1 This request for a preliminary ruling concerns the interpretation of the third paragraph of Article 288 TFEU and the principle of effectiveness.
2 The request has been made in the context of two sets of proceedings, which were joined in the main proceedings, between (i) Gabel Industria Tessile SpA and A2A Energia SpA and (ii) Canavesi SpA, of the one part, and Energit SpA and the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy), of the other part, concerning claims for the reimbursement of sums paid by Gabel Industria Tessile and Canavesi, in 2010 and 2011, to A2A Energia and Energit, in respect of an additional tax on electricity excise duties provided for by the Italian legislation.
3 Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) was repealed by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4). However, Directive 2008/118 remains applicable ratione temporis to the facts of the main proceedings.
4 Article 1 of that directive provided: ‘1. This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”): (a) energy products and electricity covered by [Council] Directive 2003/96/EC [of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)]; … 2. Member States may levy other indirect taxes on excise goods for specific purposes, provided that those taxes comply with the Community tax rules applicable for excise duty or value added tax as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions. …’
5 The second paragraph of Article 9 of Directive 2008/118 provided: ‘Excise duty shall be levied and collected and, where appropriate, reimbursed or remitted according to the procedure laid down by each Member State. …’
6 Article 48(1) of that directive was worded as follows: ‘Member States shall adopt and publish, not later than 1 January 2010, the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 April 2010. …’
7 In the version applicable to the facts of the main proceedings and, in any event until 31 March 2012, Article 6 of decreto-legge n. 511 - Disposizioni urgenti in materia di finanza regionale e locale (Decree-Law No 511 on urgent provisions on regional and local finances) of 28 November 1988 (GURI No 280 of 29 November 1988), as amended by Article 5 of decreto legislativo n. 26 - Attuazione della direttiva 2003/96/CE che ristruttura il quadro comunitario per la tassazione dei prodotti energetici e dell’elettricita (Legislative Decree No 26 implementing Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity) of 2 February 2007 (ordinary supplement to GURI No 68 of 22 March 2007) (‘Legislative Decree No 511/1988’), was worded as follows: ‘1. An additional tax on electricity excise duties referred to in Article 52 et seq. of the Consolidated Text of the Legislative Provisions concerning Taxes on Production and Consumption and Criminal and Administrative Penalties in the matter, approved by [decreto legislativo 26 ottobre 1995, n. 504 (Legislative Decree No 504 of 26 October 1995)], (“the Consolidated Text on Excise Duties”), is introduced in the amount of: (a) 18.59 [euros] per 1000 kWh, in favour of municipalities, for any use made in dwellings, excluding second homes and electricity supplies with an available power of up to 3 kW at the user’s registered home, up to a limit of the first 150 kWh of monthly consumption. For consumption exceeding the limit of 150 kWh for contracts of up to 1.5 kW, and exceeding the limit of 220 kWh for contracts of more than 1.5 kW and up to 3 kW, the corresponding additional tax shall be recovered in accordance with the criteria laid down in Chapter I, point 2, of Decision No 15 of 14 December 1993 of the Joint Ministerial Committee for Prices; (b) 20.40 [euros] per 1000 kWh, in favour of local authorities, for any use in second homes; (c) 9.30 [euros] per 1000 kWh, in favour of the provinces, for any use in premises and places other than dwellings, for all contracts, up to a maximum monthly consumption of 200000 kWh. … 3. The additional taxes referred to in paragraph 1 shall be payable by the taxable persons referred to in Article 53 of the Consolidated Text on Excise Duties when the electricity is supplied to final consumers or, in the case of electricity produced or purchased for their own use, when it is consumed. Additional taxes shall be levied and collected in the same way as excise duty on electricity. 4. The additional taxes referred to in paragraph 1 relating to the supply of electricity with an available power not exceeding 200 kW shall be paid directly to the municipalities and provinces in whose territory the users are located. The additional taxes for the supply of electricity with an available power of more than 200 kW and those for the consumption of electricity produced or purchased for own use shall be paid to the Treasury, with the exception of those levied in the Aosta Valley region [Italy] and the autonomous provinces of Trentino [Italy] and Bolzano [Italy], which shall be paid directly to the municipalities and provinces themselves. …’
8 Article 14 of Decreto Legislativo No 504 - Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Legislative Decree No 504 containing the Consolidated Text of the Legislative Provisions concerning Taxes on Production and Consumption and Criminal and Administrative Penalties in the matter) of 26 October 1995 (Ordinary Supplement to GURI No 279 of 29 November 1995) (‘Legislative Decree No 504/1995’) provides: ‘1. Excise duty shall be reimbursed when it has been unduly paid; the reimbursement rules referred to in this Article shall also apply to applications in respect of facilities granted by way of total or partial refund of excise duty paid, or by other means provided for in the rules governing each facility. 2. Without prejudice to the provisions of Article 7(1)(e) and Article 10b(1)(d), reimbursement must be requested within two years of the date of payment or of the date on which the right to reimbursement may be exercised, otherwise the right to reimbursement shall be forfeited. … 4. Where, at the end of court proceedings, the person liable to pay the excise duty is ordered to repay to third parties sums unduly levied by way of the passing on of excise duty, the reimbursement shall be requested by that person within 90 days of the date when the judgment ordering reimbursement of the sums becomes res judicata, otherwise the right to request reimbursement shall be forfeited.’
9 Article 16(3) of that legislative decree states: ‘Claims by persons liable for payment of excise duty and by holders of licences for the operation of commercial warehouses for tax-paid energy products against the persons to whom the products have been sold for which those persons liable for payment have nevertheless paid that tax, may be charged by way of recovery …’
10 Article 53 of that legislative decree provides: ‘1. The following shall be liable to pay excise duty on electricity: (a) entities that bill final consumers for electricity … …’
11 Gabel Industria Tessile and Canavesi are two companies governed by Italian law which have signed contracts with A2A Energia and Energit, respectively, for the supply of electricity to their production sites.
12 In 2010 and 2011, Gabel Industria Tessile and Canavesi paid the amounts due under those contracts, including an additional tax, which was provided for in Article 6 of Decree-Law No 511/1988 and which was added to the excise duty on electricity, before that additional tax was repealed on 1 April 2012.
13 In 2020, they brought proceedings against their suppliers before the Tribunale di Como (District Court, Como, Italy), which is the referring court, seeking reimbursement of the sums paid in respect of that tax, in two civil actions, which that court joined, on the ground that the national provisions introducing that tax were incompatible with EU law.
14 The referring court states that, following the judgment of 25 July 2018, Messer France (C‑103/17, EU:C:2018:587), the Corte suprema di cassazione (Supreme Court of Cassation, Italy) held that the additional tax on electricity excise duties provided for, before that tax was repealed, in Article 6 of Decree-Law No 511/1988, lacked a specific purpose and was, therefore, contrary to Article 1(2) of Directive 2008/118.
15 The referring court notes that the decreto legislativo n. 48 - Attuazione della direttiva 2008/118/CE relativa al regime generale delle accise e che abroga la direttiva 92/12/CEE (Legislative Decree No 48 implementing Directive 2008/118/EC on the general arrangements for excise duty and repealing Directive 92/12/EEC) of 29 March 2010 (GURI No 75 of 31 March 2010) did not amend Article 6 of Decree-Law No 511/1988.
16 The referring court adds that the two disputes before it form part of an ongoing series of litigation concerning the fate of sums unduly paid in the period between the deadline allowed for Member States to comply with Directive 2008/118 and the point when the Italian legislature ordered that the additional tax on electricity excise duties would cease to apply.
17 In that regard, the Italian lower courts have taken two different approaches.
18 According to one line of case-law, which if followed would lead to the rejection of applications for reimbursement of that tax, a court is not permitted, in a dispute between private parties, to disapply a national provision that is incompatible with an EU directive, as this would result in a ‘horizontal direct effect’, which is precluded by the Court of Justice.
19 The second line of case-law, which if followed would lead to such applications being upheld, is based on the obligation to interpret domestic law, once the period for transposition of the relevant directive has expired, in the light of the wording and purpose of that directive with a view to achieving the results sought by it. According to that line of case-law, the result of that obligation would be to recognise that the principle that European directives only have vertical direct effect does not preclude the determination of an undue payment in the horizontal ‘passing on’ relationship, by virtue of the link between that relationship and the tax relationship in respect of which the prohibition laid down by EU law operates directly.
20 In those circumstances the Tribunale di Como (District Court, Como) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) In general, does the system of sources of [EU] law and, specifically, the third paragraph of Article 288 TFEU preclude the disapplication by a national court, in a dispute between private individuals, of a provision of national law that is contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed, thereby imposing an additional obligation on an individual, where that constitutes, according to the national legal system (Article 14(4) of [Legislative Decree] No 504/1995), a prerequisite for the latter to be able to assert against the State the rights conferred on him or her by that directive? (2) Does the principle of effectiveness preclude national legislation (Article 14(4) of [Legislative Decree] No 504/1995) that does not allow a final consumer to seek reimbursement of undue tax directly from the State, but grants him or her only the option of bringing a civil action for recovery against the taxable person, who alone is entitled to obtain reimbursement from the tax authority, where the sole ground for the unlawfulness of the tax - namely the fact that it is contrary to a [Union] directive - can be relied on only in the relationship between the person liable to pay and the tax authority, but not in the relationship between the person liable to pay and the final consumer, thus effectively preventing the application of the reimbursement or, in order to ensure compliance with that principle, should the final consumer be recognised as having direct standing in such a case to bring an action against the Treasury, as a case where it is impossible or excessively difficult to obtain from the supplier a refund of the tax unduly paid?’
21 By its first question, the referring court asks, in essence, whether the third paragraph of Article 288 TFEU must be interpreted as precluding the disapplication by a national court, in a dispute between private parties, of a provision of national law establishing a tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed.
22 In that respect, it should be recalled that, in accordance with the third paragraph of Article 288 TFEU, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to ‘each Member State to which it is addressed’. It follows, according to settled case-law, that a directive cannot, of itself, impose obligations on a private party and cannot therefore be relied upon as such against such a party before a national court (judgment of 22 December 2022, Sambre & Biesme and Commune de Farciennes, C‑383/21 and C‑384/21, EU:C:2022:1022, paragraph 36 and the case-law cited).
23 That being said, it should be recalled, in the first place, that EU law does not preclude a Member State from exercising its power as to the form and methods of achieving the results laid down by that directive by providing, in its national legislation, that, once the period for transposition has expired, the clear, precise and unconditional provisions of a directive which has not been transposed or has been incorrectly transposed become part of its domestic legal order and that, as a result, those provisions may be relied on by one private party against another. In such a situation, the obligation thus imposed on private parties is based not on EU law, but on national law, and therefore does not constitute an obligation additional to those provided for by that law (see, to that effect, judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 32 and the case-law cited).
24 Consequently, while, under EU law, a directive cannot, of itself, impose obligations on a private party and thus be relied on, as such, against that party before a national court, a Member State may, on the other hand, confer on the national courts the power to disapply, on the basis of its domestic law, any provision of national law which is contrary to a provision of EU law that does not have direct effect (see, to that effect, judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 33).
25 Thus, notwithstanding the absence of horizontal effect of a directive, a national court may allow a private party to rely on the unlawfulness of a tax which has been wrongly passed on to it by a supplier, in accordance with an option conferred on the latter by national legislation, in order to neutralise the additional economic burden which the private party has ultimately had to bear, if such a possibility is provided for by national legislation, which, in the case at issue in the main proceedings, it is for the referring court to determine.
26 In the second place, the Court has accepted that provisions of a directive that are unconditional and sufficiently precise may be relied upon by private parties, not only against a Member State and all the organs of its administration, but also against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between private parties (see, to that effect, judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 33 and the case-law cited). In the present case, it will be for the referring court to carry out the necessary checks to determine whether the suppliers concerned fall into one of those categories.
27 In the light of all the foregoing considerations, the answer to the first question is that the third paragraph of Article 288 TFEU must be interpreted as precluding the disapplication by a national court, in a dispute between private parties, of a provision of national law establishing an indirect tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed, unless national law provides otherwise or unless the entity against which that inconsistency of the aforementioned tax is relied upon is subject to the authority or control of the State or possesses special powers beyond those which result from the normal rules applicable to relations between private parties.
28 By its second question, the referring court asks, in essence, whether the principle of effectiveness must be interpreted as precluding national legislation that does not allow a final consumer to seek directly from the State reimbursement of the additional economic burden which that consumer has borne as a result of the passing on by a supplier, in accordance with an option conferred on that supplier by national legislation, of a tax which the latter had unduly paid, but which allows such a consumer to bring only a civil action for recovery of sums paid but not due against such a supplier, where the undue nature of that payment is the consequence of that tax being contrary to a clear, precise and unconditional provision of a directive that has not been transposed, or has been incorrectly transposed, and where, because it is impossible to rely on a directive as such in proceedings between private parties, that ground of unlawfulness cannot validly be relied on in the context of such an action.
29 In that respect, according to the settled case-law of the Court, the Member States are required, in principle, to repay charges levied in breach of EU law, the right to a refund of such charges being the consequence and complement of the rights conferred on private parties by the provisions of EU law prohibiting such charges (judgment of 20 October 2011, Danfoss and Sauer-Danfoss, C‑94/10, EU:C:2011:674, paragraph 20 and the case-law cited).
30 However, by way of exception to the principle of the reimbursement of taxes incompatible with EU law, the reimbursement of duties wrongly levied can be refused where reimbursement would entail unjust enrichment of the persons concerned, that is to say, where it is established that the person required to pay such taxes has actually passed them on directly to another person (see, to that effect, judgment of 20 October 2011, Danfoss and Sauer-Danfoss, C‑94/10, EU:C:2011:674, paragraph 21 and the case-law cited).
31 In such circumstances, the burden of the tax levied but not due has been borne not by the taxable person, but by the final consumer to whom the cost has been passed on. Accordingly, to repay the taxable person the amount of the tax already collected from the final consumer would be tantamount to paying him or her twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the final consumer of the unlawfulness of the tax (see, to that effect, judgment of 20 October 2011, Danfoss and Sauer-Danfoss, C‑94/10, EU:C:2011:674, paragraph 22 and the case-law cited).
32 On the other hand, in that same situation, the Member State concerned should be prevented from deriving a benefit from the infringement of EU law. Thus, where such passing on of tax has been carried out, in accordance with an option which national legislation accords to suppliers, and where, as a result, the final consumer has ultimately unduly borne that additional economic burden, that consumer must have the possibility of obtaining reimbursement of such a tax either directly from that Member State or from the taxable supplier. In the case of the latter, that taxable person must then have the possibility of applying to that same Member State for compensation for the reimbursement which he or she has had to make.
33 That being said, it is important to bear in mind that, in accordance with settled case-law, in the absence of EU rules on the matter, it is for the domestic legal system of each Member State to lay down the precise procedural rules by which that right to obtain reimbursement of that economic tax is to be exercised (see, by analogy, judgment of 15 March 2007, Reemtsma Cigarettenfabriken, C‑35/05, EU:C:2007:167, paragraph 37), it being understood that those conditions must comply with the principles of equivalence and effectiveness (see, to that effect, judgments of 17 June 2004, Recheio - Cash & Carry, C‑30/02, EU:C:2004:373, paragraph 17, and of 6 October 2005, MyTravel, C‑291/03, EU:C:2005:591, paragraph 17).
34 In particular, if such a reimbursement proved impossible or excessively difficult to obtain from the suppliers concerned, the principle of effectiveness would require the final consumer to be able to direct his or her application for reimbursement to the Member State concerned directly (see, to that effect, judgments of 15 March 2007, Reemtsma Cigarettenfabriken, C‑35/05, EU:C:2007:167, paragraph 41, and of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 53).
35 In the present case, it is apparent from the file before the Court that, in accordance with Article 53 of Legislative Decree No 504/1995, the additional tax on electricity excise duties was to be paid by the electricity suppliers, but that the latter then passed it on to the final consumers, in accordance with the option conferred on them by Article 16(3) of Legislative Decree No 504/1995. However, according to the information provided by the referring court, that legislative decree provides that final consumers may not apply directly to the Member State concerned for reimbursement of the additional economic burden which they have thus unduly borne, but must make such an application exclusively to those suppliers.
36 Given that, as is apparent from paragraph 22 above, a provision of a directive that has not been transposed or has been incorrectly transposed, even if it is clear, precise and unconditional, cannot, of itself, impose obligations on a private party additional to the obligations provided for by national legislation and cannot therefore be relied upon as such against such a party, it follows that, in a situation such as that at issue in the main proceedings, it is legally impossible for final consumers to rely, as against electricity suppliers, on the incompatibility of the additional tax on electricity excise duties with the provisions of Directive 2008/118 and, consequently, to obtain reimbursement of the additional economic burden caused by that tax which they have had to bear as a result of the failure of the Italian Republic to transpose that directive correctly.
37 Accordingly, it must be held, in the light of the information provided to the Court concerning the characteristics of the national legislation at issue in the main proceedings and subject to verification by the referring court, that such legislation, by not allowing a final consumer to apply directly to the Member State for reimbursement of the additional economic burden which he or she has borne as a result of the passing on, by a supplier on the basis of an option conferred on it by the national legislation, of a tax which that supplier has itself unduly paid to that Member State, infringes the principle of effectiveness.
38 It follows from all the foregoing that the answer to the second question is that the principle of effectiveness must be interpreted as precluding national legislation that does not allow a final consumer to seek directly from the Member State reimbursement of the additional economic burden which that consumer has borne as a result of the passing on by a supplier, in accordance with an option conferred on that supplier by national legislation, of a tax which the latter had itself unduly paid, but which allows such a consumer to bring only a civil action for recovery of sums paid but not due against such a supplier, where the undue nature of that payment is the consequence of that tax being contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed, and where, because it is impossible to rely on a directive as such in proceedings between private parties, that ground for unlawfulness cannot validly be relied on in the context of such an action.
39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.