WRITTEN QUESTION E-1816/00

by Mauro Nobilia (UEN) to the Commission

(9 June 2000)

Subject: Recovery of sums paid out under Article 29 of Law No 427/1993 on unadulterated polyethylene

By virtue of Decree-Law No 331 of 1993, converted into Law No 427/1993, the Italian Government introduced a levy of 10 % on unadulterated polyethylene. However, there were serious doubts about the legitimacy of this law from the outset. At Community level the Commission instituted twofold infringement proceedings (94/4232 pursuant to Article 199 of the EEC Treaty) on the grounds of a blatant distortion of the Community market caused by the difference in the tax base for Italian goods (the value of the raw materials) and for Community goods (the value of the manufactured product) and by the existence of State aid in the event of the tax revenue being used.

Italy was able to avoid losing the case on the grounds that the tax was of a temporary nature, the fact that it did not use the revenue and that it undertook to eliminate the difference in the tax base. In the meantime, the adoption of Legislative Decree No 22/1997 abolished the tax, but without solving the problem of the destination of the sums paid up to that moment and unused because of the veto imposed by the Commission.

The Italian Ministry for the Treasury, when the matter was referred to it, pointed out that because of administrative obstacles caused by the Commission's veto, the revenue already entered in the accounts for the previous years could not be earmarked for the intended purpose (immediate full refunds payable to those who had paid the sums, or to the consortium Polieco, set up pursuant to Article 48 of Legislative Decree No 22/1997, the logical recipient of the funds by virtue of the institutional duties conferred on it, namely the recovery and recycling of polyethylene waste).

Since a law which conflicts with Community law must be repealed retroactively (cf. CJEC 12/7/1973, case 70/72) can the Commission say:

1. what steps it intends to take and what others it will ask the Italian State to take with a view to recovering the sums paid out pursuant to Article 29 of Law No 427/1993?

2. whether it does not consider it appropriate to make provision for compensation, even if only indirect, for agricultural producers, the only sector actually adversely affected by the tax on polyethylene (cf. CJEC 7/2/1993, case 39/72)?

Joint answer to Written Questions E-1816/00 and P-1989/00 given by Mr Bolkestein on behalf of the Commission

(13 July 2000)

The Commission confirms that the infringement proceedings initiated against Italy under Article 226 (formerly Article 169) of the EC Treaty for having introduced a special 10 % levy on the price of unadulterated polyethylene have been shelved following the repeal of the law concerned.

The Court of Justice has consistently ruled that charges levied in breach of Community law must be refunded. However, the repayment of sums wrongly collected is governed by the procedures and arrangements of national law, which may not be stricter than those applied in cases not involving Community law or make repayment excessively difficult or indeed impossible.

Similarly, in accordance with the well-established case-law of the Court of Justice, Community law demands that the Member State responsible for imposing charges incompatible with that law compensate those concerned for the injury caused by its action. Action for damages is likewise subject to the rules of substance and procedure of national law.

The Commission will be contacting the Italian authorities to take stock of the situation.