Amministrazione delle Finanze dello Stato v SpA San Giorgio.
Date: 1983-11-09
8 ON THIS POINT THE COURT NEED ONLY REFER TO THE PREVIOUS CASES IN WHICH IT HAS CONSISTENTLY HELD THAT EVERY COURT OR TRIBUNAL OF A MEMBER STATE IS ENTITLED TO REQUEST A PRELIMINARY RULING UNDER ARTICLE 177 , REGARDLESS MOREOVER OF THE STAGE REACHED IN THE PROCEEDINGS PENDING BEFORE IT AND REGARDLESS OF THE NATURE OF THE DECISION WHICH IT IS CALLED UPON TO GIVE . ( SEE IN PARTICULAR : CASE 43/71 , POLITI V MINISTRY FOR FINANCE , ( 1971 ) ECR 1039 ; CASE 162/73 , BIRRA DREHER V AMMINISTRAZIONE DELLE FINANZE DELLO STATO , ( 1974 ) ECR 201 ; AND CASE 70/77 , SIMMENTHAL V AMMINISTRAZIONE DELLE FINANZE DELLO STATO , ( 1978 ) ECR 1453 ).
12 IN THAT CONNECTION IT MUST BE POINTED OUT IN THE FIRST PLACE THAT ENTITLEMENT TO THE REPAYMENT OF CHARGES LEVIED BY A MEMBER STATE CONTRARY TO THE RULES OF COMMUNITY LAW IS A CONSEQUENCE OF , AND AN ADJUNCT TO , THE RIGHTS CONFERRED ON INDIVIDUALS BY THE COMMUNITY PROVISIONS PROHIBITING CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES OR , AS THE CASE MAY BE , THE DISCRIMINATORY APPLICATION OF INTERNAL TAXES . WHILST IT IS TRUE THAT REPAYMENT MAY BE SOUGHT ONLY WITHIN THE FRAMEWORK OF THE CONDITIONS AS TO BOTH SUBSTANCE AND FORM , LAID DOWN BY THE VARIOUS NATIONAL LAWS APPLICABLE THERETO , THE FACT NEVERTHELESS REMAINS , AS THE COURT HAS CONSISTENTLY HELD , THAT THOSE CONDITIONS MAY NOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR CLAIMS REGARDING NATIONAL CHARGES AND THEY MAY NOT BE SO FRAMED AS TO RENDER VIRTUALLY IMPOSSIBLE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW . ( SEE THE FOLLOWING JUDGMENTS OF THE COURT : CASE 33/76 , REWE V LANDWIRTSCHAFTSKAMMER FUR DAS SAARLAND , ( 1976 ) ECR 1989 ; CASE 45/76 , COMET V PRODUKTSCHAP VOOR SIERGEWASSEN , ( 1976 ) ECR 2043 ; CASE 68/79 , JUST V MINISTRY FOR FISCAL AFFAIRS , ( 1980 ) ECR 501 ; CASE 61/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V DENKAVIT ITALIANA , ( 1980 ) ECR 1205 ; CASE 811/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V ARIETE , ( 1980 ) ECR 2545 , AND CASE 826/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V MIRECO , ( 1980 ) ECR 2559 , THE LAST THREE OF WHICH WERE CITED BY THE NATIONAL COURT ).
13 HOWEVER , AS THE COURT HAS ALSO RECOGNIZED IN PREVIOUS DECISIONS , AND IN PARTICULAR IN THE AFORESAID JUDGMENT IN JUST V MINISTRY FOR FISCAL AFFAIRS , COMMUNITY LAW DOES NOT PREVENT A NATIONAL LEGAL SYSTEM FROM DISALLOWING THE REPAYMENT OF CHARGES WHICH HAVE BEEN UNDULY LEVIED WHERE TO DO SO WOULD ENTAIL UNJUST ENRICHMENT OF THE RECIPIENTS . THERE IS NOTHING IN     COMMUNITY LAW THEREFORE TO PREVENT COURTS FROM TAKING ACCOUNT , UNDER THEIR NATIONAL LAW , OF THE FACT THAT THE UNDULY LEVIED CHARGES HAVE BEEN INCORPORATED IN THE PRICE OF THE GOODS AND THUS PASSED ON TO THE PURCHASERS . THUS NATIONAL LEGISLATIVE PROVISIONS WHICH PREVENT THE REIMBURSEMENT OF TAXES , CHARGES , AND DUTIES LEVIED IN BREACH OF COMMUNITY LAW CANNOT BE REGARDED AS CONTRARY TO COMMUNITY LAW WHERE IT IS ESTABLISHED THAT THE PERSON REQUIRED TO PAY SUCH CHARGES HAS ACTUALLY PASSED THEM ON TO OTHER PERSONS .
14 ON THE OTHER HAND , ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW WOULD BE INCOMPATIBLE WITH COMMUNITY LAW . THAT IS SO PARTICULARLY IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE UPON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE CHARGES UNDULY PAID HAVE NOT BEEN PASSED ON TO OTHER PERSONS OR OF SPECIAL LIMITATIONS CONCERNING THE FORM OF THE EVIDENCE TO BE ADDUCED , SUCH AS THE EXCLUSION OF ANY KIND OF EVIDENCE OTHER THAN DOCUMENTARY EVIDENCE . ONCE IT IS ESTABLISHED THAT THE LEVYING OF THE CHARGE IS INCOMPATIBLE WITH COMMUNITY LAW , THE COURT MUST BE FREE TO DECIDE WHETHER OR NOT THE BURDEN OF THE CHARGE HAS BEEN PASSED ON , WHOLLY OR IN PART , TO OTHER PERSONS .
15 IN A MARKET ECONOMY BASED ON FREEDOM OF COMPETITION , THE QUESTION WHETHER , AND IF SO TO WHAT EXTENT , A FISCAL CHARGE IMPOSED ON AN IMPORTER HAS ACTUALLY BEEN PASSED ON IN SUBSEQUENT TRANSACTIONS INVOLVES A DEGREE OF UNCERTAINTY FOR WHICH THE PERSON OBLIGED TO PAY A CHARGE CONTRARY TO COMMUNITY LAW CANNOT BE SYSTEMATICALLY HELD RESPONSIBLE .
18 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT A MEMBER STATE CANNOT MAKE THE REPAYMENT OF NATIONAL CHARGES LEVIED CONTRARY TO THE REQUIREMENTS OF COMMUNITY LAW CONDITIONAL UPON THE PRODUCTION OF PROOF THAT THOSE CHARGES HAVE NOT BEEN PASSED ON TO OTHER PERSONS IF THE REPAYMENT IS SUBJECT TO RULES OF EVIDENCE WHICH RENDER THE EXERCISE OF THAT RIGHT VIRTUALLY IMPOSSIBLE , EVEN WHERE THE REPAYMENT OF OTHER TAXES , CHARGES OR DUTIES LEVIED IN BREACH OF NATIONAL LAW IS SUBJECT TO THE SAME RESTRICTIVE CONDITIONS .

THE SECOND QUESTION
20 THE ATTENTION OF THE NATIONAL COURT SHOULD BE DRAWN TO THE FACT THAT THAT REGULATION , WHICH DEALS WITH THE REPAYMENT OR REMISSION OF UNDULY LEVIED     IMPORT OR EXPORT DUTIES , 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 . THEREFORE THAT REGULATION DOES NOT APPLY TO ANY NATIONAL TAXES , CHARGES AND DUTIES WHICH MAY BE LEVIED CONTRARY TO COMMUNITY LAW .