1 This request for a preliminary ruling concerns the interpretation of Article 1(2) of 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).
2 The request has been made in proceedings between Hera Comm SpA, a company supplying electricity, and Falconeri Srl, a customer company, concerning the reimbursement of a tax additional to the excise duty on electricity, provided for by Italian legislation.
3 Directive 2008/118 was repealed by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4).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 Recital 2 of that directive stated: ‘Conditions for charging excise duty on the goods covered by [Council] Directive 92/12/EEC [of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p.1)], hereinafter “excise goods”, need to remain harmonised in order to ensure the proper functioning of the internal market.’
5 Article 1 of the 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”): 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. …’
6 The second paragraph of Article 9 of that directive provided: ‘Excise duty shall be levied and collected and, where appropriate, reimbursed or remitted, according to the procedure laid down by each Member State. Member States shall apply the same procedures to national goods and to those from other Member States.’
7 Under Article 48(1) of Directive 2008/118: ‘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. …’
8 Article 1 of Directive 2003/96 provides: ‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’
9 Article 2(1) of that directive lists the products covered by the concept of ‘energy products’ within the meaning of that directive. Article 2(2) of that directive states that it also applies to electricity falling within CN code 2716.
10 Article 15(1) of Directive 2003/96 states: ‘1. Without prejudice to other Community provisions, Member States may apply under fiscal control total or partial exemptions or reductions in the level of taxation to:
11 Article 2033 of the Codice civile (Civil Code) provides: ‘Anyone who has made a payment which is not due shall be entitled to reclaim the monies paid. In addition, the person concerned shall be entitled to returns and interest from the date of the payment where the person who received the payment was not acting in good faith or, where the recipient acted in good faith, from the date of the legal claim.’
12 In the version applicable to the facts in the main proceedings, decreto-legge n. 511 - Disposizioni urgenti in materia di finanza regionale e locale (Decree-Law No 511 laying down 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/EC 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 (GURI No 68 of 22 March 2007, Ordinary Supplement No 77) (‘Decree-Law No 511/1988’) referred in its preamble to ‘the need, on an exceptional and urgent basis, to secure the resources necessary for the finances of regional and local authorities in order to ensure that their institutional tasks are carried out’.
13 Article 6 of Decree-Law No 511/1988, which was repealed with effect from 1 April 2012, read as follows: ‘1. A tax additional to the excise duty on electricity 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 n. 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 (GURI No 279 of 29 November 1995, Ordinary Supplement No 143) (“Legislative Decree No 504/1995”)] is established in the amount of: … 3. The additional taxes referred to in paragraph 1 shall be payable by the taxable persons referred to in Article 53 of [Legislative Decree No 504/1995] 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. The 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. 5. The provisions of Article 52(3) of [Legislative Decree No 504/1995] shall not apply to the additional taxes referred to in paragraph 1; however, consumption relating to public lighting and the pursuit of electricity production, transmission and distribution activities is exempt from the additional taxes. …’
14 The procedure relating to the claim for reimbursement of excise duty paid but not due is governed by Legislative Decree No 504/1995.
15 Article 14 of that legislative decree, entitled ‘Reimbursement of excise duty’, provides, in paragraph 1: ‘Excise duty shall be reimbursed when it has been unduly paid; the reimbursement rules referred to in this Article shall also apply to claims in respect of relief granted by way of total or partial refund of excise duty paid, or by other means provided for in the rules governing each relief.’
16 Article 16 of that legislative decree, entitled ‘Privilege’, states, in paragraph 3: ‘The claims which persons liable to pay excise duty have against the recipient of the goods in respect of which those persons have paid that tax may be invoiced by way of recovery …’
17 Paragraph 52 of that legislative decree is worded as follows: ‘1. ‘Electrical energy (CN code 2716) is subject to excise duty, at the rates laid down in Annex I, at the time of supply to final consumers or at the time of consumption of the electricity produced by the producer for its own use. … 3. The following is exempt from excise duty:
18 Article 53 of Legislative Decree No 504/1995 provides: ‘1. The following shall be liable to pay excise duty on electricity:
19 Article 60 of that legislative decree provides: ‘The provisions of this Title, with the exception of those of Article 52(3), shall also apply to taxes additional to excise duty on electricity, where the provisions for the implementation thereof are the same as those laid down for excise duty.’
20 Under Article 2(6) of decreto legislativo no 23 - Disposizioni in materia di federalismo Fiscale Municipale (Legislative Decree No 23 laying down provisions on municipal fiscal federalism) of 14 March 2011 (GURI No 67 of 23 March 2011) states that, from 2012, the tax additional to the excise duty on electricity provided for in Article 6(1)(a) and (b) of Decree-Law No 511/1988 ceases to be applied in the regions with ordinary status. The additional tax was definitively repealed with effect from 1 April 2012.
21 Under a contract concluded on 1 October 2009, Hera Comm periodically supplied electricity to Falconeri.
22 Until 1 April 2012, the date on which Article 6 of Decree-Law No 511/1988 was repealed, Hera Comm paid the tax additional to the excise duty on electricity to the Italian Treasury (‘the additional tax’). It passed on the tax thus paid to Falconeri, thereby recovering in full the equivalent of that charge.
23 Taking the view that that tax was contrary to EU law, Falconeri brought an action for recovery of sums paid but not due before the Tribunale di Bologna (District Court, Bologna, Italy), seeking an order that Hera Comm reimburse the amounts paid in that respect.
24 By order of 19 April 2021, the Tribunale di Bologna (District Court, Bologna) upheld the action, finding that Article 6 of Decree-Law No 511/1988 was contrary to Article 1(2) of Directive 2008/118, as interpreted by the settled case-law of the Court, and that, consequently, it had to be disapplied. Since the payments made by Falconeri in respect of the additional tax were therefore without any legal basis, that court ordered Hera Comm to reimburse the corresponding sums, from the expiry of the period for transposing Directive 2008/118 until the repeal of Article 6(1) of Decree-Law No 511/1988.
25 Consequently, Hera Comm paid back the sums paid but not due. However, on 19 May 2021, it brought an appeal against that order before the Corte d’appello di Bologna (Court of Appeal, Bologna), the referring court, claiming that the additional tax was merely an increase in the rate of excise duty on electricity and thus did not constitute an ‘other indirect tax’ within the meaning of Article 1(2) of Directive 2008/118.
26 The referring court asks, in the first place, whether the additional tax must be regarded as a different tax from the excise duty on electricity, since it constitutes only a fraction or a multiple of that excise duty. It states that the excise duty on electricity and the additional tax have a similar structure and rules that partially coincide. In particular, that tax increases the rate of excise duty on electricity and is calculated, established and collected in the same way. In those circumstances, the additional tax could be understood as a mere increase in the rate of excise duty, thus not constituting an ‘other indirect tax’, within the meaning of Article 1(2) of that directive, and it would not be subject to the requirement of being earmarked for specific purposes, as laid down in that provision.
27 By contrast, if they were separate taxes, there could be a contradiction between the rule of domestic law, which introduced the additional tax without earmarking it for specific purposes, and Article 1(2) of Directive 2008/118, which requires such earmarking. Whether it is possible to pass on the payment of that tax to the final customer would thus depend on how that contradiction is resolved.
28 According to the referring court, a literal, contextual and teleological interpretation of Article 1(2) of Directive 2008/118 precludes the excise duty on electricity and the additional tax from being regarded as one and the same indirect tax. That directive does not limit the Member States’ power to impose taxes according to the forms in which it may be exercised, but it limits that power from the point of view of the objectives pursued and the impact which the resulting taxes have on the market.
29 In the second place, the referring court seeks to ascertain whether Article 1(2) of Directive 2008/118 is capable of having a horizontal direct effect in the context of a dispute between private parties, such as that before it. More specifically, it refers to the settled case-law of the Court on the prohibition of horizontal direct effect of directives, which does not, however, expressly make it possible to ascertain whether or not that prohibition extends to the ‘preclusive effect’, which is intended to preclude the application of a rule of domestic law which is contrary to a directive.
30 In that court’s view, according to one line of national case-law, Article 6(1) and (2) of Decree-Law No 511/1988 should be disregarded, irrespective of any direct effect, whether horizontal or vertical, of Article 1(2) of Directive 2008/118, on account of the principle of the immediate applicability of the interpretation of EU law given by the Court under Article 267 TFEU. By contrast, according to another line of case-law, the fact that ‘self-executing’ directives have no effect in horizontal relations would prevent a final consumer from relying on Directive 2008/118 against a supplier and the only remedy available to that consumer would be an action for damages.
31 In the present case, the order at first instance is consistent with the settled case-law of the Corte di Cassazione (Court of Cassation, Italy), according to which the rules governing the reimbursement of the additional tax are compatible with EU law, since, without common rules in that regard, such reimbursement is a matter for the Member States to regulate in accordance with the principles of equivalence and effectiveness. According to that national case-law, the excise duty and the additional tax are two separate taxes. However, it is not possible for that tax to satisfy the condition concerning the pursuit of specific purposes, as required by Article 1(2) of Directive 2008/118, the sole objective pursued by that tax being that of ‘securing the resources necessary for the finances of regional and local authorities in order to ensure that their institutional tasks are carried out’.
32 The referring court also states that Hera Comm is not an undertaking with public participation nor is it entrusted with the task of providing a public service. Accordingly, the legal relationship which it has with its customer in order to pass on the additional tax is horizontal in nature. According to that court, asserting the direct effect of Article 1(2) of Directive 2008/118 in that horizontal relationship would fully ensure the implementation of the principles of equivalence and effectiveness, and would avoid unreasonable discrimination against a customer which would be unable to rely, as against the other party to the contract, on the unlawfulness of the additional tax of which it bore the economic burden, on the ground that that tax is contrary to EU law.
33 In those circumstances the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
34 By its first question, the referring court asks, in essence, whether Article 1(2) of Directive 2008/118 must be interpreted as meaning that a tax additional to excise duty on a product, which constitutes only a fraction or a multiple of the excise duty to which that product is already subject, but the revenue from which is allocated to public authorities other than that to which the excise duty is allocated, and which does not follow the exemption rules applicable to that excise duty, may be regarded as a tax separate from that excise duty and thus fall within the concept of ‘other indirect taxes’ within the meaning of that provision, whereby that tax may be levied by the Member States in so far as it pursues a specific purpose, separate from excise duty.
35 Here, as is apparent from the information provided by the referring court, the excise duty on electricity and the additional tax have a structure and rules that partially coincide, given that the additional tax increases the rate of excise duty and that it is calculated, established and collected in the same way. According to Hera Comm, the additional tax is a mere increase in the excise duty on electricity and not a separate tax. According to the details given by the referring court, the order made at first instance in the dispute in the main proceedings forms part of a line of national case-law according to which the excise duty and the additional tax are regarded as being two separate taxes.
36 As a preliminary point, it must be noted that the nature of a tax, duty or charge must be determined by the Court, under EU law, according to the objective characteristics by which it is levied, irrespective of its classification under national law (judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 45 and the case-law cited).
37 In that regard, it should be noted at the outset that, under Article 1(2) of Directive 2008/118, 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.
38 As regards, in particular, the term ‘other indirect taxes’ within the meaning of that provision, in accordance with the Court’s settled case-law, it refers to indirect taxes which are levied on the consumption of the products listed in Article 1(1) of that directive - other than ‘excise duty’ within the meaning of that provision - and are levied for specific purposes (judgments of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 59, and of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 48).
39 In that regard, first, Article 1(1) of Directive 2008/118 enshrines the principle that that directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of goods such as electricity, by harmonising the conditions for charging excise duty, as stated in recital 2 of that directive.
40 Second, in accordance with Article 2(2) of Directive 2003/96, electricity is subject to the harmonised system of taxation established by that directive.
41 Third, the Court held that the Member States’ discretionary power under Article 1(2) of Directive 2008/118 seeks to take due account of the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies (see, to that effect, judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 48 and the case-law cited).
42 Given that, under Article 1(1) of Directive 2008/118 and Article 2(2) of Directive 2003/96, the taxation of electricity is subject to harmonisation within the European Union, an additional tax which is separate from the excise duty on electricity in so far as it does not constitute a mere increase in the rate can, however, be allowed only if it satisfies the conditions laid down in Article 1(2) of Directive 2008/118.
43 In the first place, as regards the question whether the additional tax at issue in the main proceedings is a separate tax, it is apparent from the order for reference, first, that the taxable amount of that tax was calculated in the same way as that of the excise duty on electricity and, second, that that tax is established, calculated and collected according to the same rules as those applicable to the excise duty. Moreover, the chargeable event for the additional tax was identical to that for excise duty, namely the supply and sale of electricity.
44 That said, first of all, the final recipient of the additional tax was different from that of the excise duty. As the referring court noted, for the same quantity of electricity distributed to final consumers, on the one hand, excise duty had to be paid to the Italian Treasury and, on the other hand, the additional tax was for the benefit of local or regional authorities.
45 Next, Article 6 of Decree-Law No 511/1988 made it possible to differentiate the taxation of electricity according to the use, the place of supply and the quantity consumed. Such differentiating criteria are not applicable to excise duty, since they are not provided for by Directives 2008/118 and 2003/96.
46 Finally, although Article 52(3) of Legislative Decree No 504/1995 provided, in accordance with Directive 2003/96, for certain exemptions from excise duty, taxable persons liable to the additional tax were not entitled to those exemptions.
47 As the Commission stated in its written observations, if that tax had been a mere increase in the rate of excise duty on electricity, it should have been regulated in the same way and subject to the same exemptions as those laid down by the national legislature for the excise duty, in accordance with Directive 2003/96.
48 It follows from the foregoing that the additional tax at issue cannot be regarded as a mere increase in the rate of excise duty on electricity, as a fraction or a multiple thereof, but it may constitute an ‘other indirect tax’ which is levied directly or indirectly on the consumption of electricity covered by Directive 2003/96.
49 In the second place, it must be borne in mind that, if Article 1(2) of Directive 2008/118 essentially allows Member States to levy other indirect taxes on excise goods, that is subject to the twofold condition that the tax is levied for one or more ‘specific purposes’ and that those taxes comply with the EU tax rules applicable to excise duty and 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 (see, to that effect, judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 35).
50 Those two conditions, which are intended to prevent additional indirect taxes from improperly obstructing trade, are cumulative, as is apparent from the very wording of Article 1(2) of that directive (judgment 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 36 and the case-law cited).
51 As regards the first of those conditions, it is clear from the settled case-law of the Court that a ‘specific purpose’ within the meaning of that provision must not be purely budgetary. However, since every tax necessarily pursues a budgetary purpose, that fact alone cannot preclude other taxes from also having a specific purpose, within the meaning of that provision, if the latter is not be rendered meaningless (judgment of 14 March 2024, f6 Cigarettenfabrik, C‑336/22, EU:C:2024:226, paragraph 37 and the case-law cited).
52 In the present case, it is clear from the order for reference that the objective pursued by the additional tax was, as set out is the preamble to Decree-Law No 511/1988, to ‘secure the resources necessary for the finances of regional and local authorities in order to ensure that their institutional tasks are carried out’. Furthermore, the referring court mentions that there is another, hypothetical, objective, namely contributing to the waste disposal service, which is, however, presented by the national legislation as being only a potential objective, and that there is no evidence that it has actually been pursued.
53 The existence of a ‘specific purpose’ within the meaning of Article 1(2) of Directive 2008/118 cannot be established purely by the allocation of revenue from the tax at issue to the financing of general expenditure that is incumbent upon the public authority in a given field. If that were the case, the supposed specific purpose could not be distinguished from a purely budgetary purpose (judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 40).
54 In those circumstances, subject to verification by the referring court, which alone has jurisdiction to establish and assess the facts of the dispute in the main proceedings, it is not apparent from the information in the file before the Court that the additional tax, which appears to pursue only a general objective of supporting the budget of local and regional authorities, satisfies the criteria of having a specific purpose as referred to in Article 1(2) of Directive 2008/118 (see, to that effect, order of 9 November 2021, Agenzia delle dogane e dei monopoli - Ufficio delle dogane di Gaeta, C‑255/20, EU:C:2021:926, paragraphs 38 and 39).
55 As regards the second of the conditions, referred to in paragraph 49 above, the fact that the additional tax is established, calculated and collected according to the same rules as those applicable to the excise duty on electricity supports the conclusion that it was conceived from the outset by the national legislature as a tax which must comply with the EU tax rules applicable to excise duties.
56 In the light of all the foregoing considerations, the answer to the first question is that Article 1(2) of Directive 2008/118 must be interpreted as meaning that a tax additional to excise duty on a product, which constitutes only a fraction or a multiple of the excise duty to which that product is already subject, but the revenue from which is allocated to public authorities other than that to which the excise duty is allocated, and which does not follow the exemption rules applicable to that excise duty, may be regarded as a tax separate from that excise duty and thus fall within the concept of ‘other indirect taxes’ within the meaning of that provision, whereby that tax may be levied by the Member States in so far as it pursues a specific purpose, separate from excise duty.
57 By its second question, the referring court asks, in essence, whether Article 1(2) of Directive 2008/118 may be relied on in a dispute between private parties concerning the reimbursement of a tax paid but not due on the ground that the national provision which introduced that tax is contrary to Article 1(2), with the result that a national court hearing such a dispute is required, solely on the basis of EU law, to disapply that national provision.
58 As a preliminary point, it should be noted that the Court has already ruled on similar questions raised in an identical legal context in the case which gave rise to the judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, (C‑316/22, EU:C:2024:301).
59 In that respect, the Court has noted 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 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 22 and the case-law cited).
60 Accordingly, a national court is not required, solely on the basis of EU law, to disapply a provision of its domestic law which is contrary to a provision of EU law if the latter provision does not have direct effect, without prejudice, however, to the possibility, for that court, or for any competent national administrative authority, to disapply, on the basis of its domestic law, any provision of that law which is contrary to a provision of EU law that does not have such effect (see, to that effect, judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 33).
61 Thus, notwithstanding the absence of horizontal effect of a directive, a national court may allow a private party to rely on the unlawfulness, under a clear, precise and unconditional provision of a directive, of a tax which has been wrongly passed on to it by a supplier, if such a possibility is provided for by national legislation, in order to neutralise the additional economic burden which the private party has ultimately had to bear, which, in the case at issue in the main proceedings, it is for the referring court to determine (judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 25).
62 Moreover, 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 (judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 26 and the case-law cited).
63 The Court, accordingly, found that the third paragraph of Article 288 TFEU precludes 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 (judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 27). In the present case, it will be for the referring court to carry out the necessary checks to determine whether the supplier at issue in the main proceedings falls into one of those categories.
64 In any event, the Court notes that, according to the settled case-law of the Court, Member States are required, in principle, to repay the taxes and charges levied in breach of EU law, the right to a refund of such taxes and charges being the consequence and complement of the rights conferred on private parties by the provisions of EU law prohibiting such taxes and charges (judgment of 20 October 2011, Danfoss and Sauer-Danfoss, C‑94/10, EU:C:2011:674, paragraph 20 and the case-law cited).
65 In that respect, it is important to bear in mind that, 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 burden is to be exercised, it being understood that those conditions must comply with the principles of equivalence and effectiveness (judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 33 and the case-law cited).
66 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 (judgment of 11 April 2024, Gabel Industria Tessile and Canavesi, C‑316/22, EU:C:2024:301, paragraph 34 and the case-law cited).
67 In the light of all the foregoing considerations, the answer to the second question is that EU law must be interpreted as meaning that a national court, hearing a dispute between private parties concerning the reimbursement of a tax paid but not due on the ground that the provisions of national law which introduced that tax are contrary to Article 1(2) of Directive 2008/118, which finds that it is impossible to interpret those provisions of national law in a manner that is consistent with EU law, is not required, solely on the basis of EU law, to disapply those provisions of national law. However, EU law requires that, where it is impossible or excessively difficult to obtain from the supplier reimbursement of the tax paid but not due, the final consumer must be able to direct his or her application for reimbursement to the Member State concerned directly.
68 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. 1. Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC 2. EU law must be interpreted as meaning that a national court, hearing a dispute between private parties concerning the reimbursement of a tax paid but not due on the ground that the provisions of national law which introduced that tax are contrary to Article 1(2) of Directive 2008/118, which finds that it is impossible to interpret those provisions of national law in a manner that is consistent with EU law, is not required, solely on the basis of EU law, to disapply those provisions of national law. However, EU law requires that, where it is impossible or excessively difficult to obtain from the supplier reimbursement of the tax paid but not due, the final consumer must be able to direct his or her application for reimbursement to the Member State concerned directly.