Aprile Srl, in liquidation, v Amministrazione delle Finanze dello Stato.
Date: 1998-11-17
6 By judgment of 5 October 1995 in Case C-125/94 Aprile v Amministrazione delle Finanze dello Stato [1995] ECR I-2919, hereinafter `Aprile I') the Court held, first, that Directive 83/643, as amended by Directive 87/53, was not applicable to customs formalities in respect of goods from non-member countries, and, second, that the Member States were not entitled unilaterally to impose charges having equivalent effect in trade with those countries.
11 In that regard it need only be pointed out that it is for the national court to assess the scope of the national provisions and the manner in which they must be applied (see, in particular, the judgment in Case C-45/94 Ayuntamiento de Ceuta [1995] ECR I-4385, paragraph 26). Since the national court is best placed to assess, in view of the particularities of the case, the need for a preliminary ruling in order to give its judgment, the preliminary questions cannot be regarded as inadmissible for reasons relating to a certain interpretation of the provisions at issue (see, by analogy, Case C-194/94 CIA Security International v Signalson and Securitel [1996] ECR I-2201, paragraph 20).
17 As the Court has held on several occasions, a comparison of the national systems shows 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 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.  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 claims for the refunding of sums paid but not owed, such actions being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraphs 22 and 23, Case 61/79 Denkavit Italiana [1980] ECR 1205, paragraphs 23 and 24, Case 811/79 Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545, paragraphs 10 and 11, and Case 826/79 Amministrazione delle Finanze dello Stato v Mireco [1980] ECR 2559, paragraphs 11 and 12).
18 This diversity between national systems derives mainly from the lack of Community rules on the refunding 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, Edis, cited above, paragraphs 19 and 34, and Case C-260/96 SPAC v Ministero delle Finanze [1998] ECR I-4997, paragraph 18).
19 As regards the latter principle, the Court has held 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 (Case 33/76 Rewe v Landwirtschafskammer Saarland, cited above, paragraph 5, and Case 45/76 Comet v Produktschap voor Siergewassen, cited above, paragraphs 17 and 18; Denkavit Italiana, cited above, 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 (see Edis and SPAC, cited above, paragraphs 35 and 19 respectively).
20 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 recovery under national law to all actions for repayment of charges or dues levied in breach of Community law (see Edis and SPAC, cited above, paragraphs 36 and 20 respectively).
21 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 (see Edis and SPAC, cited above, paragraphs 37 and 21 respectively).
22 In this case, it must be noted that the time-limit at issue expressly applies to all claims and proceedings for the reimbursement of sums paid in respect of customs operations.  Moreover, according to the Italian Government, whose statement to that effect has not been contradicted, a similar time-limit applies to actions for the repayment of a number of indirect levies.  Thus, as the Advocate General observed in point 31 of his Opinion, that time-limit thus applies without distinction to all actions for recovery of charges of that kind, whatever their basis, and cannot therefore be regarded as contrary to the principle of equivalence.
23 The Commission, however, has stated, referring to its observations in Edis, cited above, that the provision at issue prompted the Corte Suprema di Cassazione to depart from its earlier case-law in that hitherto it had restricted the application of time-limits such as the one at issue to cases of errors in the calculation of taxes. By making repayment of the sums paid subject to the three-year time-limit laid down in Article 29 of Decree-Law No 428/1990 rather than the 10-year limitation period under the ordinary law, that provision, as interpreted by the Corte Suprema di Cassazione, specifically curtailed the opportunity for the persons concerned to bring proceedings to secure repayment of charges levied in breach of Community law, thereby disregarding the judgments in Case 309/85 Barra v Belgium and Another [1988] ECR 355 and Deville, cited above.
24 It should be noted that in paragraph 19 of Barra, cited above, 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 the delivery of that 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.
26 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.
28 In the first place, the provision at issue, although significantly reducing the period within which reimbursement of sums paid but not due may be claimed, 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.
29 Next, the time-limit at issue is applicable not solely to a particular kind of charge which has previously been declared incompatible with Community law but to a whole range of internal charges and taxes for which the legislation has standardised the rules on time-limits and limitation periods.
30 Finally, the adoption of the contested Law, although subsequent to the judgment of 30 May 1989 in Commission v Italy, cited above, preceded the judgment of 21 March 1991 in Commission v Italy, cited above, and the judgment in Aprile I.
31 In view of those factors, the legislation at issue cannot be regarded as a measure intended to limit specifically the consequences of the Court's findings in the abovementioned judgments.  In that regard, it is important, as observed in paragraph 22 of this judgment, to note in particular that the provision at issue relates to all claims and proceedings for the repayment of sums paid in relation to customs operations, whatever the grounds on which reimbursement is claimed, and that it sets a time-limit similar to that already laid down for various taxes.
32 Moreover, the findings made in the judgment of 30 May 1989 in Commission v Italy, cited above, the only judgment delivered before the adoption of that provision, related very specifically to the imposition on traders, in respect of intra-Community trade, of the cost of inspections and administrative formalities carried out during part of the normal business hours of customs offices at frontier posts. However, as is clear from paragraph 19 of the judgment in Aprile I, it is common ground that some of the goods imported by Aprile and affected by the charges of which Aprile seeks reimbursement originated in non-member countries.  Moreover, as the Advocate General stated in point 19 of his Opinion preceding that judgment, it was made clear in the main proceedings that they were specifically concerned with charges for customs services provided outside normal business hours.
33 It follows that the solution adopted in Barra and Deville, cited above, is not applicable to this case.
40 It is true that in paragraph 23 of Emmott, cited above, the Court held that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred on him by the provisions of a directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
41 However, as was confirmed by the Court in paragraph 26 of Johnson, cited above, it is clear from the judgment in Steenhorst-Neerings, cited above, that the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the plaintiff in the main proceedings of any opportunity whatever to rely on her right to equal treatment under a Community directive (see also Haahr Petroleum, cited above, paragraph 52, and Joined Cases C-114/95 and C-115/95 Texaco and Olieselskabet Danmark [1997] ECR I-4263, paragraph 48).
43 In this case, it does not appear from the documents before the Court and the arguments presented at the hearing that the conduct of the Italian authorities, in conjunction with the existence of the contested time-limit, had the effect, as it did in Emmott, of depriving the plaintiff company of any opportunity of enforcing its rights before the national courts.
44 Moreover, it is clear from the case-law of the Court (Haahr Petroleum, cited above, paragraph 53, and Texaco and Olieselskabet Danmark, cited above, paragraph 49) that the solution adopted in Emmott is not applicable to claims for repayment not based on the direct effect of a directive. Even though the Court, in Aprile I, gave a ruling as to the scope of Directive 87/53, it is clear from the documents now before the Court that the incompatibility of the charges at issue with Community law derives not from a failure to implement, or incorrect transposition of, that directive but from infringement of the provisions of the Treaty or of other directly applicable Community instruments.
45 The answer to the third and fourth questions must therefore be that, in circumstances such as those of the main proceedings, Community law does not prohibit a Member State from resisting actions for repayment of charges levied in breach of Community law by relying on a time-limit under national law even if that Member State has not yet amended its national rules in order to render them compatible with those provisions.