Commission of the European Communities v Italian Republic.
Date: 2003-12-09
25.  According to the Court's settled case-law, in the absence of Community rules on the recovery of national charges levied though not due, 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, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see,   inter alia  , Case 33/76   Rewe   [1976] ECR 1989, paragraph 5, and Case C-255/00   Grundig Italiana   [2002] ECR I-8003, paragraph 33).
29.  A Member State's failure to fulfil obligations may, in principle, be established under Article 226 EC whatever the agency of that State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution (Case 77/69   Commission   v   Belgium   [1970] ECR 237, paragraph 15).
30.  The scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, particularly, Case C-382/92   Commission   v   United Kingdom   [1994] ECR I-2435, paragraph 36).
31.  In this case what is at issue is Article 29(2) of Law No 428/1990 which provides that duties and charges levied under national provisions incompatible with Community legislation are to be repaid, unless the amount thereof has been passed on to others. Such a provision is in itself neutral in respect of Community law in relation both to the burden of proof that the charge has been passed on to other persons and to the evidence which is admissible to prove it. Its effect must be determined in the light of the construction which the national courts give it.
32.  In that regard, isolated or numerically insignificant judicial decisions in the context of case-law taking a different direction, or still more a construction disowned by the national supreme court, cannot be taken into account. That is not true of a widely-held judicial construction which has not been disowned by the supreme court, but rather confirmed by it.
33.  Where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with Community law, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with Community law.
35.  The reasoning followed in the cited judgments of the Corte suprema di cassazione is itself based on a premiss which is a mere presumption, namely that indirect taxes are in principle passed on by subsequent  sales by economic operators where they have the chance. The other factors, if any, taken into account, namely the commercial nature of the taxpayer's business, the fact that its financial situation is not parlous and the levying of the tax in question throughout the national territory for an appreciable period without objection, permit the conclusion that an undertaking which has carried on its business in such a context has in fact passed on the charges in question only if one relies on the premiss that all economic operators act thus, save in special circumstances such as the absence of one or other of those factors. However, as the Court has already held (see   San Giorgio  , cited above, paragraphs 14 and 15; Joined Cases 331/85, 376/85 and 378/85   Bianco and Girard   [1988] ECR I-1099, paragraph 17;   Commission   v   Italy  , cited above, paragraph 7, and   Comateb and Others  , paragraph 25), and for the economic reasons pointed out by the Advocate General in points 73 to 80 of his Opinion, such a premiss is unjustified in a certain number of situations and is merely a presumption which cannot be accepted in the context of the examination of claims for repayment of indirect taxes contrary to Community law.
37.  Such a requirement, concerning the years for which repayment is claimed, which is raised during the period for which the accounting documents in question must obligatorily be preserved, cannot be regarded in itself as reversing, to taxpayers' disadvantage, the burden of proof that the charges have not been passed on to third parties. Such documents provide neutral factual information from which, in particular, the authorities may try to show that the charges have been passed on to others (see, to that effect, Case C-147/01   Weber's Wine World and Others   [2003] ECR I-11365, paragraph 115). In that situation, and in the absence of special circumstances upon which the claimant could rely, failure to produce accounting documents when they are requested by the authorities can be regarded by them or by the courts as a factor to be taken into account in showing that the charges have been passed on to third parties. However, that factor cannot, by itself, be sufficient for it to be presumed that those charges have been passed on to third parties nor,   a fortiori  , to impose on the claimant the onus of rebutting such a presumption by proving the contrary (see, to that effect,   Weber's Wine World and Others  , cited above, paragraph 116).