural law infringes the principle of equivalence is made in vain since, once the national court, after interpreting its legal code, has accepted that the period is applicable to all kinds of actions, the Court of Justice has nothing to say on the matter. ( )

21. The compatibility of the period in question with Community law must be analysed solely in relation to the principle of effectiveness and, even at this stage, it is necessary to avoid considering the existence of an alternative remedy – the action for a declaration – available for four years, or the fact that, when the ground of the claim is nullity ipso jure, there is no time-limit for bringing it. It is for the national court to decide whether such an action is appropriate if the Court of Justice should rule that a procedural rule like that contained in Article 102(1) of the Código de Procedimento e de Processo Tributário is contrary to Community law. ( ) Similarly, it falls to the Portuguese courts to determine the nature of the defect affecting the assessment to tax which is the subject of the main proceedings and, in consequence, whether it should be contested within 90 days or at any other time.

22. In short, the Court of Justice has to settle the specific question raised by the Portuguese court, irrespective of whether Recheio’s claim might be brought through other channels with longer limitation periods.

B – Consideration of the time-limit of 90 days in the light of the principle of effectiveness

1. This is the responsibility of the national courts

23. From the point of view of the principle of effectiveness, the Court of Justice has on rare occasions given a direct ruling on specific limitation or extinction periods, laid down in the legal systems of the Member States, for bringing actions for the repayment of sums paid into public funds in infringement of Community law. Its allusions are clothed in abstraction. Thus, in Rewe and Comet, it merely stated that the fixing of time-limits for bringing actions, a clear application of the principle of legal certainty, would infringe Community law if it made it in practice impossible to exercise the rights; this is not the case where ‘reasonable periods of limitation’ are fixed. ( ) In cases in which it has examined specific time-limits, it has used the principle of equivalence as a guideline for comparison: the judgments in Edis, Spac and Prisco and Caser, all three cited above, acknowledge that the law of the European Union does not preclude a limitation period of three years, provided it is applied indiscriminately to all claims for repayment, irrespective of whether they are based on national or Community law. ( ) When it has analysed the move from one limitation period to a shorter one, it has done so in the light only of the aforementioned principle: the judgment in Aprile states that Community law does not preclude the application of a national provision which ... imposes a special time-limit of five, and subsequently three, years, instead of the ordinary limitation period of 10 years. ( )

24. It is true that in the grounds for the judgments in Edis and Spac it is accepted that ‘a time-limit of three years under national law, reckoned from the date of the contested payments, appears reasonable’, and that therefore Community law does not prohibit a Member State from relying on it. ( ) However, leaving aside the fact that these are obiter dicta which are not reflected in the judgments, they are tautological statements, lacking any reasoning whatsoever, in which no explanation is given of the basis for determining that a period of that length complies with the principle of effectiveness. For the Court of Justice, Community law allows reasonable time-limits and a time-limit of three years is reasonable, with no further explanation.

25. It has followed the same approach when considering whether certain time-limits laid down in the laws of the Member States for bringing actions based on Community law are compatible with the principle of effectiveness. The judgment in Bassin et Salson ( ) decided that Community law does not preclude provisions of a Member State establishing a mandatory limitation period of three years for the submission of all applications for the repayment of duties unduly levied. ( ) This decision is based on the notion that proceedings are acceptable which do not, in practice, prevent the exercise of the rights conferred by Community law, so that a three year limitation period ‘[reflects] a legislative choice which does not have the effect of undermining the aforesaid requirement’. ( )

26. Similarly, the judgment in Haahr Petroleum( ) reiterates that Community law does not preclude a limitation period of five years because it is a period which ‘must be considered to be reasonable’. ( )

27. Just once, the Court has endeavoured to express more thoroughly the reasons for its decision: the judgment in Grundig Italiana, in which case I delivered my Opinion on 14 March 2002, ruled that to fix a transitional period of 90 days for the substitution of a limitation period of three years for one of five or ten years was not in keeping with Community law, adding that, in order to observe the principle of effectiveness, that period must be sufficient still to allow taxpayers a reasonable opportunity of asserting their rights to recovery if, because of the introduction of the new rules, they would already be out of time, so that they may prepare their action without haste and without being harried by the obligation to act with urgency disproportionate to the period originally allowed. ( ) Immediately after, it added that a period of 90 days is inadequate, because, if an initial period of five years is taken as a reference, taxpayers whose rights accrued approximately three years earlier have to act within three months when they thought that they still had almost two years more; ( ) it ends by considering reasonable a minimum transitional period of six months. ( )

28. The position adopted by the Court has a simple explanation: when time-limits for initiating proceedings are calculated in years, it is obvious that they will permit the effective exercise of the rights recognised by Community law, for which reason no further justification is required. On the other hand, when the periods are shorter, reckoned in months or days, the assessment of their utility is less clear, and so reasons are called for.

29. However, as I pointed out in the opinion in Grundig Italiana, it is not for the Court of Justice to make that evaluation since, with obvious exceptions, ( ) it must be made by the national court. ( ) In order to determine whether or not a specific time-limit complies with the principle of effectiveness, it is necessary to evaluate ‘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 national courts alone have, is it possible to give a definitive answer’. ( )

30. The Court of Justice has taken this view on some occasions, since, according to the judgment in Dilexport, it falls to the national court to decide whether, in practice, the detailed rules which apply make it impossible or excessively difficult to exercise the rights conferred by Community law; ( ) a reference which includes the time‑limit for bringing the action, which is the first act taken under those detailed rules.

31. It is possible that in Grundig Italiana there was enough information for the Court of Justice to venture to make that evaluation, in view of the fact that the limitation period was reduced from five years to three, so that taxpayers whose rights had accrued approximately three years earlier were compelled to act within three months when they thought that almost two years were still available. ( ) However, the approach taken in that matter does not appear to concern all the national legal systems, but only the Italian, for it was only the Italian procedural requirements that were evaluated, so that the preliminary ruling wanted the general and objective orientation which is essential if it is to fulfil its fundamental role of ensuring the uniform interpretation of Community law, being transformed into an exegesis uti singulis, relating to one legal system in particular.

32. The fact is that, as the Court of Justice has itself often acknowledged, the procedure for appealing against taxes unlawfully levied and that for claiming repayment of taxes paid though not due take different forms in the various Member States. Consequently, it is difficult to assess in the abstract whether a transitional period of 90 days, such as that contemplated in Grundig Italiana, complies with the principle of effectiveness, because, in order to come to a decision, it is necessary to evaluate, as well as its duration, many other circumstances such as the following, which are given as examples, without claiming the list to be exhaustive: whether a person may represent himself or whether a lawyer must represent him; whether, in order to bring legal proceedings before the courts, the applicant may appear on his own behalf or whether he needs to grant a power of representation; in this latter case, whether this must be done before a public official; whether, in the case of legal persons, a specific resolution must be adopted in order to bring proceedings, taking into account, where appropriate, the time-limits, conditions and forms existing for that purpose; whether a precondition is the lodging of a complaint with the competent authority; whether such a complaint has suspensory effect; whether the public authorities have to be informed of the intention to bring legal proceedings. The list of determining factors could be extended, by weighing up their difficulty and cost in each State.

33. Against this diversity and other special features which those who move in the area of comparative European law can easily imagine, Community law has to set the protection of the rights it confers on individuals, ( ) requiring that national procedural rules applicable to their protection should not be less favourable than those applicable to similar national actions and that in practice it should not be impossible or excessively difficult to exercise such rights. ( )

34. For these reasons, as I have already explained in the Opinion in Grundig Italiana, the indefinite legal concept of a ‘reasonable period’, which the Community case-law mentions as a condition of compliance with the principle of effectiveness, must be defined by the national courts, except in extreme cases in which, because it is obviously adequate or because it it unquestionably too short, the assessment does not require the specific conditions of each national system to be considered, so that there is no objection to the Court of Justice’s doing so.

35. It does not therefore appear consistent for the judgment in Grundig Italiana, having declared a specific period to be inadequate, to determine the minimum period deemed adequate to ensure the effective exercise of actions based on Community law, assuming duties of the legislature; whether the Community or the Italian legislature is not clear. Furthermore, that judgment does not give reasons for choosing a period of six months or for describing it as adequate. It merely states that the period enables ‘normally diligent taxpayers [to] familiarise themselves with the new regime and prepare and commence proceedings in circumstances which do not compromise their chances of success’. ( ) Why is a period of three months not appropriate but one of six months is? The judgment in Grundig Italiana is thus shown to be the result of arbitrariness and a misunderstanding of the preliminary ruling procedure. Under Article 234 EC, it falls to the Court of Justice to give the definitive interpretation of Community law and provide national courts with precise guidelines for applying it, but it is by no means empowered to become involved in the latter legal operation, lest it undermine the foundations of that instrument of collaboration between courts, which requires scrupulous observance of the scope of their respective jurisdictions. ( ) In fact, by making pronouncements of this kind, the Court of Justice behaves as in a direct action and assumes, regardless of the rules of the Treaty, unlimited jurisdiction which seriously affects the absolute jurisdiction of the national court to settle the main action. ( ) The system under Article 234 EC rests on the difference between integration and application of the rules, and allows the legitimate authority of the national court to be reconciled with the necessary uniformity of Community law, as was pointed out years ago by Robert Lecourt. ( ) The performance of this task requires meticulous observance of the division of powers. ( ) Admittedly, there is a very fine distinction between interpretation and application, because it is difficult to interpret a rule without applying it or to apply it without interpreting it, but the Court of Justice must avoid taking the place of the national court and must restrict itself, within the limits set in the order for reference, to providing specific replies. ( ) Ami Barav ( ) has recognised that, in spite of the Court of Justice’s solemn statements regarding the jurisdiction of the national court, the reality is very different. ( )

36. For those reasons, I suggest that the Court of Justice reply to the Tribunal Tributário de Primeira Instância de Lisboa in the terms already used by the Commission in its written observations, stating:

it is contrary to Community law, particularly the principle that it must be effective, for provisions of a Member State, in respect of actions for the repayment of taxes levied in breach of that law, to fix a limitation period which makes it in practice extremely difficult to exercise the right to repayment; and

it falls to the national court to determine, assessing all the matters of law and of fact, both procedural and substantive, that relate to the bringing of the action, whether the period laid down by national law is reasonable and guarantees that principle.

2. In the alternative

37. If the Court of Justice should find it necessary to rule on the claim in the main proceedings, by considering the relevance of a definite and specific time‑limit, such as that of 90 days laid down in Article 102(1) of the Código de Procedimento e de Processo Tributário, it seems appropriate to consider, in the light of the factual circumstances of the case and of the inevitably fragmentary knowledge of the Portuguese legal system, according to the parameters provided by the order for reference, that the aforementioned period would be reasonable and would have allowed Recheio to exercise its rights with every guarantee of effectiveness.

38. Article 102(1)(a) indicates as the dies a quo for the calculation the day after the day on which the period of voluntary payment of the charge expired; as a general rule, that period lasts for 30 days from the date of notification of the assessment to tax. ( ) In the main proceedings, the contested assessment to tax was imposed on 4 March 1998 so that, in principle, the period for voluntary payment ended on about ( ) 15 April 1998; the company therefore had until about 19 August to initiate the proceedings for review of the lawfulness of the act. ( )

39. A period which, in actual fact, is almost five and a half months long (from the day of notification of the contested assessment to tax until the day on which the period for bringing the judicial appeal ended), does not render difficult or hinder the effective exercise of the rights discussed in the main proceedings.

40. First, it were well to remember that, according to the case‑law of the Court of Justice, ( ) it is not contrary to Community law for a Member State to resist actions for repayment of charges levied in infringement of a directive by relying on a time‑limit under national law which is reckoned from the date of payment of the charges in question even though, at that date, the directive in question had not yet been properly transposed into national law. ( ) As I have already pointed out in the opinion delivered in the Edis case, ( ) this solution, which seeks to balance the effectiveness of the right to legal protection and the principle of legal certainty, is not wholly satisfactory for taxpayers who are obliged to pay a tax contrary to Community law. However, until there are uniform rules on this point, it is for the Member State to determine, in the conditions amply described above, the requirements for actions for repayment. ( )

41. And in that search for a balance between the rights of taxpayers and the general interest, which prevents administrative decisions from remaining indefinitely under the sword of Damocles of a possible judicial challenge, the introduction of a time-limit for bringing the administrative proceedings on the conditions envisaged by Portuguese procedural law deserves to be described as reasonable. It provides time, after learning of the assessment to tax, sufficient to adopt the decision to contest the latter, to gather all the factual and legal information necessary to do so and to prepare an adequate case. ( ) If the rules of other Member States on the matter are analysed, it will be found that they all provide for periods of a similar duration, ( ) which operate in the respective legal systems without raising doubts as to their suitability for obtaining judicial protection.

42. Furthermore, it is indisputable that actions based on national law deserve to be subject to the same rules regarding time-limits for bringing proceedings as those based on Community law since, from the point of view of principles, it is impossible to maintain otherwise.

43. The fact that the authorities enjoy longer periods for exercising their powers in tax matters ( ) is not an indication that the period of 90 days granted to taxpayers for bringing an action for judicial review disregards the rule of effectiveness of Community law. First, because the principles and objectives governing each are quite different, the evaluation of the adequacy of the period is independent of the fact that the authorities have longer periods in which to act. Secondly, because in this field the requirement of equality does not operate, it is clear that public authorities and citizens do not have to be subject to the same time-limits. The extinction of the right to make assessments to tax and the time-barring of tax debts meet criteria very different from those which govern the application of specific periods for the bringing of judicial proceedings by citizens. Recheio makes commendable efforts in its arguments in its written observations, but it confuses different legal concepts, such as extinction and limitation, sowing confusion in its reasoning when it conceals the fact that the Portuguese Authority may revoke valid acts creating or altering rights and interests protected by law only insofar as they produce adverse effects for their addressees, ( ) and that invalid acts must be revoked within the period prescribed for bringing the respective legal action. ( )

VI – Conclusion

44. In the light of the foregoing considerations, I propose that the Court of Justice should answer the questions submitted by the Tribunal Tributário de Primeira Instância as follows:

It is contrary to Community law, particularly the principle that it must be effective, for provisions of a Member State, in respect of actions for the repayment of taxes levied in breach of that law, to fix a limitation period which makes it in practice extremely difficult to exercise the right to repayment.

It falls to the national court to determine, assessing all the matters of law and of fact, both procedural and substantive, that relate to the bringing of the action, whether the period laid down by national law is reasonable and guarantees that principle.

45. In the alternative, if it is considered necessary to assess the application of Community law, notwithstanding the content of Article 234 EC, to the facts in the main proceedings, I propose that the Court should state that:

It is not contrary to Community law for a period such as that at issue in the main proceedings to be fixed for bringing actions for repayment of taxes levied in breach of Community law, provided that that period applies also to claims for repayment based on national law.