C-811/79

ARIETE S . P A . , Rome,

on the interpretation of Articles 12 et seq. and 85 et seq. of the EEC Treaty,

T H E COURT (Third Chamber)

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges,

Advocate General : J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

I — Facts and w r i t t e n p r o c e d u r e On the other hand it maintained its point of view that it was not bound to repay the health inspection charges even when, during the proceedings, the Italian Law Between. 1 July 1968 and 26 February No 889 of 14 November 1977 abolished 1972 Ariete S.p.A. imported into Italy those charges in so far as concerned from France considerable quantities of products subject to the common organ- milk in bulk for which it was required to ization of the agricultural markets and pay a total of Lit. 787 890 by way of after the Corte Costituzionale by statistical charges provided for in Article Judgment No 163/77 of 20 to 29 42 et seq. of the introductory provisions December 1977 (Giur. Costituz. 1977, I, of the Italian customs duties tariff 1524) had on the one hand declared Law approved by Decree of the President of No 1239/70 of 30 December 1970 on the Italian Republic No 723 of 26 June health inspection charges to be 1965, as also the sum of Lit. 51 153 600 unconstitutional in so far as it applied to by way of health inspection charges products referred to in Regulations Nos provided for in Law No 30 of 23 804 and 805/68 on the common organ- January 1968 and Law No 1239 of 30 ization of the markets in milk and beef December 1970. On 1 August 1972 and veal (Official Journal, English Ariete S.p.A. brought an action against Special Edition 1968 (I), p. 176 and p. the Amministrazione delle Finanze dello 187) and on the other hand had held Stato in the Tribunale di Torino [Turin that Law No 30/1968 of 23 January Court] seeking repayments of the said 1968 had by implication been partially sums and alleging that they were repealed by the said Regulations Nos incompatible with Community law. 804 and 805/68. The Amministrazione alleges in this respect that repayments of charges levied on the basis of national law declared incompatible with Com- During the proceedings the Am- munity law, far from removing the ministrazione declared itself ready to disturbance already caused to free repay the statistical charges in movement of goods by the unwarranted compliance with Law No 447 of 24 June levying of those charges would give rise 1971 which abolished such charges and to fresh disequilibrium incompatible with in accordance with the principles laid the aims pursued by the Community down in Judgment No 183/73 of 18 to legal order and in particular in relation

1. Ariete S.p.A., the respondent to the "Is the repayment of sums levied by a appeal, confines itself to drawing the Member State on a private importer by attention of the Court to the fact that a way of certain import charges compatible similar question has been put by the with the rules of Community law Italian Corte di Cassazione to the Court concerned with the implementation of a by Order No 506/79 of 5 to 28 system of free competition within the November 1979 and is the subject of EEC, where the original payment was Case 826/79. It refers to the observations made before the charges were held, submitted by the private party in that pursuant to the direct applicability of case. Community law prohibiting the levying of charges having an effect equivalent to customs duties, to be charges having the effect of customs duties and 2. The Italian Government also confines consequently unlawful?" itself to referring to the observations which it lodged in the aforesaid Case 826/79. The order making the reference was lodged at the Court Registry on 10 December 1979. 3. The Commission observes in the first place that "there was no justification for the charges levied". It refers in particular Written observations pursuant to Article to the judgments of 14 December 1972 20 of the Protocol on the Statute of the in Case 29/72 S.p.A. Marimex [1972] Court of Justice of the EEC were lodged ECR 1309 and 19 June 1973 in Case by the respondent to the appeal, 77/72 Capolongo, [1973] ECR 611, and represented for such purposes by N. to the Italian domestic measures and Catalano, of the Rome Bar, by the judgments referred to in the order Italian Government, represented for such making the reference. purposes by A. Marzano, Avvocato dello Stato, and by the Commission of the European Communities, represented for As to the arguments of the such purposes by S. Fabro, a member of Amministrazione to the effect that the Legal Department, acting as Agent. repayment of charges levied on the basis of a national provision contrary to Community law rather than eliminating On hearing the report of the Judge- disturbances already produced would Rapporteur and the views of the create fresh economic disequilibrium so

disregarding the aims pursued by the owed is "automatic in all Member States Community legal order and that such save Denmark". It follows that the repayment would mean inflated and obligation to reimburse charges wrongly unexpected profit to the traders levied is automatic save in exceptional concerned, the Commission contends cases (which the present is not) where that appreciation of such arguments equity imposes an obligation to place would require thorough economic limits on reimbursement. analysis. Since no study of that kind has been completed or even started, it must be concluded that the arguments are purely theoretical without any connexion with economic reality. The disequilibria which the repayment of the charges wrongly levied might cause in Community trade are purely hypothetical and impossible to quantify so that they As to the fact that the duties in question cannot be taken into account. were levied before they were declared unlawful, the Commission points out that according to the established case-law of the Court of Justice Article 13 (2), providing for the abolition of charges having equivalent effect, is directly applicable as from the end of the As to the fact that the burden of the transitional period. Further, since it charge has been passed on to their relates to the agricultural sector where buyers by the undertakings who have on the occasion of the establishment of discharged it, that is a purely economic the various organizations of the market matter which is certainly not peculiar to the regulations in the matter have the present case. The economic situation, provided pursuant to Article 43 of the whatever it may be, cannot influence the Treaty for the abolition of charges answer to the problem of law raised by having equivalent effect during the the obligation to repay charges levied transitional period, the prohibition on contrary to Community law. All other levying charges having equivalent effect considerations are subsidiary. In any case has for the present purposes its origin in the national court has sole jurisdiction to Article 22 of Regulation No 804/68 decide any question of unlawful which took effect from 29 July 1968. enrichment of the undertaking which obtains repayment and that court can consider the question only in the light of municipal law since there is no such rule known to Community law.

court must seek in municipal law for the system of free competition within the means enabling it to apply Community EEC". law most effectively. It proposes that the question put to the Court of Justice should be answered as follows: III — Oral procedure "The Community provisions and in particular Article 22 of Regulation (EEC) No 804/68 mean that parties At the sitting held on 5 June 1980 the have the right to obtain repayment of respondent in the main action, sums wrongly levied as charges having represented by N. Catalano of the Rome an effect equivalent to customs duties (in Bar, the Commission of the European the present case statistical charges and Communities, represented by Mr Fabro, health inspection charges) from the time a member of its Legal Department, when such charges were abolished as a acting as Agent, and the Italian result of the entry into force of the Government, represented by I. M. aforesaid regulation (29 July 1968). Braguglia, Avvocato dello Stato, acting as Agent, submitted oral argument. Repayment of such sums to those who have paid them is not incompatible with The Advocate General delivered his Community provisions for achieving a opinion at the same sitting.

Decision

1 By order dated 9 November 1979, received at the Registry of the Court of Justice on 10 December 1979, the Corte d'Appello, Turin, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty the following question on the interpretation of Community law:

"Is the repayment of sums levied by a Member State on a private importer by way of certain import charges compatible with the rules of Community law concerned with the implementation of a system of free competition within the EEC, where the original payment was made before the charges were held, pursuant to the direct applicability of Community law prohibiting the levying of charges having an effect equivalent to customs duties, to be charges having the effect of customs duties and consequently unlawful?"

4 It appears from the order making the reference that the question put to the Court concerns in particular the case of charges having an effect equivalent to customs duties which were paid voluntarily without reservation for a long period by the traders concerned on the assumption common to them and to the national authorities that they were not open to criticism from the point of view of their compatibility with Community law. The incompatibility became apparent only gradually at a later date as a result of the interpret- ation given by the Court of Justice to the concept of charge having an effect equivalent to customs duties, which led the Court for the first time to classify statistical charges in that way in its judgment of 1 July 1969 (Case 24/68 Commission v Italian Republic [1969] ECR 193) and to classify health inspection charges similarly in its judgment of 14 December 1972 (Case 29/72 Marimex vItalian Finance Administration [1972] ECR 1309).

5 According to the established case-law of the Court the prohibition on the levying of charges having an effect equivalent to customs duties, whether it has its origin in the general rule contained in Article 13 of the Treaty with effect from 1 January 1970, at the end of the transitional period, or in the special provision of Article 12 of Regulation No 13/64 with effect, as regards the products referred to by the regulation, from 1 November 1964, has a direct effect in the relations between the Member States and their

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ARIETE

subjects throughout the Community as from the date provided for the implementation of the provisions in question. As the Court stated in its judgment of 9 March 1978 in Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal S.pA. [1978] ECR 629, at p. 643, rules of Community law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force.

JUDGMENT OF 10. 7. 1980 — CASE 811/79

9 It is necessary, however, to observe that where the consequence of a rule of Community law is to prohibit, on the dates and with the effects described above, the levying of national charges or dues, the safeguard of the rights conferred upon subjects by the direct effect of such a prohibition does not necessarily require a uniform rule common to the Member States relating to the formal and substantive conditions to which the contesting or recovery of those very diverse national charges is subject.

10 A comparison of the national systems shows that the problem of disputing charges which have been unlawfully claimed or the refunding of charges paid but not owed 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.

1 1 In other cases, claims for repayment of charges which were paid but not owed must be brought before the ordinary courts, mainly in the form of claims for the recovery of overpayments. Such actions are available for varying lengths of time, in some cases for the limitation period laid down under the general law, with the result that Member States involved may be faced with an accumulation of claims for a considerable amount where certain national tax provisions have been found to be incompatible with the requirements of Community law.

15 Those provisions have basically been given specific form on the one hand in the rules applying to undertakings (Articles 85 to 90 of the EEC Treaty) and on the other hand in those on aids granted by States (Articles 90 to 94 of the EEC Treaty). The first cannot apply in the relations between undertakings and the revenue authorities of the Member States when the revenue exercises its power to create new taxes. As regards the latter rules, the Court ruled in its judgment of 27 March 1980 in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana S.r.l. [1980] ECR at paragraph 32 that the duty of the authorities of a Member State to repay to tax-payers who apply for such repayment charges or dues which were not payable because they were incompatible with Community law, does not constitute an aid within the meaning of Article 92 of the EEC Treaty.

16 It is necessary to point out in addition that all the traders in each Member State who have paid national taxes which were not owed because they were incompatible with Community law are on an equal footing as regards their opportunity for claiming their rights so that there can be no question in the

JUDGMENT OF 10. 7. 1980 — CASE 811/79

matter of distorting competition. On the other hand it is true that those opportunities differ from one Member State to the other in accordance ¡with the different national laws. Such differences, especially in rules relating to challenging national levies, cannot be regarded as discriminatory or, a fortiori, as likely to distort competition where, as stated above, the national law is applied in a non-discriminatory manner as compared with proceedings aimed at settling cases of the same kind but of a purely national character and where the procedural conditions do not make it impossible in practice to exercise the rights given by Community law.

T H E COURT (Third Chamber),

in answer to the questions referred to it by the Corte d'Appello, Turin, by order of 9 November 1979, hereby rules:

It is for the legal order of each Member State to lay down the conditions in which taxpayers may contest taxation wrongly levied because of its incompatibility with Community law or claim repayment thereof, provided that those conditions are no less favourable than the conditions relating to similar applications of a domestic nature and that they do not make it impossible in practice to exercise the rights conferred by the Community legal order.

There is nothing from the point of view of Community law to prevent national courts from taking account, in accordance with their national law, of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to purchasers.

The bringing of such actions for the recovery of such sums is not contrary to the provisions of Community law on the establishment of a system ensuring that competition is not distorted in the Common Market.

Kutscher Mertens de Wilmars Mackenzie Stuart