Hans Just I/S v Danish Ministry for Fiscal Affairs.
Date: 1980-02-27
14 THE FIRST PART ASKS WHAT RATE SHOULD BE APPLIED TO IMPORTED PRODUCTS WHERE A SYSTEM OF TAXATION AT DIFFERENT RATES HAS BEEN FOUND TO BE INCOMPATIBLE WITH COMMUNITY LAW . SINCE COMMUNITY LAW , AS IT STANDS AT PRESENT , DOES NOT RESTRICT THE FREEDOM OF MEMBER STATES REGARDING THE FIXING OF RATES OF TAX IN THIS RESPECT , IT FOLLOWS FROM ARTICLE 95 THAT THE RATE TO BE APPLIED TO IMPORTED PRODUCTS MUST BE FIXED IN SUCH A MANNER AS TO ABOLISH THE MARGIN OF DISCRIMINATION OR PROTECTION WHICH IS PROHIBITED BY THE TREATY .
22 A COMPARISON OF THE NATIONAL SYSTEMS SHOWS THAT THE PROBLEM OF DISPUTING CHARGES WHICH HAVE BEEN UNLAWFULLY CLAIMED OR THE REFUNDING OF CHARGES PAID BUT NOT OWED IS SETTLED IN THE VARIOUS MEMBER STATES , AND EVEN WITHIN A SINGLE MEMBER STATE , IN DIFFERENT WAYS , ACCORDING TO THE VARIOUS KINDS OF TAXES OR CHARGES IN QUESTION . IN CERTAIN CASES OBJECTIONS OR CLAIMS OF THIS TYPE 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 . IT WAS WITH A VIEW TO THE OPERATION OF SUCH REMEDIES THAT , IN ITS JUGDMENTS IN THE REWE AND COMET CASES OF 16 DECEMBER 1976 ( CASE 33 AND CASE 45/76 , ( 1976 ) ECR 1989 AND 2043 RESPECTIVELY ) THE COURT HELD THAT IT WAS COMPATIBLE WITH COMMUNITY LAW TO LAY DOWN REASONABLE LIMITATION PERIODS IN THE INTERESTS OF LEGAL CERTAINTY WHICH PROTECTS BOTH THE TAX-PAYER AND THE ADMINISTRATION CONCERNED .
23 IN OTHER CASES CLAIMS FOR REPAYMENT OF CHARGES WHICH WERE PAID BUT NOT OWED MUST BE BROUGHT BEFORE THE ORDINARY COURTS , MAINLY IN THE FORM OF CLAIMS FOR THE REFUNDING 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 , WITH THE RESULT THAT MEMBER STATES INVOLVED MAY BE FACED WITH A HEAVY ACCUMULATION OF CLAIMS WHEN CERTAIN NATIONAL TAX PROVISIONS HAVE BEEN FOUND TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
25 IT FOLLOWS FROM THE JUDGMENTS OF 16 DECEMBER 1976 , IN THE REWE AND COMET CASES , SUPRA , THAT , APPLYING THE PRINCIPLE OF CO-OPERATION LAID DOWN IN ARTICLE 5 OF THE TREATY , IT IS THE COURTS OF THE MEMBER STATES WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH SUBJECTS DERIVE FROM THE     DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW . IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE REFUNDING OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY 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 SUBJECTS 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 THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS ARE BOUND TO PROTECT .
26 IT SHOULD BE SPECIFIED IN THIS CONNEXION THAT THE PROTECTION OF RIGHTS GUARANTEED IN THE MATTER BY COMMUNITY LAW DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY MADE TO BE GRANTED IN CONDITIONS WHICH WOULD INVOLVE THE UNJUST ENRICHMENT OF THOSE ENTITLED . THERE IS NOTHING THEREFORE , FROM THE POINT OF VIEW OF COMMUNITY LAW , TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT IN ACCORDANCE WITH THEIR NATIONAL LAW OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO THE PURCHASERS . IT IS EQUALLY COMPATIBLE WITH THE PRINCIPLES OF COMMUNITY LAW FOR COURTS BEFORE WHICH CLAIMS FOR RECOVERY OF REPAYMENTS ARE BROUGHT TO TAKE INTO CONSIDERATION , IN ACCORDANCE WITH THEIR NATIONAL LAW , THE DAMAGE WHICH AN IMPORTER MAY HAVE SUFFERED BECAUSE THE EFFECT OF THE DISCRIMINATORY OR PROTECTIVE TAX PROVISIONS WAS TO RESTRICT THE VOLUME OF IMPORTS FROM OTHER MEMBER STATES .
27 THE REPLY TO THE FOURTH QUESTION SHOULD THEREFORE BE THAT IT IS FOR THE MEMBER STATES TO ENSURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO ARTICLE 95 IN ACCORDANCE WITH THE PROVISIONS OF THEIR INTERNAL LAW SUBJECT TO CONDITIONS WHICH MUST NOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND WHICH IN ANY CASE MUST NOT MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS CONFERRED BY THE COMMUNITY LEGAL SYSTEM : COMMUNITY LAW DOES NOT PREVENT THE FACT THAT THE BURDEN OF THE CHARGES WHICH HAVE BEEN UNLAWFULLY LEVIED MAY HAVE BEEN PASSED ON TO OTHER TRADERS OR TO CONSUMERS FROM BEING TAKEN INTO CONSIDERATION ; LASTLY , IT IS COMPATIBLE WITH THE PRINCIPLES OF COMMUNITY LAW TO TAKE INTO CONSIDERATION , IF APPROPRIATE , IN ACCORDANCE WITH THE NATIONAL LAW OF THE MEMBER STATE CONCERNED , THE DAMAGE SUFFERED BY THE PERSON LIABLE TO PAY THE CHARGES , BY REASON OF THE RESTRICTIVE EFFECT OF THE LATTER ON THE VOLUME OF IMPORTS FROM OTHER MEMBER STATES .