C-826/79

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v MIRECO

nothing from the point of view of govern in the various Member States Community law to prevent national matters of form and substance in courts from taking account, in relation to recovering national taxes accordance with their national law, of which have been paid in contra- the fact that it has been possible for vention of Community law cannot be charges unduly levied to be incor- regarded as incompatible either with porated in the prices of the under- Articles 9, 12, 13, 92, 93 and 95 of taking liable for the charge and to be the EEC Treaty or, in a more general passed on to purchasers. way, with the principles of Community law relating to the free 5. The system of protection which movement of goods, the establishment subjects have as a result of the direct of a system ensuring that competition effect of the provisions of Community within the Common Market is not law in conjunction with the special distorted or the prohibition of features of national laws which discrimination in tax matters.

In Case 826/79

REFERENCE to the Court under Article 177 of the EEC Treaty by the Italian Corte Suprema di Cassazione [Supreme Court of Cassation] for a preliminary ruling in the proceedings pending before that court between

AMMINISTRAZIONE DELLE FINANZE DELLO STATO [State Finance Administration]

and

gives the following

JUDGMENT

Facts and Issues

The facts and the observations submitted by the person who had paid them to a during the written procedure may be third party purchasing the imported summarized as follows: goods.

The Amministrazione appealed to the I — Facts and written p r o c e d u r e Corte di Cassazione and claimed in particular that the recovery of sums paid By a judgment of 11 October 1978 the but not owed (condictio indebiti) in Corte d'Appello [Court of Appeal], relation to monies collected as import Trieste, confirmed the judgment of a duties before they had been duly court of first instance in so far as it classified as charges having an effect ordered the Amministrazione delle equivalent to customs duties and the Finanze dello Stato to repay to burden of which had in addition been MIRECO the sums paid by it in 1977 by passed on to third parties was contrary way of charges for health inspections on . to Community rules. the occasion of imports of bovine animals from non-member countries, The Italian Corte di Cassazione, taking effected in the period from 12 December the view that the action raised questions 1964 to 31 December 1973. The Corte of the interpretation of Community law, d'Appello ruled that such charges for stayed the proceedings in pursuance of health inspections were charges having Article 177 and referred the following an effect equivalent to customs duties questions to the Court of Justice for a and were prohibited by Community law. preliminary ruling : It declared in addition that the recovery of such sums by the traders in question was not incompatible with Community "(a) With regard to the basic principles rules even after they had been passed on of Community law concerning the

A — Observations of the respondent to the appeal (MIRECO)

(b) If in the reply to the foregoing On the question of the answer to be questions it is ruled that there is a given to the first question, the prohibition against such recovery, respondent to the appeal objects to the which alternative measures, capable argument which the Amministrazione of securing in practical terms before delle Finanze attempts to base on the the national courts the right of the fact that the charges for health party who has suffered damage inspections were paid spontaneously through making the undue under the impression, shared by all payment, are compatible with parties, that they were due, and that Community law?" their payment was therefore the effect of

JUDGMENT OF 10. 7. 1980 — CASE 826/79

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v MIRECO

question of favouring certain under- claims that by reason of the partial scope takings or the production of certain of the integration brought about by the goods since the refund would not Treaty of Rome the safeguarding of the constitute a bounty from State resources rights conferred by Community rules but would only be the recovery of what should not only be entrusted to national had improperly formed part of State courts but in default of a harmonization funds. If the sums wrongly charged were which is certainly desirable but has not to be repaid by a private individual the yet been brought about, it would imply Amministrazione would not support the the application of procedures and rules argument in question and yet from the peculiar to the different national legal point of view of economics there is no orders which are not necessarily identical distinction to be made between a private in all Member States. This idea is person or a public person required to confirmed by the case-law of the Court reimburse sums improperly charged. of Justice in particular the judgment of 17 December 1970 (Case 33/70, S.p.A. SACE [1970] ECR 1213) and the judgment of 16 December 1976, REWE, According to MIRECO, the argument which has previously been referred to. pur forward by the Amministrazione is in contradiction with the case-law of the Court, in particular the judgment of 16 December 1976 (Case 33/76 REWE (1976] ECR 1989) and it is inconceivable that Community law should provide individuals with a lesser guarantee of B — Observations of the Italian their rights than that provided by Government national legal systems.

provisions of national law. It seems cases of undue charges from a unitary necessary, even in the case-law of the point of view and permitting a single Court of Justice, as is shown by the solution of the problem which is satis- judgments delivered on 4 October 1979 factory and non-discriminatory without in the Quellmehl cases, which were not making the protection of the individual published at the time the observations dependent upon divergent national rules. were made, to consider the problem from the point of view of liability and damage and consequently to agree to compensation only if and to the extent to which damage has actually been suffered The Italian Government further observes by the individual. In this respect the that if repayment may be excluded in Italian Government refers also to the case of a charge imposed by Community observations submitted by the Com- law but which is subsequently recognized mission in Case 130/79, Express Dairy as illegal, whereas, as may be deduced Foods Ltd., which was brought before the from the judgment in Granaria (13 Court on 10 August 1979 following a February 1979, Case 101/78, [1979] reference for a preliminary ruling from ECR 636), it was not possible to refuse the High Court of Justice, Queen's the payment of that charge as long as it Bench Division, Commercial Court. had not been declared invalid, it is even more necessary to conclude that repayment may be excluded in the case of national charges which the individual The Italian Government strongly in question might from the beginning emphasizes that this is a question of have refused to pay. Community law which concerns not only national charges levied in breach of Community law, but which covers all cases of undue charges imposed within the framework of the Community legal order and consequently also payments In the context of the position of principle effected under Community rules sub- set out above account must necessarily sequently declared invalid. A solution to be taken of the fact that the trader has this question of principle is all the more been able to pass on to purchasers from important since Council Regulation No him the charges which were wrongly 1430/79 on the repayment or remission levied. The objection that the various of import or export duties (Official assigns of the importer would have to be Journal L 175, p. 1), which is to enter permitted to take action for recovery and into force on 1 July 1980, does not that the products in question are sold at permit the settlement of cases of the kind imposed prices is not relevant. On the raised in the present action. one hand that part of the price corresponding to the charge wrongly paid has no value of its own for the purchaser and on the other hand the For safeguarding individual rights en- determination of the imposed price took croached upon in the event of the account of the charge unduly levied. levying of charges incompatible with Community law reasoning in terms of liability, damage and compensation rather than in terms of recovery of unwarranted payments would have the The Italian Government accordingly great advantage of resolving the different proposes that the reply should be that

Before going on to consider the questions raised by the national court the The Commission takes the view, with Commission maintains that in this case reference in particular to the judgment in there was no justification for the charges Marimex (14 December 1972, Case levied by the Italian Amministrazione 21/72, [1972] ECR 1309), that this case delle Finanze dello Stato. From 12 involves beyond any possible doubt December 1964 to 31 December 1973 charges which, by their nature, must be MIRECO had to pay in connexion with considered as charges having an imports into Italy of bovine animals from equivalent effect. non-member countries sums levied as charges for health inspections. However, it is important to determine The provision authorizing these charges what are the consequences involved for was abolished by Law No 889 of the Member State concerned in a 14 November 1977 and the Corte declaration by the Court that a certain Costituzionale [Constitutional Court] charge must be considered to be a charge declared in its judgment No 163/77 of having an equivalent effect. According to 29 December 1977 (Giur. Costituz. 1977 the Commission it follows from the I, p. 1524) that that law was uncon- settled case-law of the Court of Justice stitutional to the extent to which it that such a prohibition produces direct provided for the application of such effects in the legal relationships between charges to products referred to by Regu- the Member States and the individuals lation No 804/68 of 27 June 1968 on the concerned and is capable of conferring common organization of the market in personal rights upon them (judgment of milk and milk products (Official Journal, 19 June 1973 in Case 77/72, Capolongo, English Special Edition 1968 (I), p. 176) [1973] ECR 611; judgment of 18 June and Regulation No 805/68 of 27 June 1975 in Case 94/74, IGAV, (1975] ECR 1968 on the common organization of the 699 and judgment of 5 February 1976 in market in beef and veal (Official Journal, Case 87/75, Bresciani [1976] ECR 129). English Special Edition 1968 (I), p. 187). As what is involved in this case is beef and veal, Article 12 of Regulation No The Commission thinks it advisable to 14/64 on the progressive establishment stress that reimbursement is due solely of a common organization of the market because the charge was improper and in beef and veal (Journal Officiel 34, that all other considerations are purely

In the present state of Community law It is clear from the way in which the the duty of Member States to reimburse question referred to the Court has been charges having an equivalent effect framed that it is concerned primarily imposed in breach of Articles 9, 12 and with the problem of the temporal effect 13 of the EEC Treaty must be performed of interpretative judgments of the Court in accordance with the provisions of under Article 177 of the Treaty and also their national law and in conditions with the limits which the Court meets which may not be less favourable than with in this connexion. those relating to similar actions of a domestic nature (judgment of 16 December 1976 in Case 33/76, REWE, The Commission first points out that [1976] ECR 1989). Article 177 is based on a very clear distinction between the functions of the national courts and those of the Court of (b) Interpretation of Articles 92, 93 and Justice and does not allow the latter to 95 of the Treaty express an opinion on the facts of the case or to review the reasons for the request for interpretation. It follows As regards the assimilation of reim- from this that, whatever the decision of bursement to an aid within the meaning the Court may be, it is for the national of Articles 92, 93 and 95 of the Treaty it court in each particular case to apply is clear that recovery of sums paid but that legal principle to the specific case not owed cannot come within the scope with all the attendant consequences.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v MIRECO

JUDGMENT OF 10. 7. 1980 — CASE 826/79

opinion of Mr Advocate General Warner It is for the Member States to arrange in Case 33/76, REWE[1976] ECR 2000. for the refund of charges levied in With reference to the second question contravention of Article 13 (2) of the the Commission takes the view that is Treaty in accordance with the provisions has lost its purpose having regard to the of their domestic law under conditions solution which it advocates for the first which must not be less favourable than those relating to similar actions of a question. domestic nature and which, in any case, It suggests therefore that the Court must not make the exercise of rights should reply as follows: conferred by the Community legal order "Community law, and in particular impossible in practice." Article 12 of Regulation (EEC) No 14/64 and Article 22 of Regulation (EEC) No 805/68, grants individuals the right to obtain a refund of sums wrongly III — Oral procedure levied because they were charges having equivalent effect (in this case: charges for health inspections) after the The respondent in the main action, elimination of the latter as a result of the represented by N. Catalano of the Rome entry into force of the above-mentioned Bar, and W. Viscardini of the Padua Bar, Regulation No 14/64 (1 November the Commission of the European 1964). Communities, represented by Mr Fabro, Refunding the amounts to those persons a member of its Legal Department, who had paid them when they were acting as Agent, and the Italian Government, represented by I. M. not owed is not incompatible with Braguglia, Avvocato dello Stato, acting Community rules on the free movement as Agent, presented oral argument at the of goods, the proper functioning of sitting on 5 June 1980. competition and non-discrimination in fiscal matters and in particular it cannot be regarded as an aid within the meaning The Advocate General delivered his of Article 92 of the Treaty. opinion at the same sitting.

tax matters and in particular with regard to the rules laid down in Articles 9, 12, 13, 92, 93 and 95 of the Treaty and, in respect of the system of guarantees provided by the Community system itself and in particular by Articles 171, 177 and 189 of the Treaty for the rights of persons which are safeguarded by those principles and rules, must the right of a person who has paid the charge in question to recover, from the State which has imposed it, with or without additional sums, the amount improperly paid be acknowledged unconditionally or prohibited unconditionally or upheld within specified limits and on given conditions (in which case what are those limits and conditions and which court, the Court of Justice or a national court, has jurisdiction to ascertain their presence in particular cases?) which the national legal systems, which may differ one from another, apply to the collection, provided for by the provisions of such systems, of charges on impor- tation which are prohibited by the Community provisions as they may be interpreted initially by the national court and subsequently by the Court of Justice?

(b) If in the reply to the foregoing questions it is ruled that there is a prohibition against such recovery, which alternative measures, capable of securing in practical terms before the national courts the right of the party who has suffered damage through making the undue payment, are compatible with Community law?"

2 Those questions have been referred to the Court in the course of actions brought by a trader against the Amministrazione delle Finanze dello Stato for repayment of charges for health inspections on imports of bovine animals from non-member countries paid by that trader for the period from 12 December 1964 to 31 December 1973, in respect of which it is not disputed that they are charges having an effect equivalent to customs duties.

5 The statement of the reasons on which the order making the reference is based shows that the questions referred to the Court have been submitted to elicit a reply covering the assumption that the contested charges 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 interpretation given by the Court of Justice to the concept of charges having an effect equivalent to customs duties which led the Court for the first time to classify charges for health inspections in that way in its judgment of 14 December 1972 in Case 29/72, Marimex v Italian Finance Administration [1972] ECR 1309.

6 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 13 of Regulation No 14/64 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 MIRECO

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 Simmentbal S.p.A. [1978] ECR 629 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.

10 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

JUDGMENT OF 10. 7. 1980 — CASE 826/79

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.

1 1 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.

12 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 over-payments. 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 The system of protection which subjects thus have as a result of the direct effect of the provisions of Community law in conjunction with the special features of national laws which govern in the various Member States matters of form and substance in relation to challenging national taxes or recovering those which have been paid without being owed cannot be regarded as incompatible either with Articles 9, 12, 13, 92, 93 and 95 of the EEC Treaty or, in a more general way, with the principles of Community law relating to the free movement of goods, the establishment of a system ensuring that competition within the Common Market is not distorted or the prohibition of discrimination in tax matters. The provisions referred to in the order making the reference do not preclude differences in treatment resulting from the differences between the national tax laws especially in relation to contesting national taxes.

16 The answer to the questions referred to the Court by the Corte Suprema di Cassazione must therefore be that:

(a) In the absence of Community rules concerning the contesting or the recovery of national charges which have been unlawfully demanded or wrongfully levied by reason of their incompatibility with Community law, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and determine the procedural conditions governing actions at law intended to safeguard the rights which subjects derive from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts have a duty to protect;

in answer to the questions referred to it by the Italian Corte Suprema di Cassazione by an order of 5 November 1979, hereby rules:

In the absence of Community rules concerning the contesting or the recovery of national charges which have been unlawfully demanded or wrongfully levied by reason of their incompatibility with Community law, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and determine the procedural conditions governing actions at law intended to safeguard the rights which subjects derive from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts have a duty to protect.

There is nothing, from the point of view of Community law, to prevent national courts from taking account in accordance with their national

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v MIRECO

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 the purchasers.

Kutscher Mertens de Wilmars Mackenzie Stuart