C-228/96

3. The first problem was specifically referred to in the first, second and third questions — subsequently withdrawn — in which the refer- ring court, in principle, sought the applica- 2. As I stated in my Opinion in that case, the tion or 'completion and clarification' by the questions initially submitted in Aprile I con- Court of Justice of its case-law concerning cerned: the requirement that unduly paid charges should be refunded where a State has failed to fulfil the obligations imposed by Community law by continuing to impose charges or other State customs levies incompatible with Com- munity law. — first, the impact of the rules and principles of Community law on the national legis- lation — Law N o 428 of 20 December 1990 (hereinafter 'Law N o 428' 2 ) — which governs the repayment of certain taxes unduly levied by the Italian customs administration; 4. The fourth and fifth — and only remaining — questions sought to clarify whether the * Original language Spanish. rules and general prohibitions applicable to 1 — Case C-125/94 Aprile [1995] ECR I-2919. intra-Community imports (specifically, the 2 — Law on Compliance with the Obligations Deriving from Ita- prohibition of charges having an effect equiva- ly's Membership of the European Communities (GURL 1991 supplement. No 10). lent to customs duties) might be extended to

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2. Does the principle that the procedural con- ditions of domestic law for the protection of rights arising under Community law must not be less favourable than those relating to similar actions of a domestic nature (judgments of 15 ' 1 . Do the principles of legal certainty, effec- December 1976 in Case 33/76 Rewe v Land- tive protection of rights arising under Com- wirtschaftskammer Saarland and Case 45/76 munity law and non-discrimination as regards Comet BVv Produktschap voor Siergewassen, the remedies available for the protection of upheld in subsequent other judgments) pre- such rights (according to which the proce- clude the introduction of a national provi- dural conditions of domestic law must not be sion, such as that contained in the first para- less favourable and, in any event, must not graph of Article 29 of Law N o 428 of make it excessively difficult to exercise such 29 December 1990, which, whilst apparently rights), as formulated in the case-law of the designed to standardise the time-limits for the Court of Justice, preclude the introduction of repayment of sums paid in relation to cus- national rules, such as those laid down in the toms operations, in reality (as is clear from

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Facts and procedure

4. If the preceding question is answered in the affirmative, does the aforementioned prin- ciple laid down in Case C-208/90 Emmott v Minister for Social Welfare and Attorney Gen- eral, by virtue of its constituting a specific application of one of the fundamental prin- 7. I shall first set out the facts underlying the ciples of Community law, have general, direct main proceedings and the course of the

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procedure, as I did in my Opinion in Aprile charges to be collected in respect of cus- 7 (points 5 to 10): toms import operations effected outside customs officials' normal working hours.

— The Italian limited company Aprile Sri, which operated as a customs agent in Milan, was declared insolvent on 20 — In view of the opposition to the claim on October 1992. The receiver, after exam- the part of the Amministrazione delle ining the company's accounts, decided to Finanze dello Stato (State Finance Admin- claim from the Tesoreria Provinciale dello stration), the Giudice Conciliatore, Milan, Stato reimbursement of the amounts paid by order of 26 April 1994, sought a pre- by the company in previous years by way liminary ruling from the Court. of charges for customs operations carried out outside normal civil service working hours or outside the customs area.

8. Once judgment was given in Aprile I, the less, it reduces that time-limit to three main proceedings continued and the Giudice years — and the limitation period pre- Conciliatore was confronted with the objec- scribed by Article 84 of that consolidated tion raised by the defendant Administration, legislation — as from the 90th day fol- in the alternative, under Article 29 of Law lowing the entry into force of the Law; 4 N o 428, that the right of recovery was time barred (in fact, that the action for recovery lapsed).

— Article 29(2) provides that 'import cus- toms duties, manufacturing taxes, con- The national legislative context and the Com- sumption taxes, the sugar price supple- munity legislative context ment and State duties levied under national provisions incompatible with Community provisions shall be repaid, save where the burden thereof has been passed on to oth- ers';

9. Article 29 of Law N o 428 3 provides, under the heading 'Repayment of taxes considered incompatible with Community law', as fol- lows: — Article 29(7) provides that Article 29(2) is to apply even where the reimbursement relates to amounts paid before the entry into force of the Law (27 January 1991). — Article 29(1) extends the five-year time- limit laid down by Article 91 of the Con- solidated customs legislation to all actions for recovery of amounts paid in connec- tion with customs operations; neverthe-

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mission v Italy 5 and Case C-209/89 Commis- administrative formalities carried out during sion v Italy. 6 part of the normal business hours of customs offices at frontier posts as determined by the second indent of Article 5(1)(a) of Council Directive 83/643 of 1 December 1983 on the facilitation of physical inspections and admin- istrative formalities in respect of the carriage of goods between Member States, as amended 11. In the first of those judgments, the Court by Council Directive 87/53, the Italian of Justice analysed Article 11 of Decree N o Republic has failed to fulfil its obligations 43 of the President of the Italian Republic of under Articles 9 and 12 of the E E C Treaty'. 23 January 1973 consolidating the legislative provisions on customs matters, as amended by Article 1(2) of Decree N o 254 of 8 May 1985. It provided for the collection of an amount corresponding to the cost of the ser- vice for customs transactions carried out during business hours but outside the normal working hours of civil servants, which in the Italian Republic were six hours a day from 13. In the second of the judgments cited Monday to Saturday. The judgment also exam- (Case C-209/89), the Court of Justice held ined Article 15 of Decree N o 254, which pro- that legislation requiring from each under- vided more generally that the inspections and taking individually, where services are ren- administrative formalities referred to in the dered simultaneously to several undertakings decree which are carried out during the busi- in connection with the completion of cus- ness hours of offices but outside normal civil toms formalities in intra-Community trade, service hours are to be charged for according payment of an amount disproportionate to to the cost of the service. the cost of the services provided was incom- patible with Community law. Both the charges due for service outside normal working hours and those for services provided outside the customs area, governed by the Ministerial Orders of 29 July 1971 and 30 January 1979 respectively, fell into that category. 12. In that judgment, the Court of Justice held:

15. I shall analyse first the second question submitted by the national court, relating to the content of the internal rule as such — that is to say, disregarding its temporal effect — 18. Framed in those terms, the question and the possibility that it may be contrary to embodies its own answer: it would involve Community law. Such an analysis must logi- discrimination contrary to Community law. cally, in my view, come before consideration The fact is, however, that the terms of the of the issue of the retroactivity or otherwise problem are different and, according to the of that rule, with which the first question is views expressed in the documents before the concerned. Court, the abovementioned provision applies without distinction to all kinds of actions for recovery of payments to customs, 'whether based on domestic law or on Community law (leaving aside, I repeat, any question of ret- roactivity).

7 — At the hearing, counsel for the plaintiff company invoked the 'civil' nature of the sum paid since, in his view, it constituted 'remuneration for a service ' within a relationship between 16. Article 29(1) of Law N o 428, transcribed parties on an equal footing in which there was no exercise of any public authority. Quite apart from the fact that it seems above, reflects a clear legislative intention: to to me to be very difficult to uphold that thesis in relation to customs charges, regulated by the public authorities and apply the same five-year time-limit imposed deriving from the action of public officials in the discharge of by the customs legislation to every kind of their duties, such a contentioncan be answered only by the national court in accordance with the approach adopted in its claim and right of action for recovery of sums own legislation.

22. The national legislature is free to impose limitation periods or time-limits in the field 20. Starting from that premiss, the question of taxation and there is no need for them to can be seen in terms analogous to those used coincide with those laid down for other rela- by other Italian courts in relation to the tionships under civil law. N o provision or three-year time-limit applied to claims for principle of Community law obliges it, for refund of the annual government administra- such purposes, to treat tax relationships in the tive charge for entry of companies on the same way as relationships inter privatos. commercial register, in preliminary-ruling pro- ceedings in which I delivered my Opinion recently (Case C-231/96 EDIS; Case C-260/96 SPAC; and Joined Cases C-279/96 to C-281/96 Ansaldo and Others). The issue is, ultimately, whether it is permissible for actions against the revenue authorities for recovery of over- 23. Moreover, the Italian legal order sets very payments to be subject to time-limits or limi- different time-limits according to the area of law concerned. Specifically, the general limi- tation period under ordinary law (ten years) is laid down by Article 2946 of the Codice 8 — The judgment bears number 12024 (Massimario del Foro Ital- iano 1992) and corresponds to General List No 4373/91. Civile 'except where otherwise provided by Sometimes it is cited by reference to the date appearing in its law' and there are numerous legal provisions text (10 April 1992) and sometimes by reference to the date on which it was entered in the Registry (6 November 1992). which in fact impose shorter periods for the

— In certain cases, objections to or claims for the recovery of charges unduly levied are subject, under national law, to specific 24. Like all the Member States that have sub- temporal and formal conditions, both for mitted observations in these proceedings, I complaints addressed to the tax authori- see no reason whatever for rejecting the view ties and for legal proceedings. that a national legislature is entitled to impose for actions to recover tax revenue unduly paid time-limits for commencing proceedings which differ from those applicable to similar actions between private individuals. — In other cases, actions for the repayment of charges unduly paid must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed. Such actions are avail- able for varying lengths of time, in some cases for the limitation period laid down under the general law. 25. The legitimacy of such a distinction was, moreover, upheld by the Court of Justice in paragraphs 22 to 25 of its judgment of 27 March 1980 in Denkavit Italiana. 10 After recognising that Community law does not necessarily require a uniform rule common to all the Member States relating to formal and substantive conditions for contesting or recov- 26. The Court immediately went on to say ering charges contrary to that law, and that — reiterating what it held in Rewe and Com- the 'way in 'which the problem is dealt 'with et 11 — that, from the Community point of varies from one State to another, and even view, the conditions to be met by the various within a single Member State, depending on national systems regarding claims for recovery the various kinds of taxes or charges involved, of charges unduly pad whose illegality derived the Court of Justice accepted the viability of from Community law were those already mentioned: there should be no discrimination and the rights of action concerned should not be merely illusory. They are the expression, 9 — In the Italian Codice Civile itself, Article 2947 et seq., under according to the recent judgment of 10 July the headings 'Short limitation periods' and Oeemed limita- tion of actions', govern cases in which the limitation periods are shorter than usual. For example, five years for damages, five years in company matters, one year for transport and insurance contracts, one or three years, as the case may be, in employment relationships, and so on. 11 — Case 33/76 REWE [1976] ECR 1989 and Case 45/76 Cornel 10 — Case 61/79 [1980] ECR 1205. [1976] ECR 2043.

1997 in Palmisani, 12 of the 'principle of equiv- 29. In its ruling on that question, the Court alence' (equivalence with the requirements of Justice, after referring to the requirement laid down for similar claims of a domestic of non-discriminatory application of national nature) and of the 'principle of effectiveness' legislation, as compared with proceedings in of Community law respectively. purely national disputes of the same kind, and stating that such legislation must not make it impossible in practice to exercise the rights conferred by Community law, held that the three-year limitation period reflected 'a legislative choice which does not have the effect of undermining the aforesaid require- ment'. 27. In a case similar to this one, the Court of Justice had an opportunity to clarify its ear- lier doctrine even further in giving a prelimi- nary ruling on a question by which the national court sought 'in substance to ascertain the extent to which it is contrary to the general principles of Community law for national rules to provide for a mandatory time-limit of three years for the submission of all appli- cations for reimbursement of duties unduly paid, where there are no grounds of force majeure justifying an exception'. 30. Finally, in two judgments of 17 July 1997, Texaco and Oliesehkabet Danmark 14 and Haahr Petroleum, 1 5the Court of Justice repeated the same principle, confirming that 'the laying down of reasonable limitation periods, which is an application of the fun- damental principle of legal certainty, satisfies the two conditions referred to above and, in particular, cannot be regarded as rendering 28. The reply, given in the judgment of 9 virtually impossible or excessively difficult September 1989 in Bessin and Saison, 13 is the exercise of rights conferred by Commu- perfectly applicable to the present case since nity law, even if the expiry of those periods the legal situations are patently analogous. necessarily entails the dismissal, in whole or The national provisions at issue in that case in part, of the action brought'. Consequendy, were those of the French customs code, which it held that the limitation period of five years imposed a time-limit of three years for claims applied by Danish law to applications for the for the recovery of unduly paid import duties: reimbursement of national taxes contrary to those provisions departed from the general Community law was compatible with Com- limitation period applicable where no other munity law, even where it wholly or partly was specified, under the French Civil Code, prevented the requested refund. to claims for the refund of sums unduly paid.

32. As regards the remaining aspects of this question, raised not by the national court but by the Commission in its pleadings, 16 I refer to what I said in my Opinion in EDIS (points 51 to 65). 35. The national court makes the assumption, in its first question, that the Law has retroac- tive effect and that the reduction of time- limits which it introduces (from ten years to five, and from five to three) applies even to The first preliminary question cases where time started running before its entry into force.

33. Having concluded that the provision is in itself compatible with Community law, I must 36. The Corte di Cassazione (Court of Cas- sation), in its judgment of 6 November 1992, cited above, confirms the retroactive nature 16 — The Commission confined itself, on this point, to referring to its observations in EDIS. of the provision, giving rise to its non-

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-application. The reasoning of that judgment (c) that article is not merely interpretative may be summarised in the following points: but is also innovative and the legislature's intent was to endow it with retroactivity;

(d) precisely because of that retroactivity, the (a) according to the provisions existing before provision is not compatible with Com- the entry into force of Law N o 428, the munity law and domestic judicial authori- five-year limitation period applicable to ties must disapply it. 19 the refund of amounts unduly paid, cov- ered by Article 91 of the Consolidated Version of the customs laws, was appro- priate only where there were errors of calculation or misapplication of the tariff; in all other cases, the limitation period was the ordinary ten-year period; 17

17 — O n the question of the limitation period, this Court has 19 — 'Nevertheless, in interpreting that provision, this Court has expressed its view on numerous occasions to the effect that declared (judgment N o 7248 of 1991) that it is totally and — according to the wording of the provision prior to the fully innovative, in that it has converted a limitation period entry into force of paragraph 1 of Article 29 of Law N o 428 into a peremptory time-limit and has extended the applica- of 29 December 1990 — Article 91 of the Consolidated Ver- tion of Article 91 to cases (such as revenue levied in breach sion of the customs laws (concerning the five-year limita- of Community taw) certainly not covered by the previous tion period) related only to cases of refunds of sums paid in wording of that article. Therefore, even if it is admitted that excess of what was due as a result of errors of calculation or the legislature intended making that provision retroactive, misapplication of the tariff; whereas where — as in this case the latter, as already stated on the basis of arguments sub- — wrongly levied revenue was involved (because the Admin- stantially confirmed by the Constitutional Court (Order N o istration had collected sums not owing) the limitation period 444 of 1991), must not be applied in relation to applications was the ordinary period of ten years (judgments N o 2217 of for repayment of revenue levied in breach of Community 1989 and N o 2464 of 1987).' law, since it has made it more difficult to exercise the right to repayment (given the impossibility of interrupting peremp- 18 — T h e appeal (in cassation), however, must be seen in the light tory time-limits) and can even cause it to disappear (since of the subsequent legislation, namely paragraph 1 of Article decisions concerning the barring of rights of action arc made 29 of Law N o 428 of 29 December 1990; the latter, refer- ex officio).' ring to Article 91 of the Consolidated version of the cus- toms laws, mentioned the peremptory five-year time-limit 20 — Annex N o 6. It is the reply given on 23 April 1996 to the (no longer a limitation period) and declared it applicable to representative of the company by the Ministry of Finance, all applications and actions available to secure refunds of any Department of Customs and Indirect Taxes, referring to the sum paid in connection with customs operations'. opinion of the office of the Avvocato dello Stato.

21 — The order for reference voices similar doubts, in so far as it states: 'In this case, the liquidators of Aprile notified the claim for repayment on 30 March 1994, that is to say, after Law N o 428/1990 entered into force and when the prescrip- tion period had to be regarded as having been reduced to three years. The ninetieth day following the entry into force 42. But the problem affects not only claims of Law N o 428/1990, as from when the five-year period was reduced to three years, expired on 27 April 1991, as a result already submitted before 27 April 1991 but of which the claim of Aprile's liquidators was notified within also those submitted after that date where the three-year period if it is held to run from that day, but would have to be regarded as having been notified outside they concerned taxes paid before the new Law the three-year period if the periods for the lapsing of claims laid down by the provision have to be regarded as being "in entered into force. That is precisely what course" on the date when the Law itself entered into force.' happened in Aprile's case: the customs duties 22 — However, I must admit that I find the French Government's thesis convincing: if the three-year time-limit did not come had been (wrongly) paid in 1990, before the into force until 27 April 1991 and the application for repay- enactment of Law N o 428, as a result of which ment was lodged on 30 March, the relevant time-limit was the generally applicable period of five years, not affected by any claim it might have was then legally the reduction to three years which Law N o 428 introduced only with effect from the ninetieth day after its entry into admissible within the next ten years (ordinary force (namely, as from 27 April 1991). In those circum- ten-year limitation period). However, its claim stances, the application for repayment made by Aprile was lodged in time. did not in fact arise until March 1994.

(a) Although the reduction of the possibili- ties of claiming repayment of the taxes wrongly paid, introduced by the new law 44. The Deville case is in some respects dif- as compared with the previous provision, ferent from this one: the French legislature is clear and has been described as such by had approved a specific provision (Article 18 the national courts, it is also true that that of the Law of 11 July 1985) expressly in order Law — as interpreted by those courts — to abolish a tax held to be incompatible with allows the claim to be made within the Community law, on which the Court of Jus- three years following its entry into force, 26 tice had given a preliminary ruling in its judg- a period which must be deemed sufficient ment of 9 May 1985 in Humblot. 2 5The same to ensure that the right to repayment is article provided that taxpayers who claimed effective. repayment of that tax after 9 May 1985 could obtain it provided that they made their claim within a specified time-limit (about the inter- pretation of which the parties differed) reck- oned from the date of payment of the tax. The Court of Justice considered that it lacked jurisdiction to decide, in a preliminary ruling, (b) By contrast with Deville, the national whether or not the domestic legislation in legislation at issue is not of a special fact reduced the possibilities of making a nature, applicable exclusively to a tax pre- viously held to be incompatible with Community law — it affects a whole range of domestic taxes and the condi- 23 — Case 240/87 Deville v Administration des Impôts [1988] tions as to limitation periods and time- ECR 3513. 24 — The same principle had already been enunciated in the judg- limits are the same as those already in ment of 2 February 1988 in Case 309/85 Barra [1988] ECR force as part of the customs legislation. 355, which held to be incompatible with Community law national legislation which limited the repayment of sums owing by virtue of a previous judgment of the Court of Jus- tice (Case 293/83 Gravier [1985] ECR 593) to those who had submitted their claim before the latter judgment was delivered. 26 — The same view was expressed at the hearing by the repre- 25 — Case 112/84 [1985] ECR 1367. sentative of the Italian Government.

27 — Sec point 10 of this Opinion. 28 — The national court emphasises in the order for reference 49. That must not imply, in my view, an obli- that, under Article 252 of the implementing and transitional gation to 'crystallise' absolutely the earlier provisions of the Italian Civil Code (Royal Decree N o 318 of 30 March 1942), where the exercise of a right is subject legal rules, to the point of preventing the leg- to observance of a shorter time-limit than that laid down by the earlier Law, the new rime-limit also applies to the exer- islature from altering them. I consider, on the cise of rights that arose earlier, but starts to run as from the contrary, that a change to those legal rules entry into force of the new provision. Similar rules are found in numerous civil codes and similar legislation. would be permissible by way of general

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legislative measure provided that, in addition, 52. From the factual point of view, since the it did not deprive the persons affected of their charges were paid by Aprile in November right to seek reimbursement, and they were 1990, a few days before the enactment of the granted for that purpose an adequate period new Law N o 428, the period of three years conforming with the principle of effective allowed by that Law to seek repayment gave judicial protection. the company more than ample opportunity to bring an action for recovery in good time. Thus, over a long period of time following the entry into force of the new Law, there was no obstacle to its exercising its right to recover the tax/charge.

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In fact, the third question (as to whether 56. In that judgment the Court of Justice national courts are bound by the principles stated that 'until such time as a directive has laid down by the Court of Justice as 'unwrit- been properly transposed, a defaulting ten rules' of Community law) causes none of Member State may not rely on an individual's those parties to entertain any doubts: they delay in initiating proceedings against it in take it for granted that those rules are binding, order to protect rights conferred on him by as a corollary of the duty to fulfil obligations the provisions of the directive and that a deriving from the E C Treaty o r from the acts period laid down by national law within which of the Community institutions, it being the proceedings must be initiated cannot begin to responsibility of the Court of Justice to ensure run before that time'. 31 that in the interpretation and application of the Treaty the law is observed (Article 164 of the E C Treaty).

57. It is true that the scope of Emmott had nevertheless subsequently been cut down by the Court of Justice when it emphasised that the rule in that case can be applied only when the same singular circumstances arise as char- acterised that case. In its judgments in Steenhorst-Neerings 32 and in Johnson, 33 the Court of Justice confirmed that national limi- tation periods applied to requests for pay- ment of sums owing in respect of social ben- efits under certain directives, even where the directives in question had not been properly incorporated into national law.

62. First, as a general principle, it pointed out 59. Finally, two months before the hearing in that, in the absence of Community legislation this case the Court of Justice gave judgment on the matter, it is for the domestic legal order in Fantask, 34 which is particularly important of each Member State to regulate proceedings in the present context since the factual and for the recovery of sums unduly paid, pro- legal aspects of that case and this were similar. vided that the conditions are not less favour- able than those governing similar domestic claims and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

64. Thirdly, it again rejected the application to proceedings of this kind of the rule in Emmott, the solution adopted in that case being justified by its own special circum- stances in which the time bar had the effect of entirely depriving the plaintiff of any oppor- 67. In my opinion that endeavour was mis- tunity of asserting her right to equal treat- conceived. First, because its point of depar- ment under a Community directive. ture was wrong: rather than finding alleged differences between Fantask and that case, what it needed to prove was that the situa- tions in Emmott and that case were analo- gous, since the case-law subsequent to Emmott had drawn attention to the singularity of the 65. Finally, the Court of Justice concluded circumstances of that case, which decisively 'Community law, as it now stands, does not affected the solution adopted. At the hearing prevent a Member State which has not prop- the United Kingdom Government stressed in erly transposed [the directive] from resisting that respect that — among other things — it actions for the repayment of charges levied in was Mrs Emmott's own authorities who urged breach thereof by relying on a limitation her not to appeal. O n the contrary, nothing period under national law which runs from prevented the Italian companies from exer- the date on which the charges in question cising their right of appeal against the tax became payable, provided that such a period assessments made against them. is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.'

(1) Community law does not prevent domestic legal systems from imposing a peremptory time-limit of three years for actions to be brought against the rev- enue authorities for the repayment of taxes unduly paid, even where that time- limit is different from that laid down for actions for the recovery of sums unduly paid between private individuals, provided that the said time-limit applies without distinction to actions for repayment based on grounds of national law and to actions based on the application of Community provisions;

(2) A national provision which, in order to unify the legal rules applicable to cer- tain classes of taxes, reduces the limitation periods or time-limits for the com- mencement of proceedings previously applicable to the repayment of taxes levied in breach of a directive is not contrary to Community law, provided that that provision still allows an adequate period (for example, three years) as from its entry into force for the actions concerned to be brought;

(3) Community law does not preclude the application to a claim for repayment of a tax that is incompatible with a directive of a national provision under which an action to secure repayment of taxes unduly paid is time barred on the expiry of three years after the time of payment, even where that provision wholly or partly prevents repayment of the taxes in question.

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