Amministrazione dell’Economia e delle Finanze and Agenzia delle entrate v Fallimento Olimpiclub Srl.
Date: 2009-09-03
22. In that connection, attention should be drawn to the importance, both for the Community legal order and for the national legal systems, of the principle of res judicata . In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that regard can no longer be called into question (Case C‑224/01 Köbler [2003] ECR I-10239, paragraph 38, and Case C‑234/04 Kapferer  [2006] ECR I-2585, paragraph 20).
23. Accordingly, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of Community law on the part of the decision in question (see Kapferer , paragraph 21).
24. In the absence of Community legislation in this area, the rules implementing the principle of res judicata  are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness) (see, to that effect, Kapferer , paragraph 22).
25. The above analysis cannot be called into question by Lucchini . That judgment concerned a highly specific situation, in which the matters at issue were principles governing the division of powers between the Member States and the Community in the area of State aid, the Commission of the European Communities having exclusive competence to assess the compatibility with the common market of a national State aid measure (see, to that effect, Lucchini , paragraphs 52 and 62). Issues of that nature, relating to the division of powers, do not arise in the present case.
26. Here the question is more specifically whether it is compatible with the principle of effectiveness to interpret res judicata  in the manner referred to by the national court, that is to say, as meaning that, in tax disputes, where a final judgment in a given case concerns a fundamental issue common to other cases, it has binding authority as regards that issue, even if its findings were made in relation to a different tax period.
27. In that connection, it should be borne in mind that the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 14).
28. It is therefore necessary to determine, specifically, whether the abovementioned interpretation of Article 2909 of the Italian Civil Code may be justified with a view to protecting the principle of legal certainty, in the light of its implications for the application of Community law.
29. It should be noted that – as the national court itself points out – not only does the interpretation in question prevent a judicial decision that has acquired the force of res judicata  from being called into question, even if that decision entails a breach of Community law; it also prevents any finding on a fundamental issue common to other cases, contained in a judicial decision which has acquired the force of res judicata , from being called into question in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year.
30. Accordingly, if the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an interpretation of the Community rules concerning abusive practice in the field of VAT which was at odds with Community law, those rules would continue to be misapplied for each new tax year, without it being possible to rectify the interpretation.
31. In those circumstances, it must be held that such extensive obstacles to the effective application of the Community rules on VAT cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness.