1 By order of 18 April 1996, received at the Court Registry on 24 July 1996, the Corte d'Appello di Venezia (Court of Appeal, Venice) referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Community law concerning recovery of sums unduly paid.
2 That question was raised in proceedings between the Italian Ministry of Finance and Spac SpA (hereinafter `Spac') concerning the tassa di concessione governativa (administrative charge) for entering companies on the register of companies (hereinafter `the registration charge').
3 The registration charge was introduced by Decree No 641 of the President of the Republic of 26 October 1972 (GURI No 292 of 11 November 1972, Supplement No 3, hereinafter `Decree No 641/72'). It has, in so far as it applies to the registration of documents recording the incorporation of companies, been the subject of successive amendments regarding its amount and periodicity.
4 The amount of the registration charge was first substantially increased by Decree-Law No 853 of 19 December 1984 (GURI No 347 of 19 December 1984), converted into law by Law No 17 of 17 February 1985 (GURI No 41bis of 17 February 1985), which also provided that from then on the charge would be payable not only upon registration of the document incorporating the company but also on 30 June of each calendar year thereafter. The amount of the charge was then further altered in 1988 and 1989. In 1989 it amounted to LIT 12 million for public limited companies and partnerships limited by shares, LIT 3.5 million for private limited companies and LIT 500 000 for other companies.
5 In its judgment in Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Construzioni [1993] ECR I-1915 (hereinafter `Ponente Carni'), concerning the registration charge, the Court held that Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) was to be interpreted as prohibiting, subject to the derogating provisions of Article 12, an annual charge due in respect of the registration of capital companies even though the product of that charge contributed to financing the department responsible for keeping the register of companies. The Court also held that Article 12 of Directive 69/335 was to be interpreted as meaning that duties paid by way of fees or dues referred to in Article 12(1)(e) might constitute payment collected by way of consideration for transactions required by law in the public interest such as, for example, the registration of capital companies. The amount of such duties, which might vary according to the legal form taken by the company, was to be calculated on the basis of the cost of the transaction, which might be assessed on a flat-rate basis.
6 Following that judgment, the registration charge was reduced to LIT 500 000 for all companies by Decree-Law No 331 of 30 August 1993 (GURI No 203 of 30 August 1993), converted into law by Law No 427 of 29 October 1993 (GURI No 255 of 29 October 1993), and it ceased to be payable annually.
7 According to the order for reference, the Ministry of Finance appealed against a judgment of the Tribunale di Venezia requiring it to refund to Spac the amount of the registration charge paid by the latter on the ground that the charge, as in force until 1993, was contrary to Directive 69/335, as interpreted by the Court in Ponente Carni. In its judgment, the Tribunale di Venezia, taking the view that the 10-year limitation period under the ordinary law was applicable, rejected the objection raised by the Ministry that the action for repayment was inadmissible, being time-barred by virtue of Article 13 of Decree No 641/72. According to that provision, `[t]he taxpayer may request repayment of charges wrongly paid within a period of three years reckoned from the date of payment, failing which his action shall be barred ...'.
8 The Ministry of Finance takes exception to that part of the judgment in particular. It contends, in contrast to Spac, that repayment of the registration charge is a matter covered by Article 13 of Decree No 647/72, which applies to all charges that have, for whatever reason, been paid when not due.
9 In its order for reference, the Corte d'Appello takes the view, referring to the case-law of the Court, that the rights which companies liable for the registration charge derive from Community law would be sufficiently safeguarded if proceedings for the repayment of that charge could be classified as actions for the recovery of sums paid but not due, subject to the 10-year limitation period under the ordinary law. It doubts, on the other hand, whether the position would be the same if the time-limit provided for by Article 13 of Decree No 641/72 applied, since that period is shorter, it is reckoned from the date of the contested payment and it cannot be interrupted.
10 The national court observes, however, that, in judgment No 3458 of 23 February 1996, the Corte Suprema di Cassazione held that repayment of the registration charge fell within the scope of the latter provision, thus accepting by implication that it was compatible with Community law.
11 In those circumstances, the Corte d'Appello di Venezia stayed proceedings pending a preliminary ruling from the Court of Justice on the following question: `In proceedings before an Italian court for reimbursement of charges paid pursuant to provisions of national law which, in view of the interpretation given by the Court of Justice in Joined Cases C-71/91 and C-178/91 Ponente Carni and Another v Amministrazione delle Finanze dello Stato, conflict with Article 10 of Council Directive 69/335/EEC of 17 July 1969, is a provision of national law which, by removing such actions from the scope of the ordinary rules governing actions for the recovery of charges paid but not due, and making them subject to special rules governing the reimbursement of charges paid in error, requires that the right of action be exercised within a time-limit reckoned from the date of payment rather than from the time when the relevant Community directive was properly transposed into national law, compatible with the principles laid down in that directive and adopted in its interpretation, and the general principles of Community law upheld by the Court of Justice in Case C-208/91?' The first part of the question
12 The Commission considers that the first part of the question concerns the interpretation of Italian law and is therefore, as it stands, inadmissible. It therefore suggests that it be recast. The essence of the first part of the question is, in its view, whether Community law precludes national legislation which makes actions for repayment of a charge levied in breach of Directive 69/335 subject to a peremptory time-limit which presupposes the existence both of a power to tax and of a revenue debt owed to the State rather than a limitation period which, under that same legislation, is applicable to cases of objective undue payment deriving from the absence of any such power or debt..
13 By the first part of its question, the national court seeks to ascertain whether Community law precludes 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 of three years, by way of derogation from the ordinary rules governing actions between private individuals for the recovery of sums paid but not due, for which the period allowed is more favourable. The national court is thus asking the Court of Justice to clarify its case-law according to which national detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law must not be less favourable than those governing similar actions under national law (see, in particular, Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989 and Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043).
14 It follows that an answer must be given to the question.
15 Spac considers that the case-law of the Court precludes a Member State from taking actions to secure repayment of the registration charge out of the sphere of the ordinary law governing the recovery of sums paid but not due and subjecting them to less favourable rules such as those laid down by Article 13 of Decree No 641/72. It submits that only the first set of rules can adequately safeguard the right of capital companies to secure repayment of sums paid, though not due, by way of the registration charge.
16 Conversely, in the view of the three Governments which have submitted observations, a Member State is entitled, in fiscal matters, to impose a time-bar different from that applicable under the ordinary law, provided that it applies in the same way to claims for repayment under Community law as to claims under national law, that being the position in this case.
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 Amministrazione delle Finanze dello Stato v 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, in accordance with settled case-law of the Court of Justice, it is for the national 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 that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (Rewe, paragraph 5, Comet, paragraphs 13 and 16, both cited above, and, more recently, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12).
19 As regards the latter principle, the Court has held that it is compatible with Community law to lay down reasonable limitation periods for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the administration concerned (see Rewe, paragraph 5, Comet, paragraphs 17 and 18, and Denkavit Italiana, paragraph 23, all cited above; 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 payments, appears reasonable (see the judgment of today's date in Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951, paragraph 35).
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 repayment to all actions for repayment of charges or dues levied in breach of Community law (Edis, cited above, paragraph 36).
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 (Edis, cited above, paragraph 37).
22 In this case, it should be noted that the time-limit at issue applies not only to repayment of the contested registration charge but also to that of all governmental charges of that kind. Moreover, according to information provided by the Italian Government and not disputed, a similar time-limit also applies to actions for repayment of certain indirect taxes. Nor does it appear from the wording of the provision at issue that it applies only to actions based on Community law. Furthermore, as the Advocate General observed in point 26 of his Opinion in this case and in points 62 to 64 of his Opinion in Edis, it is clear from the case-law of the Corte Suprema di Cassazione that time-limits relating to taxes apply also to actions for repayment of charges or dues levied under laws that have been declared incompatible with the Italian Constitution (Edis, cited above, paragraph 38).
23 The answer to the first part of the question must therefore be that 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 of three years, by way of derogation from the ordinary rules governing actions between private individuals for the recovery of sums paid but not due, for which the period allowed is more favourable, provided that that time-limit applies in the same way to actions based on Community law for repayment of such charges as to those based on national law. The second part of the question
24 By the second part of its question, the national court seeks to ascertain whether Community law prohibits a Member State from resisting actions for repayment of charges in breach of a directive by relying on a time-limit under national law which is reckoned from the date of payment of the charges in question even though, at that date, the directive concerned had not yet been properly transposed into national law.
25 The three Governments which have submitted observations consider, unlike Spac, that this question should be answered in the negative. In their view, Member States are entitled to rely on a national time-limit like the one at issue provided that it meets the conditions laid down in Rewe and Comet, cited above. According to those Governments, the judgment in Emmott, cited above, must be confined to its own particular facts, as indeed the Court confirmed in its judgments in Case C-338/91 Steenhorst-Neerings [1993] ECR I-5475 and Case C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483.
26 Initially, the Commission maintained that Steenhorst-Neerings and Johnson, cited above, concerned social benefits that had been improperly withheld and were not therefore relevant to this case. It thus considered that the ratio of Emmott should be followed in proceedings for repayment of charges levied in breach of Community law, otherwise a defaulting Member State might be allowed to profit from its own non-compliance. However, at the hearing the Commission abandoned that thesis, acknowledging that it had been undermined by the judgment in Case C-188/95 Fantask and Others [1997] ECR I-6783.
27 It is clear from the answer given to the first part of the question that Community law does not in principle 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 of three years.
28 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.
29 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).
30 The Court thus held in Fantask and Others, cited above, that Community law does not prevent a Member State which has not properly transposed Directive 69/335 from resisting actions for repayment of duties levied in breach thereof by relying on a limitation period under domestic law of five years reckoned from the date on which those duties became payable (see also Edis, cited above, paragraph 47).
31 Moreover, having regard to the documents before the Court and the arguments presented at the hearing, it does not appear that the conduct of the Italian authorities, in conjunction with the existence of the contested time-limit, had the effect in this case, as it did in Emmott, of depriving the plaintiff company of any opportunity of enforcing its rights before the national courts.
32 The answer to the second part of the question must therefore be that, in circumstances such as those of the main proceedings, Community law does not prevent a Member State from resisting actions for repayment of charges levied in breach of a directive by relying on a time-limit under national law which is reckoned from the date of payment of the charges in question, even if, at that date, the directive concerned had not yet been properly transposed into national law.