Dilexport Srl v Amministrazione delle Finanze dello Stato.
Date: 1999-02-09
19 In response to the preliminary observation of the Italian Government to the effect that the national court manifestly lacks jurisdiction to entertain the main proceedings, it must be borne in mind that in its judgment in Case 65/81 Reina v Landeskreditsbank Baden-Württemberg [1982] ECR 33, paragraph 7, the Court laid down the principle that it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure.  It must therefore abide by the decision from a court of a Member State in so far as it has not been overturned in any appeal procedures provided for by national law (see Case C-10/92 Balocchi v Ministero delle Finanze [1993] ECR I-5105, paragraphs 16 and 17).
The first and second questions
23 It should be borne in mind that, according to settled case-law of the Court, the right to a refund of charges levied in a Member State in breach of rules of Community law is the complement of the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of domestic charges, as interpreted by the Court of Justice (San Giorgio, cited above, paragraph 12; Case 309/85 Barra v Belgium and Another [1998] ECR 355, paragraph 17, and Case C-62/93 BP Supergaz v Greek State [1995] ECR I-1883, paragraph 40). The Member State is therefore required in principle to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165, paragraph 20).
24 However, the Court has also observed on several occasions that the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States, and even within a single Member State, according to the various kinds of taxes or charges in question. In certain cases, objections or claims of that kind are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges which were paid but not due must be brought before the ordinary courts, mainly in the form of actions for refund of sums paid but not owed, such claims being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see, most recently, Case C-228/96 Aprile v Amministrazione delle Finanze dello Stato [1998] ECR I-7141, paragraph 17).
25 This diversity between national systems derives mainly from the lack of Community rules on the refund of national charges levied though not due. In such circumstances, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, most recently, Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951, paragraphs 19 and 34, Case C-260/96 Ministero delle Finanze v SPAC [1998] ECR I-4997, paragraph 18, and Case C-228/96 Aprile, cited above, paragraph 18).
26 As regards the latter principle, the Court has recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, which protects both the taxpayer and the administration concerned (Rewe, cited above, paragraph 5, and Comet, cited above, paragraphs 17 and 18, and Case 61/79 Denkavit ltaliana [1980] ECR 1205, paragraph 23; see also Case C-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 28, and Case C-90/94 Haahr Petroleum v benrå Havn and Others [1997] ECR I-4085, paragraph 48). Such time-limits are not liable to render virtually impossible or excessively difficult the exercise of rights conferred by Community law. In that regard, a time-limit of three years under national law, reckoned from the date of the contested payment, appears reasonable (Edis, cited above, paragraph 35, SPAC, cited above, paragraph 19, and Case C-228/96 Aprile, cited above, paragraph 19).
27 Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing reimbursement to all actions for repayment of charges or dues levied in breach of Community law (Edis, cited above, paragraph 36, SPAC, cited above, paragraph 20 and Case C-228/96 Aprile, cited above, paragraph 20).
28 Thus, Community law does not preclude the legislation of a Member State from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies (Edis, cited above, paragraph 37, SPAC, cited above, paragraph 21, and Case C-228/96 Aprile, cited above, paragraph 21).
29 In this case, the first point to note is that a time-limit of the kind provided for in Article 29(1) of the 1990 Law cannot be regarded as applying only to actions based on Community law (see Case C-228/96 Aprile, cited above, paragraph 22).
31 Further it is clear from the information given to the Court by the Italian Government that the limitation period of three years, which applies to all actions for reimbursement of sums paid in respect of customs operations, is the same as that which, under Italian legislation, applies to actions for repayment of numerous indirect taxes (Case C-228/96 Aprile, cited above, paragraph 29), the subject-matter of which may be regarded, if not as identical, at least as closely comparable to that of the actions at issue in the main proceedings.
37 It should be borne in mind that, in Barra, cited above, paragraph 19, the Court held that Community law precludes a national legislative provision which restricts repayment of a duty held to be contrary to the Treaty by a judgment of the Court solely to plaintiffs who brought an action for repayment before delivery of the judgment. Such a provision simply deprives natural and legal persons who do not meet that condition of the right to obtain repayment of amounts paid but not due and therefore renders the exercise of the rights conferred on them by Community law impossible.
38 Similarly, in Deville, cited above, the Court held that a national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation is incompatible with the Treaty, adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for repayment of charges levied though not  due under that legislation.
39 It is clear from those judgments that a Member State may not adopt provisions making repayment of a tax held to be contrary to Community law by a judgment of the Court, or whose incompatibility with Community law is apparent from such a judgment, subject to conditions relating specifically to that tax which are less favourable than those which would otherwise be applied to repayment of the tax in question (Edis, cited above, paragraph 24).
40 In the present case, it is sufficient to point out that the Court has already held in paragraphs 29 and 31 of its judgment of 17 November 1998 in Aprile, cited above, that the contested provision, although reducing the time-limit within which repayment may be claimed of sums paid but not due in respect of the consumption tax on bananas, applies to all sums paid in relation to customs operations which it makes subject to rules on time-limits and limitation periods that are the same for a whole range of internal charges and taxes. The Court has thus held that a provision such as Article 29 of the 1990 Law is compatible with Community law.
41 In those circumstances, the legislation at issue cannot be regarded as a measure intended specifically to limit the consequences of the findings made by the Court in its judgments concerning the consumption tax on bananas.
42 Moreover, as the Court held in its judgment of 17 November 1998 in Aprile, cited above, paragraph 28, the provision at issue sets a time-limit which is sufficient to guarantee the effectiveness of the right to reimbursement. It is clear from the written observations and oral argument presented to the Court that the Italian courts, including the Corte Suprema di Cassazione itself, have interpreted that provision as allowing proceedings to be instituted within the three years following its entry into force. In those circumstances, that provision cannot  be regarded as having retroactive effect.
47 It should be borne in mind that, as the Court has held, Community law does not prevent a national legal system from disallowing repayment of charges which have been levied but were not due where to do so would entail unjust enrichment of the recipients.  There is nothing in Community law, therefore, to prevent courts from taking account, under their national law, of the fact that the charges levied but not due have been incorporated in the price of the goods and thus passed on to the purchasers.  Therefore, national legislative provisions which prevent the reimbursement of taxes, duties and charges levied in breach of Community law cannot be regarded as contrary to Community law in principle, where it is established that the person required to pay such charges has actually passed them on to other persons (San Giorgio, cited above, paragraph 13, Comateb and Others, cited above, paragraph 21, and Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraph 26).
48 On the other hand, any rules of evidence which have the effect of making it virtually impossible or excessively difficult to secure repayment of charges levied in breach of Community law are incompatible with Community law.  That is so particularly in the case of presumptions or rules of evidence intended to place upon the taxpayer the burden of establishing that the charges unduly paid have not been passed on to other persons or of special limitations concerning the form of the evidence to be adduced, such as the exclusion of any kind of evidence other than documentary evidence (San Giorgio, cited above, paragraph 14, and Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes et Droits Indirects [1988] ECR 1099, paragraph 12).
51 It should be borne in mind that the Court has no jurisdiction to interpret national law (see, inter alia, Deville, cited above, paragraph 17) and that it is for the national court alone to determine the precise scope of national laws, regulations or administrative provisions (see, to that effect, Case C-347/89 Eurim-Pharm [1991] ECR I-1747, paragraph 15, and Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas v Konstandinidis, Skreb and Schroll v Stauereibetrieb Paetz [1992] ECR I-6577, paragraph 39).
52 If, as the national court considers, there is a presumption that the duties and charges unlawfully levied or collected when not due have been passed on to third parties and the plaintiff is required to rebut that presumption in order to secure repayment of the charge, the provisions in question must be regarded as contrary to Community law.
54 The answer to the fourth and fifth questions must therefore be that Community law precludes a Member State from making repayment of customs duties and taxes contrary to Community law subject to a condition, such as the requirement that such duties or taxes have not been passed on to third parties, which the plaintiff must show he has satisfied.
The sixth question
56 The Italian Government has objected that the question is inadmissible because the national court has not explained its relevance to the case.  Suffice it to note, in that regard, that according to settled case-law of the Court of Justice, the national court is best placed to assess the need for a preliminary ruling in order to give its judgment (see, to that effect, Case C-228/96 Aprile, cited above, paragraph 11).