C-199/82

JUDGMENT OF 9. 11. 1983 — CASE 199/82

law is a consequence of, and an Community law where it is established adjunct to, the rights conferred on that the person required to pay such individuals by the Community charges has actually passed them on provisions prohibiting charges having to other persons. an effect equivalent to customs duties or, as the case may be, the discrimi- natory application of internal taxes. Whilst it is true that repayment may 4. Any requirement of proof which has be sought only within the framework the effect of making it virtually of the conditions as to both substance impossible or excessively difficult to and form, laid down by the various secure the repayment of charges national laws applicable- thereto, the levied contrary to Community law is fact nevertheless remains that those incompatible with Community law, conditions may not be less favourable even if repayment of a substantial than those relating to similar claims number of, or even all, the national regarding national charges and they taxes, charges and duties levied in may not be so framed as to render breach of Community law is subject virtually impossible the exercise of to the same restrictive conditions. rights conferred by Community law.

and

S P A SAN GIORGIO, a dairy in Locate Triulzi, whose registered office is in Milan,

on the principles of the EEC Treaty relating to the repayment of national charges levied in breach of Community law and on the interpretation of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, having regard to national legislation laying down certain conditions for the recovery of health inspections charges unduly levied.

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, O. Due and U. Everling, Judges,

Advocate General: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

A fixed charge, payable by exporters or The State Finance Administration importers and calculated in accordance appealed against the order of the with a scale annexed to the consolidated President of the Tribunale di Trento version, is made for such health and, on 16 July 1982, lodged an inspections carried out at the frontier. application for the suspension of the provisional enforcement of that order. In T h e scale of health inspection charges support of that application, it relied on has been amended and supplemented on Article 10 of Decree-Law No 430 of 10 several occasions, in particular by Law July 1982 laying down provisions N o 1239 of 30 December 1970 relating to manufacturing taxes, the (Gazzetta Ufficiale N o 26 of 1 February movement of petroleum products, direct 1970). taxes, value-added tax and related charges (Gazzetta Ufficiale No 190 of 13 July 1982). The sole provision of Law N o 1239 and the scale of health inspection charges were declared unconstitutional by Order Under that provision: N o 163 of the Corte Costituzionale [Constitutional Court] of 19 December 1977 (Gazzetta Ufficiale N o 4 of 4 "A person who has paid import duties, January 1978), inasmuch as they manufacturing taxes, taxes on con- provided for the collection of health sumption or State taxes which have been inspection charges on products covered unduly levied, even prior to the entry by Regulation (EEC) N o 804/68 of the into force of this decree, is not entitled Council of 27 June 1968 on the common to the repayment of the sums paid when organization of the market in milk and the charge in question has been passed milk products (Official Journal, English on in any way whatsoever to other Special Edition 1968 (I), p. 176) and persons, except in cases of substantive Regulation (EEC) N o 805/68 of the error. Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special The charge is presumed to have been Edition 1968 (I), p. 187). passed on whenever the goods in respect of which the payment was effected have been transferred, even after processing, On the basis of that order, on 19 May transformation, erection, assembly or 1982, SpA San Giorgio, a dairy in adaptation, in the absence of Locate Triulzi, with its registered office documentary proof to the contrary. in Milan, brought ' an action before the Tribunale di Trento for the recovery of sums which it had been obliged to pay, The goods are presumed to have been from 1974 to 1977, as health inspection transferred in the cases provided for in charges on the importation of dairy Article 53 (1) and (2) of Decree No 633 products from Member States of the of the President of the Republic of 26 EEC. October 1972.

The repayment of sums paid as value- above-mentioned provision have added tax continues to be governed been wrongly levied solely solely by the provisions concerning that inasmuch as their collection tax." conflicts with a rule of Community law; By order of 23 July 1982, the Presidente Istruttore [judge presiding over the (b) Whether the requirement of preparatory inquiry] of the Tribunale di negative documentary proof, the Trento, stayed the proceedings, pursuant sole condition to which the to Article 177 of the EEC Treaty, aforesaid national law subjects pending a preliminary ruling of the the repayment of charges unduly Court of Justice on the following levied, renders 'the exercise of questions: rights which national courts are under a duty to protect virtually " 1 . Would the Court, in order to clarify impossible'. and, if appropriate supplement its previous decisions, in particular its 2. Would the Court state whether, as judgment of 27 March 1980 in Case from 1 July 1980, the date of the 61/79 (Amministrazione delle Finanze entry into force of Council Regu- dello Stato v Denkavit [1980] ECR lation (EEC) No 1430/79 of 2 July 1205) and its judgments of 10 July 1979 on the repayment or remission 1980 in Case 811/79 (Am- of import or export duties, which, ministrazione delle Finanze dello according to the terms of Article 1 Stato v Ariete [1980] ECR 2545) and (2), applies to customs duties and in Case 826/79 (Amministrazione charges having. equivalent effect, a delle Finanze dello Stato v MIRECO Community system was introduced [1980] ECR 2559), explain: for the first time governing the repayment of charges unduly levied, (a) Whether a national law which, without however providing for any by way of exception to the exception where the charges are general provisions concerning passed on to other persons; and the recovery of undue payments, whether that system takes provides that certain charges precedence over any previous or (including, in particular, health subsequent national law." and inspection charges) unduly levied contrary to certain pro- visions of Community law, The order of the President of the inasmuch as they are charges Tribunale di Trento was registered at the having an effect equivalent to Court of Justice on 5 August 1982. customs duties, may be repaid only if it is proved that the In accordance with Article 20 of the charges have not been passed on Protocol on the Statute of the Court of to other persons, but does not Justice of the EEC, written observations subject the repayment of any were lodged on 6 October 1982 by the other tax, charge or duty Commission of the European Com- wrongly levied to the same munities, represented by Sergio Fabro, a condition, is to be regarded as member of its Legal Department, on 8 discriminatory, contrary to the October 1982 by SpA San Giorgio, principles of Community law; represented by Nicola Catalano of the and whether it is significant that Rome Bar, and on 29 October 1982 by the charges covered by the the Government of the Italian Republic

represented by Arnaldo Squillante, Head According to that provison : of the Department for Contentious Diplomatic Affairs, Treaties and "Any person who has paid import duties, Legislative Matters, assisted by Sergio manufacturing taxes, taxes on con- Laporta, Avvocato dello Stato. sumption or State taxes which have been unduly levied, even prior to the entry into force of this decree, is entitled to On hearing the report of the Judge- repayment of the sums paid if he Rapporteur and the views of the provides documentary proof that the Advocate General, the Court decided to charge in question has not been passed open the oral procedure without a on in any way whatsoever to other preparatory inquiry. However, it persons, except in cases of substantive requested the Italian Government and error. the Commission to submit written replies to certain questions; their replies were submitted within the prescribed period. The documentary proof referred to in the preceding paragraph must also be provided when the goods in respect of Decree-Law No 430, which was which the payment was effected have applicable when the President of the been transferred after processing, trans- Tribunale di Trento decided to refer the formation, erection, assembly or adap- case to the Court of Justice for a pre- tation. liminary ruling, did not become law, because, at its sitting on 4 August 1982, Goods are presumed to have been the Chamber of Deputies found that the transferred in the cases provided for in conditions of necessity and urgency Article 53 (1) and (2) of Decree No 633 which must first be established for the of the President of the Republic of 26 adoption of decree-laws under Article 77 October 1972. (2) of the Italian Constitution were not satisfied. The repayment of sums paid as value- added tax continues to be governed solely by the provisions relating to that The provisions of Decree-Law No 430 tax." were inserted, in the form of amendments tabled by the government, in Article 1 of a bill to convert into a law Decree-Law No 688 was converted into Decree-Law N o 486 of 31 July 1982 a law by Law No 873 of 27 November introducing urgent revenue measures; 1982 (Gazzetta Ufficiale No 328 of 29 however, that bill was never passed November 1982). because the debate in the Chamber of Deputies could not- be concluded before the expiry of the period set aside for that purpose. II — W r i t t e n o b s e r v a t i o n s sub- mitted to the C o u r t

Article 177 of the Treaty the Court may The mere fact that the burden of proof not rule on the compatibility of national has been reversed could be regarded as provisions with the Community system incompatible with that protection. but must confine itself to interpreting the rules and principles of that system. Thus it is left to the national courts to decide whether the national provision at issue is compatible with the principles and provisions of Community law as It is clearly discriminatory that the interpreted by the Court. Moreover, prohibition on the repayment of certain Decree-Law N o 688 introduced purely duties which have been unduly levied, in procedural amendments to the rule practice, prevents only the repayment of adopted in Decree-Law N o 430, so that duties which are held to have been the questions submitted to the Court unduly levied on the ground that they remain relevant in connection with the are contrary to Community law. new text. Moreover, the object of the prohibition is to prevent the normal consequences of the declaratory judgments whereby the Court interpreted the pre-existing Community rules and thus revealed the The first question incompatibility with Community law, and consequent illegality, of the duties provided for by the national provision.

(a) Previous decisions of the Court establish that a provision of national law which, in connection with the repayment of charges unduly levied, takes into account the fact that such charges could The second question have been passed on is not, in itself, incompatible with the Community system. However, its requirements may not be less favourable than those relating to national actions of a similar nature and must not render it impossible in (a) It is first necessary to ascertain practice for natural and legal persons to whether the main action may and must exercise the rights conferred on them by be decided, not in accordance with the Community law. provisions of national law, but on the basis of the new Community rules contained in Regulation No 1430/79.

that effect could not legitimize discrimi- In this case, the fact already governed by nation in relation to other charges, nor the earlier legislation is the unlawful render purely illusory the protection collection of health inspection charges in which is guaranteed to all parties by the breach of the principles of Community Community rule infringed by the law. The position is different as regards unlawful collection. the recovery of the undue payment. T h e claim had been submitted and would be adjudicated on after the entry into force of Regulation N o 1430/79 on 1 July 1980 Therefore, in order to decide the According to Article 1 (1) thereof, the question of the recovery of charges regulation "lays down the conditions wrongly levied and to order the under which the competent authorities repayment thereof, the uniform shall repay or remit import and export Community rules should be applied. duties"". Conditions for repayment may not therefore be imposed unless they are expressly provided for in the regulation.

In accordance with the principle of the supremacy of Community provisions over national provisions, the im- Article 2(1) stipulates that duties shall be plementation of the provisions of Regu- repaid or remitted when "the amount of lation N o 1430/79 implies that the such duties entered in the accounts provisions of the national system, or at relates to goods in respect of which a. least those which are incompatible with customs debt has . . . not arisen . . .". the Community provisions, are no longer Clearly a provision imposing a payment applicable. which is incompatible with a Community rule may not give rise to such a debt; the undue payment therefore creates a right to repayment.

succeeded him in his rights and Indeed the prohibition of charges having obligations". That restriction does not equivalent effect would be useless if it permit the passing-on to be taken into were not acknowledged that the victims account for the purposes of the of a breach of the Community principles repayment of duties unduly levied. If the are entitled to claim recovery from their right to repayment were refused to a national authorities. person who, having paid a duty which was unduly levied, was able to pass on the charge to another trader, that right could not be refused to the latter, who, having borne the charge, should be able to obtain repayment. Article 15 of the The fundamental principle of the regulation corresponds entirely to the customs union, on which the entire Italian system which was in force until structure of the Community rests, would 13 July 1982, according to which the be jeopardized if Member States were person who pays sums unduly levied is permitted not to refund sums unduly always entitled to recover them, even if it levied by them as charges having an is established that he has passed the effect equivalent to customs duties in charge on to another person, subject to intra-Community trade. The Court's the latter's right to seek reimbursement ability to control effectively breaches from the first person, within the limits of which Member States may commit the repayment obtained by that person would also be affected since the vigilance and after the repayment has been of private individuals, concerned to effected. safeguard their rights, creates an effective means of control, which supplements that which is entrusted to the diligence of the Commission and the Member States under Articles 169 and 170.

when, as in this case, it appears from the were levied between 1974 and 1977, it reference itself that it cannot influence should be noted that no Community the judgment in the main proceedings. In provision is applicable. The right to the this case the Presidente Istruttore is not recovery of the charges is therefore required to deliver a judgment, since to governed solely by Italian national law. do so falls within the jurisdiction of the assembled members of the Tribunale. His task is to adopt a measure which cannot (c) In the Italian legal system, the be said to be in the nature of a decision general provisions concerning recovery and which is in no way definitive. of undue payments are the subject of Article 2033 of the Civil Code. Article 19 of Decree-Law No 688 constitutes an Under the terms of Article 177 a exception to the general rule which is reference for a preliminary ruling must derived from the interpretation given to be made by the court which has Article 2033 by the courts. jurisdiction to give judgment in the case in question — in this case the Tribunale. The Court must therefore take note of the fact that the rules for making a It does not however follow that the reference have clearly not been observed. special rule is incompatible with the Community legal system. That system contains no principle which prevents national systems from taking into Substance consideration the passing-on of customs charges as a ground for refusing to repay a person who has paid the charge (a) The provision to which the first unduly. question of the Tribunale di Trento refers (Article 10 of Decree-Law N o 430 is almost entirely reproduced by Article 19 of Decree-Law N o 688) is no (d) As regards the recovery of charges different from the text of Article 4 (IV) having equivalent effect levied contrary of the French Law of Finance for 1981 to Article 13 of the Treaty, the decisions and derives from a principle which exists of the Court have established the in other Member States, in particular following principles : Denmark, which make the repayment of sums unduly levied conditional on the existence of loss sustained by the person In the absence of Community provisions, who paid those sums, in order to prevent it is for the national legal system of each his unjustified enrichment as a result of Member State to lay down rules for the an action for repayment not subject to recovery of national charges which are any restrictions. levied unduly by reason of their incompatibility with Community law;

The principle of non-discrimination laid That rule corresponds to other down by the Court does not mean that a provisions of the national legal system, in national provision which establishes a particular, that which lays down a special rule for specific sectors and which 10-year period of limitation for the right constitutes an exception to the ordinary to the recovery of undue payments and rule is incompatible with Community those which establish the obligation to law. On the other hand, a national conserve during the same period the provision which, in the same sector, lays records and accounts of the undertaking. down different rules for the right to There is therefore no insurmouhtable recovery, according to whether the difficulty in producing the documents payment effected is held not to have required by Article 19 of Decree-Law been due on the basis of national laws or No 688. on the basis of Community provisions, is clearly incompatible with Community law. The national rule which governs the recovery of customs charges should (e) In any case the system instituted by provide for identical conditions in the Regulation N o 1430/79 concerns cases case where the payment is held not to of undue payment arising from errors of have been due on the basis of national calculation, and therefore from rules and in the case where it is held not possibilities which are not covered in to have been due on the basis of Italy by Article 19 of Decree-Law No Community provisions. 688.

not only customs duties provided for by the case of the repayment of other types the common customs tariff but also agri- of charges. The obligation to furnish cultural levies and other import duties documentary proof that the goods in provided for by Community provisions, respect of which the charge was paid charges having equivalent effect, excise have not been transferred, does not duty, monopoly duty, taxes on seem, in practice, extremely difficult to consumption, State taxes and any other fulfil. It is sufficient to establish that the pecuniary charge levied at the frontier on goods are still at the disposal of the importation. importer in a warehouse or store. Moreover, a h e presumption, as regards taxes on consumption on certain goods, that the charge is passed on to other traders when the goods are transferred The previous decisions of the Court merley reflects a normal commercial show that different conditions and rules practice. may coexist for direct or indirect taxes and even, as regards indirect taxes, for taxes on consumption in the full sense of the expression, and other forms of indirect tax. Article 10 of Decree-Law (c) The retroactive nature of the N o 430 established identical conditions provision in question in the main for the repayment of all charges on proceedings would seem more ques- goods which are payable at the stage of tionable. consumption.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SAN GIORGIO

Civil Code never required the existence The replies to be given to the questions of negative documentary proof as a submitted condition for being able to bring such an action.

JUDGMENT OF 9. 11. 1983 — CASE 199/82

intra-Community trade and instituted with regard to the repayment of charges by a Member State in breach of levied unduly; identical treatment must Community law. therefore be applied with respect to all, or at least the majority of, indirect taxes. In that connection the fact that Article 10 of Decree-Law No 430 concerns a· group of taxes comprising predominantly Ill — Oral procedure import duties and charges gives rise to serious objections.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SAN GIORGIO

2 It appears that between 1974 and 1977 SpA San Giorgio, the plaintiff in the main proceedings, was required to pay health inspection charges which were levied contrary to Community law on the importation of dairy products from Member States of the EEC.

3 SpA San Giorgio brought an action before the Tribunale di Trento reclaiming the amounts in question. After summary proceedings the 1 resident of that court directed that the State Finance Administration should repay SpA San Giorgio LIT 65 160 585 and authorized provisional enforcement of that order.

4 The State Finance Administration appealed against the order and applied for suspension of the enforcement thereof. In support of its application it relied on Article 10 of Decree-Law N o 430 of 10 July 1982 laying down provisions relating to manufacturing taxes, the movement of petroleum products, direct taxes value-added tax and related charges (Gazzetta Ufficiale N o 190 of 13 July 1982), which provides as follows:

"A person who has paid import duties, manufacturing taxes, taxes on consumption, or State taxes which have been unduly levied, even prior to the entry into force of this decree, is not entitled to the repayment of the sums paid when the charge in question has been passed on in any way whatsoever to other persons, except in cases of substantive error.

The charge is presumed to have been passed on whenever the goods in respect of which the payment was effected have been transferred, even after processing, transformation, erection, assembly or adaptation, in the absence of documentary proof to the contrary."

61/79 (Amministrazione delle Finanze dello Stato v Denkavit [1980] ECR 1205) and its judgments of 10 July 1980 m Case 811/79 (Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545) ànd in Case 826/79 (Amministrazione delle Finanze dello Stato v MIRECO [1980] ECR 2559), explain: (a) Whether a national law which, by way of exception to the general provisions concerning the recovery of undue payments, provides that certain charges (including, in particular, health inspection charges) unduly levied contrary to certain provisions of Community law, inasmuch as they are charges having an effect equivalent to customs duties, may be repaid only if it is proved that the charges have not been passed on to other persons, but does not subject the repayment of any other tax, charge or duty wrongly levied to the same condition, is to be regarded as discriminatory, contrary to the principles of Community law.; and whether it is significant that the charges covered by the above-mentioned provision have been wrongly levied solely inasmuch as their collection conflicts with a rule of Community law; (b) Whether the requirement of negative documentary proof, the sole condition to which the aforesaid national law subjects the repayment of charges unduly levied, renders 'the exercise of rights which national courts are under a duty to protect virtually impossible .

2 Would the Court state whether, as from 1 July 1980, the date of the entry into force of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, which, according to the terms of Article 1 (2), applies to customs duties and charges having equivalent effect, a Community system was introduced for the first time governing the repayment of charges unduly levied, without however providing for any exception where the charges are passed on to other persons; and whether that system takes precedence over any previous or subsequent national law."

s On this point the Court need only refer to the previous cases in which it has consistently held that every court or tribunal of a Member State is entitled to request a preliminary ruling under Article 177, regardless moreover of the stage reached in the proceedings pending before it and regardless of the nature of the decision which it is called upon to give. (See in particular: Case 43/71, Politi v Ministry for Finance, [1971] ECR 1039; Case 162/73, Birra Dreher v Amministrazione delle Finanze dello Stato, [1974] ECR 201; and Case 70/77, Simmenthalv Amministrazione delle Finanze dello Stato, [19781 ECR 1453).

9 It follows that both the summary order made by the President of the Tribunale di Trento and any decision to suspend enforcement of that order following the appeal lodged by the State Finance Administration fall within the scope of the second paragraph of Article 177 of the Treaty.

io The preliminary objection raised by the Italian Government is therefore without foundation.

JUDGMENT OF 9. 11. 1983 — CASE 199/82

T h e first q u e s t i o n

,, In essence the first question asks whether a Member State may make repayment of national charges levied contrary to the requirements of Community law conditional upon proof that those charges have not been passed on to other persons:

1 3 However, as the Court has also recognized in previous decisions, and in particular in the aforesaid judgment in Just v Ministry for Fiscal Affairs, Community law does not prevent a national legal system from disallowing the repayment of charges which have been unduly levied where to do so would entail unjust enrichment of the recipients. There is nothing in

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SAN GIORGIO

Community law therefore to prevent courts from taking account, under their national law, of the fact that the unduly levied charges have been incor- porated in the pnce of the goods and thus passed on to the purchasers. Thus national legislative provisions which prevent the reimbursement of taxes, charges, and duties levied in breach of Community law cannot be regarded' as contrary to Community law where it is established that the person required to pay such charges has actually passed them on to other persons.

1 4 On the other hand, any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure the repayment of charges levied contrary to Community law would be incompatible with Community law. That is so particularly in the case of presumptions or rules of evidence intended to place upon the taxpayer the burden of establishing that the charges unduly paid have not been passed on to other persons or of special limitations concerning the form of the evidence to be adduced, such as the exclusion of any kind of evidence other than documentary evidence Once it is established that the levying of the charge is incompatible with Community law, the court must be free to decide whether or not the burden of the charge has been passed on, wholly or in part, to other persons.

is The reply to the first question must therefore be that a Member State cannot make the repayment of national charges levied contrary to the requirements of Community law conditional upon the production of proof that those charges have not been passed on to other persons if the repayment is subject to rules of evidence which render the exercise of that right virtually impossible, even where the repayment of other taxes, charges or duties levied in breach of national law is subject to the same restrictive conditions.

The second question

i9 The second question asks whether a solution to the problem set out in the first question can be derived from Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (Official Journal 1979, L 175, p. 1).

2o The attention of the national court should be drawn to the fact that that regulation, which deals with the repayment or remission of unduly levied

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SAN GIORGIO

import or export duties, applies, by virtue of Article 1 (2) thereof, only to taxes, charges levies and duties created by various Community provisions and collected by the Member States on behalf of the Community. Therefore that regulation does not apply to any national taxes, charges and duties which may be levied contrary to Community law.

A Member State cannot make the repayment of national charges levied contrary to the requirements of Community law conditional upon the production of proof that those charges have not been passed on to other persons if the repayment is subject to rules of evidence which render the

OPINION OF MR. MANCINI — CASE 199/82

exercise of that right virtually impossible, even where the repayment of other taxes, charges or duties levied in breach of national law is subject to the same restrictive conditions.

Mertens de Wilmars Koopmans Bahlmann Galmot

Pescatore M a c k e n z i e Stuart O'Keeffe Due Everling

Delivered in o p e n c o u r t in L u x e m b o u r g on 9 N o v e m b e r 1983.