Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 26 March 1998. - Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze. - Reference for a preliminary ruling: Tribunale di Genova - Italy. - Recovery of sums paid but not due - Procedural time-limits under national law. - Case C-231/96.



European Court reports 1998 Page I-04951



Opinion of the Advocate-General

1 The Tribunale Civile di Genova (Italy) has submitted three questions for a preliminary ruling on the impact of Community law, as interpreted in the case-law of the Court of Justice, on certain conditions for the exercise of the right to recover taxation improperly levied by the Italian Administration. Specifically, this case is concerned with the repayment of sums paid by the plaintiff company in respect of a national tax which was contrary to Community law.

Facts, main proceedings and preliminary questions

2 The plaintiff, a limited liability company entered in the companies register at the Tribunale di Genova in accordance with Presidential Decree No 641 of 26 October 1972 (hereinafter `DPR 641/1972'), paid each year to the Italian Treasury, from 1986 to 1992, the sum of ITL 64 500 000 in respect of the annual tassa di concessione governativa (administrative charge) for the registration of companies in the register of companies.

3 Following the judgment of the Court of Justice of 20 April 1993 in Ponente Carni and Cispadana Costruzioni (1) (hereinafter `Ponente Carni'), giving a ruling on a number of questions concerning the interpretation of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, (2) the Italian legislature abolished the annual charge and reduced to ITL 500 000 the amount of the charge for first registration on the register of companies. (3)

4 For their part, the Italian courts also declared the annual charge to be incompatible with Community law (4) and, consequently, held that the taxes paid in respect of it had been improperly levied.

5 After unsuccessfully calling on the Italian Administration to repay the charges paid but not due from 1986 to 1992, Edis sought from the Tribunale Civile di Genova on 31 May 1996 a `decreto ingiuntivo' (5) requiring the Ministero delle Finanze to repay the total sum of those charges, namely ITL 64 500 000.

6 The President of the Tribunale Civile di Genova decided, before adjudicating on the plaintiff's claim, to seek a preliminary ruling from the Court of Justice on the following three questions:

`1. For the purposes of amplifying and clarifying the ruling given in the judgment of 20 April 1993 in Joined Cases C-71/91 and C-178/91 Ponente Carni v Amministrazione delle Finanze dello Stato [1993] ECR I-1915, must the provisions of the Treaty be interpreted as precluding the introduction and/or the retention by a Member State of a national provision such as that introduced by the Italian legislature in Article 13(2) of Decree No 641 of the President of the Republic of 26 October 1972 where the effect of the application of that provision is to limit the temporal effects of a judgment given by the Court of Justice?

2. Is Article 5 of the EC Treaty, as interpreted in the Court's case-law, compatible with a national provision (Article 13 of Presidential Decree No 641/72) which, as regards the procedural rules relating to judicial actions seeking to secure repayment of charges paid in breach of Council Directive 69/335/EEC, provides for a three-year time-limit reckoned from the date of payment, although no such limit is laid down by national law for claims for the recovery of sums paid but not due as between private persons?

3. If the answer to the preceding question is in the affirmative, the Court of Justice is asked to rule whether the Community legal order allows a national provision laying down a time-limit for which time starts to run (to the detriment of a citizen of a Member State relying on the provisions of a directive in order to obtain repayment of a charge which was paid but not due) before that directive was correctly transposed into national law.'

The national legislation and its interpretation by the Italian courts

7 I shall first describe the features of the improperly levied charge as they were set out in the judgment in Ponente Carni (paragraphs 5 to 11):

- The governmental administrative charge (hereinafter `the administrative charge') for the registration of companies in the register of companies introduced by Decree No 641 of the President of the Republic of 26 October 1972 (GURI No 292 of 11 November 1972, Supplement No 3) applies to the recordal in the register of companies of the principal measures concerning the existence of companies. The register is kept by court registrars pending the creation of the register of companies provided for by Article 2188 of the Civil Code.

- The amount of the administrative charge and the period it covers, in so far as it applies to the registration of companies' instruments of incorporation, has been repeatedly amended.

- The amount of the charge for registration was increased from ITL 81 000 to ITL 5 000 000 for public limited companies and limited partnerships with a share capital, to ITL 1 000 000 for private limited companies and to ITL 100 000 for other companies by Article 3(18) of Decree-Law No 853 of 19 December 1984 (GURI No 347 of 19 December 1984), converted into Law No 17 of 17 February 1985 (GURI No 41 bis of 17 February 1985).

- Decree-Law No 173 of 30 May 1988 (GURI No 125 of 30 May 1988) increased those amounts. Article 1 of Law No 291 of 26 July 1988 (GURI No 175 of 27 July 1988), which converted that decree into a law, increased the amount of the charge to ITL 2 500 000 for private limited companies and to ITL 500 000 for other companies. For public limited companies and limited partnerships with a share capital the Law set five different charges ranging from ITL 9 000 000 to ITL 120 000 000 according to the amount of the authorised capital.

- Article 36(8) of Decree-Law No 69 of 2 March 1989 (GURI No 51 of 2 March 1989), converted, after due approval, into Law No 154 of 27 April 1989 (GURI No 99 of 29 April 1989), set the amount of the charge at ITL 12 000 000 for public limited companies and limited partnerships, at ITL 3 500 000 for private limited companies and ITL 500 000 for other companies.

- The abovementioned Law No 154 added a paragraph 8 bis to Article 36 of the Decree-Law of 2 March 1989, the result of which is that the amount of the charge for 1988 is ITL 15 000 000 for public limited companies and limited partnerships with a share capital, ITL 3 500 000 for private limited companies and ITL 500 000 for other companies. Those provisions replaced the aforesaid provisions of Law No 291 of 26 July 1988.

- As regards the period covered by the charge, the abovementioned Decree-Law No 853 provides that the charge is payable not only when the company's instruments of association are entered on the register but also on 30 June of each subsequent calendar year.

8 Of the national provisions governing the right to bring proceedings for recovery of taxes paid but not due, the following are relevant to this case:

(a) Article 13(2) of Decree No 641/72, according to which `[t]he taxpayer may request repayment of charges wrongly paid within a period of three years reckoned from the date of payment, failing which his action shall be barred ...'.

(b) The same three-year time-limit applies to actions for the repayment of other public charges, of a customs nature, as provided by Article 29(1) of Law No 428/1990 in conjunction with Article 91 of the Consolidated version of the provisions relating to customs duties (Decree No 43 of the President of the Republic of 23 January 1973). The latter laid down a time-limit of five years which, as from the entry into force of that law, must be regarded as applying to all claims and proceedings which may be brought for the reimbursement of sums paid in relation to customs operations. (6)

9 According to the general provisions of national law, rights of action for proceedings between private individuals to recover sums unduly paid are not subject to any time-limit other than the ordinary limitation period of 10 years laid down by Article 2946 of the Civil Code (`save where otherwise provided, rights shall be time-barred upon the expiry of 10 years').

10 The Suprema Corte di Cassazione (Combined Chambers) held in judgment No 3458/96 of 23 February 1996 that any request for a refund of the charge at issue must be deemed to be governed by Article 13(2) of DPR 641/1972.

11 The debate provoked by that judgment involved the following two opposing views:

(a) The view that the objection that there was a time-bar under Article 13(2) of DPR 641/1972 should be rejected `... on the ground that the idea that there was an error was incorrect since the payment could not be regarded as having been made by mistake because there was no misrepresentation of matters of fact or law, but on the contrary it could be conceded that there was no power of taxation vested in the State, having regard to the pre-existing Community legislation'. That was the view put forward by the Italian court in the judgment appealed to the Court of Cassation.

(b) The view that `Article 13 covers all charges wrongly paid, whatever the cause of the mistaken payment, including therefore the charges at issue'. That was the defence of the Italian Tax Administration.

12 The Court of Cassation, accepting the view of the Administration, stated as follows:

`... Under the present tax system, the repayment of charges wrongly paid is subject to the three-year time-limit, reckoned from the date of payment, and that regime is not inapplicable to the charge involved here, the issue being one of non-application of domestic law having regard to Community law, which takes precedence, but that does not mean that the Italian law is subject to derogation or is incompatible.

In particular, concerning the limits on the right to reimbursement of wrongly paid charges, the Constitutional Court gave its views in its judgment No 56 of 24 February 1995, in which it declared unconstitutional Article 12 of DPR No 641 of 26 October 1972, in so far as it does not provide, for disputes of the kind referred to in Article 11 of that decree, for actions to be admissible even where there have been no prior administrative proceedings. According to constitutional case-law, the provisions of Article 12 lacked any rationale such as to justify the limitation imposed on the principle laid down in Article 24 of the Constitution. The same cannot be said of a provision of a general nature, like Article 13(2), which imposes a three-year time-limit for the refund of charges paid under a mistake and, therefore, wrongly paid to the State by the taxpayer.

That provision is in fact formulated in terms such as to cover all charges paid by mistake, whatever the cause of the undue payment, so that it can be recognised that Article 13 lays down a time-limit of a general nature for all applications for refunds, in accordance with the legislative intention that charges payable in return for government measures are always subject to a time-bar as far as claims for repayment are concerned.

The view must be rejected that, in this case, the payment is not mistaken in that no state of mind arose as a result of misrepresentation of matters of fact or law, thereby affecting volition: the payment was made in full knowledge and with the intent of complying with a tax provision. In other words, the contested judgment does not deny the existence of an error concerning the basis of the fiscal obligation, which would render the payment improper, in other words not due, but considers that the time-bar, even when laid down in general terms for all undue payments, is inoperative owing to the unlawfulness of the provision imposing the tax contrary to Community law. It having been held that there was no lack of power of taxation and that the court is merely disapplying domestic law which conflicts with Community law, the principle that a time-bar applies where there is a delay in seeking reimbursement of charges paid unduly or by mistake takes full effect and is therefore applicable to the circumstances of this case.'

The first preliminary question

13 By its first question, the Tribunale Civile di Genova seeks essentially to ascertain whether, from the Community law standpoint, it is permissible for national legislation to result in a limitation on the temporal effects of a judgment of the Court of Justice. The national legislation referred to by the national court is Article 13(2) of DPR 641/1972, which I have set out above, and the judgment of the Court of Justice referred to by the national court is Ponente Carni.

14 The answer to this question calls for a brief analysis, first, of the features common to the decisions of the Court of Justice on limitation of the temporal effects of its judgments and, second, of the temporal effects of judgments delivered in response to requests for interpretation by way of preliminary ruling. On the basis of that analysis, I shall be able to conclude that application of the Italian provision does not constitute a temporal limitation on the effects of the judgment in Ponente Carni.

(i) Temporal limitation of the effects of judgments of the Court of Justice

15 Since its judgment of 8 April 1976 in Defrenne, (7) the Court of Justice has on various occasions expressed views as to the limitation of the temporal effects of its judgments. (8) In them it has endeavoured to reconcile the requirements of the principle of legal certainty with those which, in principle, derive from the incompatibility of a national provision with Community law.

16 The legal basis for its decisions is Article 174 of the EC Treaty as far as direct actions for annulment brought against Community provisions and measures are concerned. (9) That article confers on the Court of Justice a wide power of appraisal which enables it `if it considers this necessary' to uphold legal situations which would otherwise be invalid because they derived from a regulation which had been declared void.

17 To safeguard the `necessary consistency' between judgments in actions for annulment and those giving preliminary rulings as to the validity of Community provisions, the Court of Justice has extended to the latter the power conferred on it by Article 174. This is logical, since a judgment of the Court of Justice which, by way of preliminary ruling, finds that a Community measure is invalid has, in principle, the same retroactive effect - ex tunc - as a judgment of annulment: the possibility of limiting that retroactive effect must, therefore extend to both types of proceedings. (10)

18 Even without that legislative support and despite the lack of similar provisions in Article 177 of the Treaty, the Court of Justice has taken an analogous approach regarding interpretative preliminary rulings. It thereby recognises that it may be necessary, in exceptional cases, to limit the temporal effects of interpretative judgments as well in order to uphold certain requirements of legal certainty. (11) In any event, it is a power vested only in the Court of Justice and not in any other judicial authority.

(ii) The temporal effect of interpretative preliminary rulings

19 In principle, a judgment delivered by the Court of Justice by way of interpretative preliminary ruling would mean - subject to the limitations which I shall go on to consider - that the national court would be obliged to apply the Community provision in accordance with the interpretation laid down in that judgment and with its full effect even to legal relationships which came into being before the judgment was delivered.

20 Indeed, as the Court of Justice held in its judgments of 27 March in Denkavit Italiana (12) and of 11 August 1995 in Roders and Others, (13) `the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, 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'. More concisely, in its judgment in Goldsmiths of 3 July 1997, the Court of Justice referred to the principle `that a ruling on interpretation takes effect as from the date on which the rule interpreted came into force'. (14)

21 In other words, given that the interpretation of a Community provision adds nothing, from the point of view of temporal effectiveness, to the validity of that provision, judgments of the Court of Justice which perform that function may be applied to legal situations of any kind governed by the Community provision which has been interpreted, regardless of its temporal aspects.

22 That does not mean, however, that judgments of the Court of Justice on points of interpretation have immoderate effects on every kind of legal relationship previously created, whether or not it has come to an end. The case-law cited above itself,

(a) although affirming that `the [Community] rule thus interpreted can, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation ...',

(b) then goes on to emphasise that that power and duty arise `provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied'.

23 That dictum - which, moreover, was recently confirmed in the judgments of 15 December 1995 in Bosman (15) and of 13 February 1996 in Bautiaa and Société Française Maritime (16) - accurately describes the temporal effects of judgments giving an interpretation in response to requests for preliminary rulings.

24 Such judgments, therefore, even when, indirectly, they find that a national provision is incompatible with Community law, are not endowed with a kind of supra-temporal effect such that the various national situations, both factual and legal, to which they might apply can be disregarded. On the contrary, their effects must apply to those legal situations which, under domestic law, are still open to challenge or review and which, accordingly, may be the subject of a decision of a judicial authority.

25 That conclusion is fully applicable to the exercise of the right to secure repayment of taxes paid but not due where it derives from the incompatibility of the domestic taxation with Community law. It has been consistently emphasised, in a line of case-law starting with the Rewe (17) and Comet (18) judgments, that the Member States are under an obligation to repay those taxes, as the counterpart of the taxpayer's right to have it refunded, (19) and that the exercise of that right is subject to the ordinary conditions forming part of the legal order of each State.

26 Summarising the approach taken in the case-law, the judgment of 29 June 1988 in Deville, (20) stated: `In the absence of Community rules concerning the refunding of national taxes which have been wrongly levied, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens 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 may not make it impossible in practice to exercise rights which the national courts have a duty to protect.' (21)

27 One of the requirements to which the exercise of rights of action of this kind may be subject is, precisely, the one relating to time. National law may lay down periods of varying lengths after which rights lapse, or time-limits for bringing actions for the repayment of taxes wrongly levied. If those time-limits are not contrary to Community law - and the other two preliminary questions are concerned with this point - they can apply to all kinds of claims of that type, without that fact amounting, legally, to a limitation of the temporal effects of the judgments of the Court of Justice which brought to light the incompatibility of a national tax with Community law.

(iii) The link between the two legal concepts

28 The process of restricting, on an exceptional basis, the temporal effects of a judgment operates like a concentric circle within the wider circle represented by the `normal' effectiveness of that judgment. That effectiveness - which, as I have already said, does not preclude the application of the conditions laid down by national law, provided that they are not discriminatory and do not render illusory the right recognised by the Court of Justice - may even be reduced, in exceptional cases, by means of an express declaration of that kind.

29 The limitation of the temporal effects of an interpretative judgment operates, therefore, when there are a number of legal relationships still outstanding, not `exhausted' under domestic law, which would normally be affected by the interpretation of the Community provision given by the Court of Justice. The latter, if certain exceptional circumstances exist, may decide that the effects of that interpretation are not to be implemented, not even with respect to the legal situations which are yet to be resolved.

30 Therefore, the absence of statements of that kind in interpretative judgments of the Court of Justice (22) does not in any way prevent the national judicial authorities from applying to legal relationships arising or established before delivery of the judgment the provisions of a general nature which govern, from the procedural point of view, the exercise of the rights in question. The only limitations affecting the application of such provisions are the prohibition of discrimination and the requirement that remedies should not be merely illusory: I shall return later to both these points when analysing the second and third questions submitted.

31 Both the Commission and the various Governments of Member States which have submitted observations (Italy, France and the United Kingdom) agree with that view, drawing attention to the clear difference between the two legal concepts: a limitation on the temporal effects of a judgment of the Court of Justice, as an exceptional measure adopted by that Court in a specific case, operates on a different level from the general rules on the exercise of rights, from the procedural point of view, which it is incumbent on each Member State to draw up and on their judicial authorities to apply.

32 At the hearing the Commission nevertheless took a stance different from its earlier one. In its written observations it had suggested an answer to the first question which confirmed that the application of a time-limit for the exercise of a claim for repayment of sums paid but not due was not incompatible with the prerogative, vested exclusively in the Court of Justice, of limiting the temporal effects of judgments. (23) At the hearing, however, it formally proposed that the answer from the Court should be similar to that given in the judgments in Deville, (24) cited above, and Barra, (25) together with the particular requirement that the powers of the competent national courts should be expressly limited. (26)

33 It reached that conclusion after analysing the development of the Italian case-law regarding interpretation of the term `error' in relation to the payment of certain taxes that were not owed, and the consequent application of time-limits to claims for their repayment. In the Commission's view, the Corte di Cassazione had consistently interpreted that term in a very precise way (errors of calculation or assessment), which excluded cases of payments of tax sine causa, such as those which are contrary to Community law. That case-law, according to the Commission, had undergone a `spectacular' change in the 1996 judgment cited above, the lines of which were similar to the national measures adopted by France and Belgium, in order to escape the unfavourable consequences of an earlier judgment of the Court of Justice, which were considered in Deville and Barra.

34 I do not agree with that analysis. The Italian judicial authorities - specifically the Corte di Cassazione - drew the appropriate inferences from the Ponente Carni judgment, upholding the entitlement of taxpayers to repayment of the tax. If they applied a particular time-limit, they did so on a not unreasonable interpretation of a pre-existing legal provision - an interpretation which, moreover, sought to bring a specific set of circumstances into line with the general rules on time-bars applicable to all charges payable for Government action. (27) As the representative of the French Government stated at the hearing, there are no grounds for suspecting that, after that change in the case-law, there were any concealed intentions inconsistent with the impartiality and independence of that high judicial authority. Both the latter and other judicial bodies on a similar level must sometimes depart from their earlier case-law and, inevitably, they must do so in relation to a specific case.

35 Accordingly, I consider that the answer to the first question must lay stress on the clear difference between the two legal concepts to which that question refers: the fact that the Court of Justice did not, in its judgment in Ponente Carni, limit the temporal effects thereof is compatible with making actions for reimbursement of the tax to which what judgment relates subject to the general rules concerning such actions found in the Italian legal order.

The second question

36 By its second question the national court seeks to ascertain whether it is permissible, from the Community point of view, for actions for the reimbursement of charges paid in breach of Council Directive 69/335 to be subject to a time-limit of three years reckoned from the date of payment, which differs from the limitation period (10 years) which national law lays down for actions for the recovery of sums unduly paid between individuals.

37 It must be emphasised at the outset that, under Italian law, the time-limit mentioned by the national court affects not only actions for the repayment of taxes incompatible with Community law but also all actions for the repayment of any charge for Government action which was unduly levied, whether the reason for its illegality is attributable to a national or a Community provision.

38 As I pointed out in describing the national legislation applicable to actions for reimbursement of charges paid but not due, (28) Article 13(2) of DPR 641/1972 is not confined to charges paid in breach of Community law: on the contrary, it provides that a taxpayer may claim repayment of any charge for Government action paid in error, within a time-limit of three years as from the day of payment. Similar periods are prescribed for actions for reimbursement of other sums levied by customs authorities.

39 Any differing views among legal writers and in the case-law in Italy as to the interpretation of that precept - and more specifically the concept of `payment under a mistake' - are a matter affecting only domestic law, on which of course the Court of Justice must not express a view. Suffice it to say that the Suprema Corte di Cassazione, in judgment No 3458/96, cited above, considered that the time-limit laid down in the second paragraph of Article 13 of DPR 641/1972 extends to all charges for Government action unduly or mistakenly paid and, therefore, to the charge at issue in these proceedings. (29)

40 Starting from that premiss, I consider that no provision or principle of Community law prevents a national legislature from laying down limitation periods bringing about the extinguishment of rights or time-limits beyond which no action may be brought which differ according to the area of law involved, provided that they are applied without distinction to rights deriving from national provisions and to those deriving from Community provisions.

41 The national legislature is free to impose limitation periods or time-limits in the field of taxation and there is no need for them to coincide with those laid down for other relationships under civil law. No provision or principle of Community law obliges it, for such purposes, to treat tax relationships in the same way as relationships inter privatos.

42 Moreover, the Italian legal order sets very different time-limits according to the area of law concerned. Specifically, the general limitation period under ordinary law (ten years) is laid down by Article 2946 of the Codice Civile `except where otherwise provided by law' and there are numerous legal provisions which in fact impose shorter periods for the barring of certain rights or the exercise of certain rights of action. (30)

43 Like all the Member States that have submitted observations in these proceedings, I see no reason whatever for rejecting the view that a national legislature is entitled to impose for actions to recover tax revenue unduly paid time-limits for commencing proceedings which differ from those applicable to similar actions between private individuals.

44 The legitimacy of such a distinction was, moreover, upheld by the Court of Justice in paragraphs 22 to 25 of its judgment of 27 March 1980 in Denkavit Italiana, cited above. After recognising that Community law does not necessarily require a uniform rule common to all the Member States relating to formal and substantive conditions for contesting or recovering charges contrary to that law, and that the way in which the problem is dealt with varies from one State to another, and even within a single Member State, depending on the various kinds of taxes or charges involved, the Court of Justice accepted the viability of the two main sets of national rules in this area:

- In certain cases, objections to or claims for the recovery of charges unduly levied are subject, under national law, to specific temporal and formal conditions, both for complaints addressed to the tax authorities and for legal proceedings.

- In other cases, actions for the repayment of charges unduly paid must be brought before the ordinary courts, mainly in the form of claims for the refund of sums paid but not owed. Such actions are available for varying lengths of time, in some cases for the limitation period laid down under the general law.

45 The Court immediately went on to say - reiterating what it held in Rewe and Comet, cited above - that, from the Community point of view, the conditions to be met by the various national systems regarding claims for recovery of charges unduly paid whose illegality derived from Community law were those already mentioned: there should be no discrimination and the rights of action concerned should not be merely illusory. They are the expression, according to the recent judgment of 10 July 1997 in Palmisani, (31) of the `principle of equivalence' (equivalence with the requirements laid down for similar claims of a domestic nature) and of the `principle of effectiveness' of Community law, respectively.

46 In a case similar to this one, the Court of Justice had an opportunity to clarify its earlier doctrine even further in giving a preliminary ruling on a question by which the national court sought `in substance to ascertain the extent to which it is contrary to the general principles of Community law for national rules to provide for a mandatory time-limit of three years for the submission of all applications for reimbursement of duties unduly paid, where there are no grounds of force majeure justifying an exception'.

47 The reply, given in the judgment of 9 September 1989 in Bessin and Salson, (32) is perfectly applicable to the present case since the legal situations are patently analogous. The national provisions at issue in that case were those of the French Customs Code, which imposed a time-limit of three years for claims for the recovery of unduly paid import duties: those provisions departed from the general limitation period applicable where no other was specified, under the French Civil Code, to claims for the refund of sums unduly paid.

48 In its ruling on that question, the Court of Justice, after referring to the requirement of non-discriminatory application of national legislation, as compared with proceedings in purely national disputes of the same kind, and stating that such legislation must not make it impossible in practice to exercise the rights conferred by Community law, held that the three-year limitation period reflected `a legislative choice which does not have the effect of undermining the aforesaid requirement'.

49 Finally, in two judgments of 17 July 1997, Texaco and Olieselskabet Danmark (33) and Haahr Petroleum, (34) the Court of Justice repeated the same principle, confirming that `the laying down of reasonable limitation periods, which is an application of the fundamental principle of legal certainty, satisfies the two conditions referred to above and, in particular, cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought'. Consequently, it held that the limitation period of five years applied by Danish law to applications for the reimbursement of national taxes contrary to Community law was compatible with Community law, even where it wholly or partly prevented the requested refund.

50 There would thus be discrimination if the Italian provision barring actions for reimbursement of charges unduly paid laid down different time-limits according to the origin - in national or Community law - of the obligation to repay them. That would be the case if the legally prescribed period for claiming a refund of the charge, on the ground of incompatibility with Community law, were shorter than the legally prescribed period for claiming refund of the same charge on any ground of national law. But since that is not the case and the time-limit laid down by Article 13(2) of DPR 641/1972 applies without distinction to all actions for repayment of the charge, whatever their basis, the answer to the second question must uphold the compatibility of that provision with Community law.

51 At this stage of the debate, the Commission takes a different approach which prompts it to `reformulate entirely' the second preliminary question. In its view, as framed by the national court, that question should be regarded as inadmissible since it relates only to a problem of interpretation of domestic law, or else it should be reformulated in the following terms:

`Does Community law preclude a national provision which, as interpreted by the competent national authorities, makes actions seeking to secure repayment of a national charge contrary to Article 10 of Directive 69/335/EEC subject to a time-limit which presupposes the actual existence of a power of taxation on the part of a Member State and the existence of a corresponding fiscal obligation, and not to the limitation period applicable under national law to cases of repayment of sums "objectively undue" resulting from the non-existence of any power of taxation on the part of the State or any corresponding fiscal obligation?'

52 I do not approve of that approach as regards either the alleged inadmissibility of the question or the necessity or appropriateness of reformulating it.

53 As regards the objection of inadmissibility, it is not true that the second question concerns a problem of domestic law, as would be the case if it were merely a question of interpreting the term `charges paid under a mistake' appearing in Article 13(2) of DPR 641/1972. On the contrary, what the national court wishes to ascertain is whether, on the basis of the interpretation of that term adopted by the national judicial authorities, the application of a three-year time-bar to actions for repayment of the charge, rather than the 10-year limitation period for proceedings between individuals, is contrary to Community law. The question is therefore admissible since it seeks clarification of the case-law of the Court of Justice concerning equality as regards the conditions for actions for repayment of taxes contrary to Community law.

54 Nor, in my opinion, should the proposed reformulation of the second question be accepted. The national court does not go back to the `underlying supposition' of Article 13 of DPR 641/1972 or the existence or otherwise of the power of taxation of the State, nor does it infer from those suppositions that a time-limit of three years or a limitation period of 10 years is applicable. Those problems, on the contrary, are indeed the subject of questions on which a preliminary ruling has been sought by other Italian judicial authorities regarding repayment of the charge at issue in these proceedings, to which an answer must be given in the relevant cases. (35)

55 It is true, nevertheless, that in the legal grounds of the order for reference the national court maintains that the `system of repayment provided for in Article 13 of DPR 641/1972' runs counter to the general rules of national law under which a right of action for reimbursement of sums unduly paid is subject only to the ordinary generally applicable limitation period of 10 years. It adds that `in its judgment No 56 of 20 February 1995, the Italian Corte Costituzionale included within the scope of the legislation - proceedings for recovery of sums unduly paid - proceedings brought by taxpayers for repayment of charges for governmental action ...'.

56 The Commission, to the same effect, emphasises that the abovementioned judgment of the Corte Costituzionale `appears to run counter to' the doctrine laid down by the Suprema Corte di Cassazione in judgment No 3458/96, cited above: the Corte Costituzionale classified actions for the repayment of tax as `actions for the reimbursement of sums unduly paid', an expression which in Italian law has a clear and unequivocal meaning, in so far as it refers to Article 2033 of the Civil Code (`sums objectively not due'). It follows, in the Commission's view, that the limitation period applicable to those actions is 10 years, not the three-year time-bar laid down by DPR 641/1972.

57 In my opinion, that alleged discrepancy between the judgments of the two Italian courts is non-existent (36) and, if it did exist, it would be for the Court of Justice to incline towards one solution or the other. It would, in any event, be merely a problem of the application of conflicting internal provisions (on the one hand, the Civil Code, on the other, DPR 641/1972), the ultimate resolution of which is a matter solely for the Italian judicial authorities, under their own procedural system.

58 The decisive point is not, therefore, that actions for reimbursement are subject to different time-bars depending on whether they are tax claims or claims in civil proceedings, but rather that the solution adopted by domestic law, as interpreted by its judicial authorities, (37) should apply without distinction to actions for reimbursement based on Community law and to those based on domestic law. And that is precisely the position in relation to the charge at issue, as can be inferred from the evidence before the Court.

59 The Commission, both in its written submissions and, more extensively, at the hearing, maintains that the principle of equivalence would be undermined if actions for the reimbursement of taxes unduly paid, based on infringement of Community law, were to receive less favourable treatment than that enjoyed in Italy by actions of that kind where the basis of the claim is infringement of a superior provision of domestic law and, particularly, in cases of taxes paid under national laws contrary to the Constitution.

60 In its opinion, the `measures of national law' which must serve as a point of reference for applying the principle of equivalence are actions for recovery brought by taxpayers who have paid a tax under domestic law which has subsequently been declared unconstitutional. In its written observations, the Commission had stated that both Italian legislation and case-law regarded such actions as a case of `recovery of sums objectively not due' covered by the common rules of the Italian civil code (Article 2033) and therefore subject to the ordinary limitation period of 10 years. At the hearing, the Commission significantly departed from those statements, recognising that the problem `has no easy solution' and is a matter to be resolved by the Italian courts.

61 If, by way of premiss, it is conceded that it is the Italian judicial authorities who have the last word on this question, the information supplied on this point, at the hearing, by the Italian Government does not specifically support the Commission's stance.

62 The view put forward by the Corte di Cassazione (Combined Chambers) in its judgment No 2876 of 9 June 1989 concerning the consequences of a ruling of unconstitutionality of a law containing tax provisions, with regard to taxes already paid under it, is as follows:

- Judgments of the Corte Costituzionale which declare to be unlawful provisions ranking as laws eliminate the latter from the legal order ex tunc, in the sense that they can no longer be applied to outstanding legal relationships; legal relationships which have run their full course, that is to say those whose effects have been consolidated to such a point that they cannot be changed, are not affected by such pronouncements.

- Specifically, such judgments do not affect those tax relationships arising by operation of law which, for various reasons, must be regarded as having come to an end. Those reasons may include the existence of a previous judgment, or the fact that the tax assessment has become final (through not being challenged or through dismissal of a challenge), or the effluxion of prescription periods or time-limits laid down by the rules governing the tax.

- Therefore, payments of tax debts based on fiscal provisions held to be unconstitutional cannot be affected where the taxpayers allowed the legal relationship in question to consolidate.

- There is no basis for the view that, because of the retroactive effect of declarations of unconstitutionality, the tax obligation is non-existent in radice and, therefore, the general rule on charges improperly levied (namely Article 2033 of the Civil Code) would immediately take effect, so that the action could be brought without reference to the procedures for challenging tax assessments, and regardless of the time-limits laid down by the tax provisions.

- In conclusion, there is no basis for the view that in such cases (even where it is contended that there was no valid tax relationship, either original or supervening) an action for recovery of sums unduly paid provided for by the Civil Code would be available, rather than one covered by the specific rules for tax litigation, both substantive and procedural.

63 The same doctrine was reiterated in judgment No 5731 of the Corte di Cassazione (Combined Civil Chambers) of 21 June 1996, which summarises it in the following terms: `... a declaration of unconstitutionality of a provision creating a particular tax has no impact on tax relationships in respect of which the time-limits set for taxpayers to challenge tax assessments have expired; it cannot be considered that a declaration of unconstitutionality of a provision conferring a power of taxation has the effect of making the dispute immune to the time-limits and procedures applicable to tax litigation ... The incompatibility of a tax provision with the Constitution does not mean that the time-limits and procedures applicable to tax litigation can be disregarded, nor does it allow doubt to be cast upon tax assessments not duly challenged within the prescribed period ...'.

64 There is no foundation, therefore, for the Commission's allegation of unequal treatment as between actions for recovery of undue taxes based on infringement of a higher-ranking provision, depending on whether that provision is contained in domestic or in Community legislation.

65 Consequently, it is necessary neither to reformulate the second preliminary question nor to amend it so as to bring into consideration the alleged inequality of conditions for bringing proceedings applicable to the two kinds of action for recovery of taxes unduly paid. The tenor of the second question is clear, and must be reflected in the answer given by the Court of Justice. In view of the considerations which I have just set out, I propose that the Court give an answer confirming its earlier case-law, reiterating that Community law does not preclude national law from imposing a time-limit of three years for bringing proceedings against the tax authorities for recovery of taxes paid but not due, even where that period differs from that laid down for actions for recovery of sums unduly paid between individuals, provided that the former time-limit applies without distinction to actions for recovery based on grounds of domestic law and those deriving from the application of Community provisions.

The third preliminary question

66 The third question, which presupposes an affirmative answer to the previous one, seeks to determine the compatibility or otherwise with Community law of national legislation which, in relation to actions for the recovery of taxes unduly paid, sets as the starting point of the three-year time-limit the date of payment of the tax, at which time the Community directive applicable to it had not been correctly incorporated into national law.

67 The written observations of the plaintiff, the Commission and various Member States have focused on the impact on this problem of the judgment of the Court of Justice of 25 July 1991 in Emmott. (38) In that judgment the Court of Justice stated that `until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred on him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time'. (39)

68 It is true that the scope of Emmott had nevertheless subsequently been cut down by the Court of Justice when it emphasised that the rule in that case can be applied only when the same singular circumstances arise as characterised that case. In its judgments in Steenhorst-Neerings, (40) and in Johnson, (41) the Court of Justice confirmed that national limitation periods applied to requests for payment of sums owing in respect of social benefits under certain directives, even where the directives in question had not been properly incorporated into national law.

69 While the present case has been pending, the Court of Justice has given judgment in Haahr Petroleum and Texaco and Olieselskabet Danmark, cited above. In them it again rejected application of the principle laid down in Emmott. In both cases a claim for a refund - based on infringement of Article 95 of the Treaty - had been dismissed by the Danish authorities in reliance on a national provision under which legal proceedings to secure the refund of taxes unduly paid becomes barred after a period of five years reckoned from the date of payment. The Court of Justice repeated that, even where that provision wholly or partly prevented the repayment of the taxes in question, its application to those two cases was not contrary to Community law.

70 Finally, two months before the hearing in this case the Court of Justice gave judgment in Fantask, (42) which is particularly important in the present context since the factual and legal aspects of that case and this were similar. Fantask was concerned with the repayment of sums relating to:

- the same type of national tax (Danish tax on the registration of companies);

- the same type of incompatibility with Community law (specifically, Directive 69/335) of the national provision governing the charge;

- the same barrier of national time-limits or limitation periods (five years, under national legislation, reckoned from the day of payment of the tax).

71 As in this case, in Fantask the national court, confronted with a dispute of the kind described, asked the Court of Justice `whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive'. The submissions of the plaintiff companies and of the Commission were also based on the rule in Emmott, the application of which was argued against by the Governments that submitted observations.

72 The Court of Justice chose once more to adopt the last-mentioned solution, reiterating the line of reasoning which I have outlined above.

73 First, as a general principle, it pointed out that, in the absence of Community legislation on the matter, it is for the domestic legal order of each Member State to regulate proceedings for the recovery of sums unduly paid, provided that the conditions are not less favourable than those governing similar domestic claims and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

74 Secondly, after emphasising the compatibility with Community law of the setting of reasonable time-limits within which proceedings had to be commenced or else be barred, in the interests of legal certainty which protects both the taxpayer and the Administration, it stressed that it cannot be considered that such time-limits make it virtually impossible or extremely difficult to exercise rights conferred by Community law, even where, by definition, failure to comply with them means that the action will fail wholly or in part. Specifically, the period of five years laid down by Danish law was reasonable and was applied in the same way to actions based on Community law as to those based on domestic law.

75 Thirdly, it again rejected the application to proceedings of this kind of the rule in Emmott, the solution adopted in that case being justified by its own special circumstances in which the time-bar had the effect of entirely depriving the plaintiff of any opportunity of asserting her right to equal treatment under a Community directive.

76 Finally, the Court of Justice concluded that `Community law, as it now stands, does not prevent a Member State which has not properly transposed [the directive] from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law'.

77 In view of the clarity of the terms used by the Court and of the evident analogy between the factual and legal situations in Fantask and this case, the Commission decided, at the hearing, not to adhere to its earlier position and conceded that the question had been definitively settled by the judgment in Fantask. The plaintiffs in the main proceedings, on the other hand, endeavoured on the same occasion (43) to highlight differences between Danish and Italian law which made it inappropriate to apply the rule in Fantask to the present case.

78 In my opinion that endeavour was misconceived. First, because its point of departure was wrong: rather than finding alleged differences between Fantask and that case, what it needed to prove was that the situations in Emmott and that case were analogous, since the case-law subsequent to Emmott had drawn attention to the singularity of the circumstances of that case, which decisively affected the solution adopted. At the hearing the United Kingdom Government stressed in that respect that - among other things - it was Mrs Emmott's own authorities who urged her not to appeal. On the contrary, nothing prevented the Italian companies from exercising their right of appeal against the tax assessments made against them. (44)

79 Second, and regardless of the foregoing point, the alleged differences between one national legislation and another are irrelevant as regards the repercussions for this case of the rule in Fantask. Whether the time-limit is of five or of three years and whether it is laid down in a general rule or a special rule applicable to a specific class of taxes and whether or not there has been a change in the case-law on the interpretation of that pre-existing provision, what is important is that the Court of Justice has confirmed that the time-limit - of five or of three years - which can be relied on to resist actions, founded on Community law, for the repayment of taxes improperly levied, may start to run from the time at which they were paid and not from the time at which the State properly transposed the directive into national law.

80 That statement - which, obviously, presupposes the non-existence of provisions of Community law governing the matter and the existence of a national provision which lays down the time-limit on a non-discriminatory basis - is not rendered invalid by the fact that, logically, the expiry of that period prevents repayment of the tax paid. That is an inherent feature of a time-limit of that kind which, inspired by the principle of legal certainty, does not thereby detract from the right to judicial protection: in the period of three years following payment, the possibility of challenging the tax assessment was open to the taxpayers.

81 It might be thought that that solution is not particularly satisfactory from the standpoint of taxpayers who have been obliged to pay a tax contrary to Community law. And that is indeed the case. A possible solution, albeit one not without serious difficulties, would be to establish uniform Community rules on this point, harmonising the various national regimes. Until such legislation exists, it is for the Member State to determine, under the conditions amply described above, the requirements for actions for reimbursement.

82 It is true that, in the exercise of that power, the Member States - as far as this case is concerned, the Italian Republic - must act in accordance with the requirements of Article 5 of the Treaty. It is also true that some conduct on the part of the Italian authorities regarding repayment of the charge at issue in these proceedings, as described in the submissions of the parties, appears to have placed in the way of actions for reimbursement more obstacles than might reasonably be expected, in the light of that article. (45) But these preliminary-ruling proceedings cannot be converted into infringement proceedings under Article 169 of the Treaty, nor can the fact be overlooked that the official action taken by the Italian Republic has been essentially in conformity with the obligations deriving from the Treaty: its legislative authorities have abolished the national tax which was contrary to Community law and expressly recognised entitlement to reimbursement of it, (46) a right which is also safeguarded by the Italian judicial authorities, albeit subject to the limitations of the domestic provisions on limitation of actions.

Conclusion

83 I therefore propose that the Court of Justice give the following answers to the questions submitted by the Tribunale Civile di Genova:

(1) The application of time-limits laid down by a national provision for bringing proceedings for reimbursement of taxes paid but not due is not equivalent to a limitation of the temporal effects of a judgment of the Court of Justice, which may only be declared by the latter.

(2) Community law does not preclude national law from imposing a time-limit of three years for bringing proceedings against the tax authorities to recover taxes paid but not due even where that time-limit is different from that laid down for recovery of sums paid but not due between individuals, provided that that time-limit applies without distinction to actions for reimbursement based on domestic law and those which derive from the application of Community provisions.

(3) Community law does not preclude application to a claim for reimbursement of a tax which is incompatible with a directive of a national provision under which a right of action to bring proceedings for reimbursement of taxes paid but not due is barred on the expiry of three years after payment, even where that provision totally or partially prevents repayment of the taxes concerned.

(1) - Joined Cases C-71/91 and C-178/91 [1993] ECR I-1915.

(2) - OJ, English Special Edition 1969 (II), p. 412.

(3) - The relevant measure was Decree Law No 331 of 30 August 1993, converted into Law No 427 of 29 October 1993.

(4) - To that effect, see the judgments of the Corte di Cassazione (First Civil Chamber) of 28 March 1994 (No 2992); of 23 November 1994 (No 9900), and of 23 February 1996 (Nos 4468/96 and 3458/96), the latter having been delivered by the Combined Chambers (Sezioni Unite). Similarly, in the second paragraph of the grounds of judgment No 56 of 24 February 1995, the Corte Costituzionale, after outlining the problematical legislative background to the charge, considered that it should be abolished as regards previous years (1993): `Since the charge was improperly levied by the Italian State, in breach of Article 10 of Directive 69/335/EEC of 17 July 1969, as interpreted by the Court of Justice in its judgment of 20 April 1993 in Joined Cases C-71/91 and C-178/91, the sums paid are recoverable under Community law, which is directly applicable within the Italian legal order'.

(5) - Article 633 of the Italian Code of Civil Procedure allows judicial authorities, when certain conditions are fulfilled (debts which are certain, liquid and payable, based on authentic documents), to issue a summary payment order, requiring the debtor, albeit on a provisional basis, to pay the sum claimed.

(6) - The application of Law No 428/90 to claims for the reimbursement of certain taxes is the subject of questions submitted for a preliminary ruling in Cases C-228/96 Aprile II and C-343/96 Dilexport.

(7) - Case 43/75 [1976] ECR 455.

(8) - The same approach has often been used by constitutional or para-constitutional courts when faced with problems deriving from a declaration of unconstitutionality of laws. See, in that connection, the article by E. García de Enterría, `Un paso importante para el desarrollo de nuestra justicia constitucional: la doctrina prospectiva en la declaración de ineficacia de las leyes inconstitucionales', Revista Española de Derecho Administrativo, 1989, No 61, page 5 et seq.

(9) - `If the action is well founded, the Court of Justice shall declare the act concerned to be void. In the case of a regulation, however, the Court of Justice shall, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive.'

(10) - Case C-228/92 Roquette Frères [1994] ECR I-1445, paragraph 17.

(11) - Thus, paragraph 30 of Case C-163/90 Legros and Others [1992] ECR I-4625 states: `It should be observed that it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying upon the provisions thus interpreted with a view to calling in question legal relationships established in good faith. ... In determining whether or not to limit the temporal effect of a judgment it is necessary to bear in mind that although the practical consequences of any judicial decision must be weighed carefully, the Court cannot go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from a judicial decision (judgment in Case 24/86 Blaizot [1988] ECR 379, paragraphs 28 and 30).'

(12) - Case 61/79 [1980] ECR 1205, paragraph 16.

(13) - Joined Cases C-367/93 to C-377/93 [1995] ECR I-2229, paragraph 42.

(14) - Case C-330/95 [1997] ECR I-3801, paragraph 28.

(15) - Case C-415/93 [1995] ECR I-4951, paragraph 141.

(16) - Joined Cases C-197/94 and C-252/94 [1996] ECR I-505, paragraph 47.

(17) - Case 33/76 [1976] ECR 1989.

(18) - Case 45/76 [1976] ECR 2043.

(19) - The basis of this right, in the case of repayment of national taxes incompatible with Community law, is to be found in various rules or principles, to some of which reference has been made in judgments of the Court of Justice. Thus mention has been made of Article 5 of the Treaty, in so far as it requires the Member States to ensure fulfilment of Treaty obligations; on other occasions, reference has been made to the need to uphold the direct effect of the Community provisions with which the national provision establishing the tax is incompatible; mention has also been made of the general prohibition of unjust enrichment, from which the State would benefit if it did not have to repay the sums improperly levied.

(20) - Case 240/87 [1988] ECR 3513.

(21) - Those statements are a consistent feature in what is now a long series of judgments which, starting with Rewe and Comet, cited above, have been delivered in this area: Case 177/78 Pigs & Bacon Commission [1979] ECR 2161; Case 68/79 Just [1980] ECR 501; Case 265/78 Ferwerda [1980] ECR 617; Case 61/79 Denkavit Italiana [1980] ECR 1205; Case 811/79 Ariete [1980] ECR 2545; Case 826/79 MIRECO [1980] ECR 2559; Case 199/82 San Giorgio [1983] ECR 3595; Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard [1988] ECR 1099; Case C-5/94 Hedley Lomas [1996] ECR I-2553, among others.

(22) - According to settled case-law of the Court of Justice, such a limitation may be declared only in the judgment giving the requested interpretation. Obviously, only the Court of Justice can limit the temporal effects of its own judgments.

(23) - It is true that, in its written submissions, the Commission had referred to the Deville judgment and to a possible analogy between it and the present case, but in rather hypothetical terms: thus, in paragraph 16 of those submissions, the Commission `wonders whether the interpretative principle formulated in Deville might not also be applicable ... and does not exclude the possibility of the conclusion being reached that, paraphrasing the operative part of Deville, the following formulation could be adopted ...'.

(24) - In the operative part of that judgment, the Court of Justice held that, subsequent to a judgment of the Court of Justice from which it follows that certain legislation is incompatible with the Treaty, a national legislature may not adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for recovery of taxes which were wrongly levied under that legislation.

(25) - Case 309/85 [1988] ECR 355.

(26) - The suggested answer was: `The judicial authorities of a Member State, following a judgment of the Court of Justice holding that certain tax legislation is incompatible with a Community directive, may not assign to a procedural provision a new interpretation which specifically reduces the possibility for persons concerned to seek reimbursement of a tax wrongly levied by that Member State.'

(27) - See point 12 of this Opinion.

(28) - Point 7 of this Opinion.

(29) - In that respect, see point 12 of this Opinion, setting out the reasoning of the judgment of the Corte di Cassazione.

(30) - In the Italian Codice Civile itself, Article 2947 et seq., under the headings `Short limitation periods' and `Deemed limitation of actions', governs cases in which the limitation periods are shorter than usual. For example, five years for damages, five years in company matters, one year for transport and insurance contracts, one or three years, as the case may be, in employment relationships, and so on.

(31) - Case C-261/95 [1997] ECR I-4025.

(32) - Case 386/87 [1989] ECR 3551, paragraphs 15 to 18.

(33) - Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263, paragraphs 45 to 49.

(34) - Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53.

(35) - Joined Cases C-10/97 to C-22/97. At the hearing, the Commission refrained from making any submissions on the effects of possible `legal non-existence' of national laws incompatible with Community Law, which in its opinion could be inferred from the Simmenthal judgment, and expressly stated that it preferred to defer its submissions on this point until the hearing in the cases mentioned above.

(36) - The judgment of the Corte Costituzionale referred solely to the requirement of prior exhaustion of administrative remedies as an essential precondition for the availability of court proceedings. That requirement is considered unconstitutional, in the following terms:

`According to settled case-law of this Court, to make legal proceedings subject to the requirement of prior exhaustion of administrative remedies, thereby deferring the possibility of bring such proceedings until a particular period of time has elapsed since lodgment of the administrative appeal, is only lawful when justified by requirements of a general nature or superior principles of justice, and the fact remains that, even in such circumstances, the legislature must impose that requirement in the least burdensome terms possible.

For disputes covered by Article 12 of DPR 641/1972, as for those covered by the analogous provisions of Decrees 640 and 642, there is no rationale for justifying the limitation imposed on the principle laid down in Article 24 of the Constitution. Such disputes do not involve technical verifications which might disclose the necessity or appropriateness of the judicial stage being preceded by an administrative analysis (cf. judgment No 15 of 1991), particularly where, as in this case, the proceedings concern repayment of taxes improperly levied by the tax administration. There are no reasons to justify the privilege of special rules, in favour of the debtor, applicable to actions against the tax authorities for recovery of sums unduly paid.' The Commission seeks to apply that last sentence, taken out of its context, also to time-limits for those actions, which in my view clearly goes beyond the ratio decidenci of the judgment, which certainly does not refer to the temporal difficulties concerning actions for reimbursement but is concerned, rather, with the unjustified requirement of first exhausting administrative remedies.

(37) - The Court of Justice has repeatedly held (see, amongst the most recent cases, Case C-300/95 Commission v United Kingdom [1997] ECR I-2649, paragraph 37) that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts.

(38) - Case C-208/90 [1991] ECR I-4269.

(39) - Paragraph 23.

(40) - Case C-338/91 [1993] ECR I-5475.

(41) - Case C-410/92 [1994] ECR I-5483.

(42) - Case C-188/95 [1997] ECR I-6783, paragraphs 42 to 52.

(43) - A joint hearing was held for Case C-231/96 EDIS, C-260/96 SPAC, C-279/96 Ansaldo Energia, C-280/96 Marine Insurance Consultant, and C-281/96 GMB and Others.

(44) - EDIS's own counsel made this clear at the hearing when he conceded that, as early as 1989 (and thus not only before judgment was delivered in Ponente Carni but even before the request for a preliminary ruling was submitted in that case), another EDIS company linked with his client and certain other Italian companies had taken proceedings to challenge the charge for entry on the register. Although their actions were dismissed, on substantive grounds, it is clear that they were not denied legal protection.

(45) - Inter alia, the need to bring legal proceedings in order to secure a right enforceable against the tax authorities, a requirement which may also lead to an unjustified increase in litigation - and, thereby, a delay in the administration of justice - to the detriment of taxpayers.

(46) - Article 61 of Decree-Law No 331 of 30 August 1993 lays down the procedure for reimbursement of sums improperly paid in that respect, either by means of an administrative claim (for sums paid in respect of the 1992 tax year) or by a claim for compensation (for those paid in respect of 1993).