Weber's Wine World Handels-GmbH and Others v Abgabenberufungskommission Wien.
Date: 2003-10-02
86.  The Court has already held that a national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation is incompatible with the Treaty, adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for recovery of taxes which were levied though not due under that legislation (see   Deville  , paragraph 13;   Dilexport  , paragraphs 38 and 39; and Case C-62/00   Marks  & Spencer   [2002] ECR I-6325, paragraph 36).
87.  It is clear from those judgments that a 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 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 (Edis  , cited above, paragraph 24).
93.  The Court has consistently held that individuals are entitled to obtain repayment of charges levied in a Member State in breach of Community provisions.  That right is the consequence and the complement of the rights conferred on individuals by Community provisions as interpreted by the Court.  The Member State in question is therefore required, in principle, to repay charges levied in breach of Community law (see, in particular,   Comateb and Others  , cited above, paragraph 20; Joined Cases C-397/98 and C-410/98   Metallgesellschaft and Others   [2001] ECR I-1727, paragraph 84; and   Marks  & Spencer  , paragraph 30).
94.  According to the case-law, there is only one exception to that obligation to make repayment.  A Member State may resist repayment to the trader of a charge levied though not due only where it is established by the national authorities that the charge has been borne in its entirety by someone other than the taxable person and that reimbursement of the charge would constitute unjust enrichment of the latter.  It follows that, if the burden of the charge has been passed on only in part, the national authorities are required to repay the amount not passed on (see to that effect, in particular,   Comateb and Others  , paragraphs 27 and 28).
95.  As that exception is a restriction on a subjective right derived from the Community legal order, it must be interpreted restrictively, taking account in particular of the fact that passing on a charge to the consumer does not necessarily neutralise the economic effects of the tax on the taxable person.
96.  Thus, at paragraph 17 of   Bianco and Girard  , cited above, the Court held, in particular, that even though indirect taxes are designed in national law to be passed on to the final consumer and in commerce 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 is free to assess the evidence adduced before it.
97.  The Court stated at paragraph 20 of   Bianco and Girard   that it is quite probable, depending on the nature of the market, that the charge has been passed on.  However, the numerous factors which determine commercial strategy vary from one case to another so that it is virtually impossible to determine how they each affect the passing on of the charge.
98.  The Court has also held that, even where it is established that the burden of the charge levied though not due has been passed on in whole or in part to third parties, repayment to the trader of the amount thus passed on does not necessarily entail his unjust enrichment (see   Comateb and Others  , paragraph 29, and Joined Cases C-441/98 and C-442/98   Michaïlidis   [2000] ECR I-7145, paragraph 34).
99.  Even where the charge is wholly incorporated in the price, the taxable person may suffer as a result of a fall in the volume of his sales (see   Comateb and Others  , paragraph 30, and   Michaïlidis  , paragraph 35).
100.  Accordingly, the existence and the degree of unjust enrichment which repayment of a charge which was levied though not due from the aspect of Community law entails for a taxable person can be established only following an economic analysis in which all the relevant circumstances are taken into account.
103.  It has consistently been held that in the absence of Community rules on the recovery of national charges levied though not due, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing such actions for repayment, provided, however, that they are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see, in particular,   Metallgesellschaft and Others  , paragraph 85, and Case C-255/00   Grundig Italiana   [2002] ECR I-8003, paragraph 33).
─ Principle of equivalence
104.  First of all, the principle of equivalence prohibits a Member State from laying down less favourable procedural rules for claims for repayment of a charge contrary to Community law which are based on Community law than those applicable to similar domestic proceedings.
109.  Second, as regards compliance with the principle of effectiveness, it must be borne in mind that, in principle, a trader who has paid a charge levied though not due is entitled to repayment of the amount paid (see, in particular,   Comateb and Others  , paragraph 20) and that the tax authority may refuse to repay such a charge only if repayment entails unjust enrichment of the trader.
110.  It is clear from the case-law of the Court (see, in particular,   San Giorgio  , paragraph 14;   Dilexport  , paragraphs 48, 52 and 54; and   Michaïlidis  , paragraphs 36 and 37) that the authority cannot merely establish that the charge was passed on to third parties and presume from that fact alone, or from the fact that the national legislation requires that the charge be incorporated in the selling price to consumers, that the economic burden which the charge represented for the taxable person is neutralised and that, consequently, repayment would automatically entail unjust enrichment of the trader.
111.  The Court has also consistently held that national rules which place on the taxable person the burden of proving that the charge was not passed on to third parties, which amounts to requiring negative proof, or which establish a presumption that the charge has been passed on to third parties, are not consistent with Community law (see, in particular,   San Giorgio  , paragraph 14;   Dilexport  , paragraph 54; and   Michaïlidis  , paragraphs 36 to 38).
115.  It is true that in the case of a   "self-assessed"   charge, proof that the charge has actually been passed on to third parties cannot be adduced without the cooperation of the taxable person concerned.  In that regard, the tax authorities may demand access to the supporting documents which the taxable person was required to keep under the rules of national law.
116.  It is also for the national court to determine to what extent the cooperation required on the part of taxable persons in establishing that the economic burden of the duty on alcoholic beverages was not passed on amounts in practice to establishing a presumption that the duty was passed on, unless the taxable persons rebut such a presumption by adducing evidence to the contrary.