Société Comateb (C-192/95), Société Panigua (C-193/95), Société Edouard et fils (C-194/95), Société de distribution de vins et liqueurs (C-195/95), Etablissements André Haan (C-196/95), Société Diffusion générale de quincaillerie (C-197/95), Société Diffusion générale (C-198/95), Société Cama Renault (C-199/95), Scp Ovide et Dorville (C-200/95), Société Ducros Guadeloupe (C-201/95), Société Comptoir commercial Caraïbes (C-202/95), Société Giafa (C-203/95), Société LVS (C-204/95), Société Catherine et Jean-Claude Tabar Nouval (C-205/95), Société L'Heure et L'Or (C-206/95), Société Général bazar bricolage (C-207/95), Société Grain d'or (C-208/95), Société Cash Service (C-209/95), Etablissements Efira (C-210/95), Société Farandole (C-211/95), Société Carat (C-212/95), Société Rio (C-213/95), Société guadeloupéenne de distribution moderne (SGDM) (C-214/95), Martinique automobiles SA (C-215/95), Socovi SARL (C-216/95), Etablissements Gabriel Vangour et Cie SARL (C-217/95), Simat Guadeloupe SARL (C-218/95) v Directeur général des douanes et droits indirects.
Date: 1997-01-14
11 As the Court observed in a previous judgment (Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 20), that regulation applies, by virtue of Article 1(2) thereof, only to taxes, charges, levies and duties created by various Community provisions and collected by the Member States on behalf of the Community.
20 The first point to note is that entitlement to the repayment of charges levied by a Member State in breach of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting such charges (San Giorgio, cited above, paragraph 12).  The Member State is therefore in principle required to repay charges levied in breach of Community law.
21 There is, however, an exception to that principle.  As the Court stated in Just, Denkavit and San Giorgio, cited above, the protection of the rights so guaranteed by the Community legal order does not require repayment of taxes, charges and duties levied in breach of Community law where it is established that the person required to pay such charges has actually passed them on to other persons (see, in particular, San Giorgio, paragraph 13).
22 In such circumstances, the burden of the charge levied but not due has been borne not by the trader, but by the purchaser to whom the cost has been passed on.  Therefore, to repay the trader the amount of the charge already received from the purchaser would be tantamount to paying him twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the purchaser of the illegality of the charge.
23 It is accordingly for the national courts to determine, in the light of the facts in each case, whether the burden of the charge has been transferred in whole or in part by the trader to other persons and, if so, whether reimbursement to the trader would amount to unjust enrichment.
24 In this respect it should be made clear, first, that if the final consumer is able to obtain reimbursement through the trader of the amount of the charge passed on to him, that trader must in turn be able to obtain reimbursement from the national authorities.  On the other hand, if the final consumer can obtain repayment directly from the national authorities of the amount of the charge which he has paid but which was not due, the question of reimbursing the trader does not, as such, arise.
25 Second, it must be noted that in Bianco and Girard, cited above, paragraph 17, the Court stated that even though in national law indirect taxes are designed to be passed on to the final consumer and even if in commerce they are normally passed on in whole or in part, it cannot be generally assumed that the charge is actually passed on in every case.  The actual passing on of such taxes, either in whole or in part, depends on various factors in each commercial transaction which distinguish it from other transactions in other contexts.  Consequently, the question whether an indirect tax has or has not been passed on in each case is a question of fact to be determined by the national court which may freely assess the evidence. However, in the case of indirect taxes, it may not be assumed that there is a presumption that they have been passed on and that it is for the taxpayer to prove the contrary.
27 Accordingly, a Member State may resist repayment to the trader of a charge levied in breach of Community law only where it is established that the charge has been borne in its entirety by someone other than the trader and that reimbursement of the latter would constitute unjust enrichment.
28 It follows that if the burden of the charge has been passed on only in part, it is for the national authorities to repay the trader the amount not passed on.
29 It should be borne in mind, however, that even where it is established that the burden of the charge has been passed on in whole or in part to the purchaser, repayment to the trader of the amount thus passed on does not necessarily entail his unjust enrichment.
30 In Just, cited above, the Court stated at paragraph 26 that it would be compatible with the principles of Community law for courts before which claims for repayment were brought to take into consideration the damage which an importer might have suffered because the discriminatory or protective tax provisions had the effect of restricting the volume of imports from other Member States.
31 As the Advocate General pointed out in paragraph 23 of his Opinion, the trader may have suffered damage as a result of the very fact that he has passed on the charge levied by the administration in breach of Community law, because the increase in the price of the product brought about by passing on the charge has led to a decrease in sales.  Thus, the levying of dock dues may make the price of products from other parts of the Community significantly higher than the price of local products which are exempt from those dues, with the result that importers suffer damage, regardless of whether the charge has been passed on.
32 In such circumstances, the trader may justly claim that, although the charge has been passed on to the purchaser, the inclusion of that charge in the cost price has, by increasing the price of the goods and reducing sales, caused him damage which excludes, in whole or in part, any unjust enrichment which would otherwise be caused by reimbursement.
34 Furthermore, traders may not be prevented from applying to the courts having jurisdiction, in accordance with the appropriate procedures of national law, and subject to the conditions laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, for reparation of loss caused by the levying of charges not due, irrespective of whether those charges have been passed on.