C-231/96

2. The plaintiff, a limited liability company entered in the companies register at the Tri- 1 — Joined Cases C-71/91 and C-178/91 [1993] ECR I-1915. bunale di Genova in accordance with Presi- 2 — OJ, English Special Edition 1969 (II), p. 412. 3 — The relevant measure was Decree Law N o 331 of 30 August dential Decree N o 641 of 26 October 1972 1993, converted into Law N o 427 of 29 October 1993. (hereinafter 'DPR 641/1972'), paid each year 4 — To that effect, sec the judgments of the Corte di Cassazione (First Civil Chamber) of 28 March 1994 ( N o 2992); of 23 to the Italian Treasury, from 1986 to 1992, the November 1994 (No 9900), and of 23 February 1996 (Nos sum of ITL 64 500 000 in respect of the annual 4468/96 and 3458/96), the latter having been delivered by the Combined Chambers (Sezioni Unite). Similarly, in the second tassa di concessione governativa (administra- paragraph of the grounds of judgment N o 56 of 24 February 1995, the Corte Costituzionale, after outlining the problem- tive charge) for the registration of companies atical legislative background to the charge, considered that it in the register of companies. should be abolished as regards previous years (1993): 'Since the charge was improperly levied by the Italian Sute, in breach of Article 10 of Directive 69/335/EEC of 17 July 1969, as interpreted by the Court of Justice in its judgment of 20 April 1993 in Joined Cases C-71/91 and C-178/91, the sums paid are recoverable under Community law, which is directly applicable within the Italian legal order'. * Original language: Spanish.

3. If the answer to the preceding question is in the affirmative, the Court of Justice is asked to rule whether the Community legal order allows a national provision laying down a time-limit for which time starts to run (to the detriment of a citizen '1. For the purposes of amplifying and clari- of a Member State relying on the provi- fying the ruling given in the judgment of sions of a directive in order to obtain 20 April 1993 in Joined Cases C-71/91 repayment of a charge which was paid and C-178/91 Ponente Carni v Ammin- but not due) before that directive was istrazione delle Finanze dello Stato [1993] correctly transposed into national law.' ECR I-1915, must the provisions of the Treaty be interpreted as precluding the introduction and/or the retention by a Member State of a national provision such as that introduced by the Italian legislature in Article 13(2) of Decree N o 641 of the President of the Republic of The national legislation and its interpreta- 26 October 1972 where the effect of the tion by the Italian courts application of that provision is to limit the temporal effects of a judgment given by the Court of Justice?

5 — Article 633 of the Italian Code of Civil Procedure allows judicial authorities, when certain conditions are fulfilled (debts which are certain, liquid and payable, based on authentic documents),to issue a summary payment order, requiring the 7. I shall first describe the features of the debtor, albeit on a provisional basis, to pay the sum claimed. improperly levied charge as they were set out

I - 4955

— The amount of the charge for registration — The abovementioned Law N o 154 added was increased from ITL 81 000 to ITL a paragraph 8 bis to Article 36 of the 5 000 000 for public limited companies and Decree-Law of 2 March 1989, the result limited partnerships with a share capital, of which is that the amount of the charge to ITL 1 000 000 for private limited com- for 1988 is ITL 15 000 000 for public lim- panies and to ITL 100 000 for other com- ited companies and limited partnerships panies by Article 3(18) of Decree-Law N o with a share capital, ITL 3 500 000 for 853 of 19 December 1984 (GURI No 347 private limited companies and ITL 500 000 of 19 December 1984), converted into Law for other companies. Those provisions N o 17 of 17 February 1985 (GURI No 41 replaced the aforesaid provisions of Law bis of 17 February 1985). N o 291 of 26 July 1988.

I - 4956

EDIS v MINISTERO DELLE FINANZE

— As regards the period covered by the ment of sums paid in relation to customs charge, the abovementioned Decree-Law operations. 6 N o 853 provides that the charge is pay- able not only when the company's instru- ments of association are entered on the register but also on 30 June of each sub- sequent calendar year. 9. According to the general provisions of national law, rights of action for proceedings between private individuals to recover sums unduly paid are not subject to any time-limit other than the ordinary limitation period of 10 years laid down by Article 2946 of the Civil Code ('save where otherwise provided, 8. Of the national provisions governing the rights shall be time-barred upon the expiry of right to bring proceedings for recovery of 10 years'). taxes paid but not due, the following are rel- evant to this case:

11. The debate provoked by that judgment involved the following two opposing views: (b) The same three-year time-limit applies to actions for the repayment of other public charges, of a customs nature, as provided by Article 29(1) of Law N o 428/1990 in conjunction with Article 91 of the Con- (a) The view that the objection that there solidated version of the provisions relating was a time-bar under Article 13(2) of to customs duties (Decree N o 43 of the DPR 641/1972 should be rejected '... on President of the Republic of 23 January the ground that the idea that there was an 1973). The latter laid down a time-limit of five years which, as from the entry into force of that law, must be regarded 6 — The application of Law No 428/90 to claims for the reim- as applying to all claims and proceedings bursement of certain taxes is the subject of questions sub- mitted for a preliminary ruling in Cases C-228/96 Aprile 11 which may be brought for the reimburse- and C-343/96 Dilexport.

I - 4957

OPINION OF MR RUIZ-JARABO — CASE C-231/96

'... Under the present tax system, the repay- ment of charges wrongly paid is subject to the three-year time-limit, reckoned from the date of payment, and that regime is not inap- plicable to the charge involved here, the issue being one of non-application of domestic law The view must be rejected that, in this case, having regard to Community law, which takes the payment is not mistaken in that no state precedence, but that does not mean that the of mind arose as a result of misrepresentation Italian law is subject to derogation or is incom- of matters of fact or law, thereby affecting patible. volition: the payment was made in full knowl-

I - 4958

EDIS v MINISTERO DELLE FINANZE

15. Since its judgment of 8 April 1976 in Defrenne, 7 the Court of Justice has on various occasions expressed views as to the limitation of the temporal effects of its judgments. 8 In them it has endeavoured to reconcile the requirements of the principle of legal cer- 13. By its first question, the Tribunale Civile tainty with those which, in principle, derive di Genova seeks essentially to ascertain from the incompatibility of a national provi- whether, from the Community law stand- sion with Community law. point, it is permissible for national legislation to result in a limitation on the temporal effects of a judgment of the Court of Justice. The 7 — Case 43/75 [1976] ECR 455. national legislation referred to by the national 8 — The same approach has often been used by constitutional or para-constitutional courts when faced with problems deriving court is Article 13(2) of DPR 641/1972, which from a declaration of unconstitutionality of laws. See, in that I have set out above, and the judgment of the connection, the article by E. Garcia de Enterría, Tin paso importante para el desarrollo de nuestra justicia constitu- Court of Justice referred to by the national cional: la doctrina prospectiva en la declaración de ineficacia de las leyes inconstitucionales'. Revista Española de Derecho court is Ponente Carni. Administrativo, 1989, N o 61, page 5 et seq.

I - 4959

O P I N I O N OF MR RUIZ-JARABO — CASE C-231/96

16. The legal basis for its decisions is Article ognises that it may be necessary, in excep- 174 of the EC Treaty as far as direct actions tional cases, to limit the temporal effects of for annulment brought against Community interpretative judgments as well in order to provisions and measures are concerned. 9 That uphold certain requirements of legal certain- article confers on the Court of Justice a wide ty. 1 1In any event, it is a power vested only power of appraisal which enables it 'if it con- in the Court of Justice and not in any other siders this necessary' to uphold legal situa- judicial authority. tions which would otherwise be invalid because they derived from a regulation which had been declared void.

I - 4960

EDIS v MINISTERO DELLE FINANZE

20. Indeed, as the Court of Justice held in its (a) although affirming that 'the [Community] judgments of 27 March in Denkavit Ital- rule thus interpreted can, and must, be iana 12 and of 11 August 1995 in Roders and applied by the courts even to legal rela- Others, 13 'the interpretation which, in the tionships arising and established before exercise of the jurisdiction conferred on it by the judgment ruling on the request for Article 177 of the Treaty, the Court of Justice interpretation ...', gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force'. More concisely, (b) then goes on to emphasise that that power in its judgment in Goldsmiths of 3 July 1997, and duty arise 'provided that in other the Court of Justice referred to the principle respects the conditions for bringing before 'that a ruling on interpretation takes effect as the courts having jurisdiction an action from the date on which the rule interpreted relating to the application of that rule are came into force'. 14 satisfied'.

21. In other words, given that the interpreta- 23. That dictum — which, moreover, was tion of a Community provision adds nothing, recently confirmed in the judgments of 15 from the point of view of temporal effective- December 1995 in Bosman 15 and of 13 Feb- ness, to the validity of that provision, judg- ruary 1996 in Bautiaa and Société Française ments of the Court of Justice which perform Maritime 16 — accurately describes the tem- that function may be applied to legal situa- poral effects of judgments giving an interpre- tions of any kind governed by the Commu- tation in response to requests for preliminary nity provision which has been interpreted, rulings. regardless of its temporal aspects.

which, under domestic law, are still open t o tion and to determine the procedural condi- challenge or review and which, accordingly, tions governing actions at law intended to may be the subject of a decision of a judicial ensure the protection of the rights which citi- authority. zens derive from the direct effect of Commu- nity law, it being understood that such condi- tions cannot be less favourable than those relating to similar actions of a domestic nature, and may not make it impossible in practice to exercise rights which the national courts have a duty to protect.' 21

27. One of the requirements to which the exercise of rights of action of this kind may be subject is, precisely, the one relating to time. National law may lay down periods of varying lengths after which rights lapse, or time-limits for bringing actions for the repay- 26. Summarising the approach taken in the ment of taxes wrongly levied. If those time- case-law, the judgment of 29 June 1988 in limits are not contrary to Community law — Deville, 20 stated: 'In the absence of Commu- and the other two preliminary questions are nity rules concerning the refunding of national concerned with this point — they can apply taxes which have been wrongly levied, it is to all kinds of claims of that type, without for the domestic legal system of each Member that fact amounting, legally, to a limitation of State to designate the courts having jurisdic- the temporal effects of the judgments of the Court of Justice which brought to light the incompatibility of a national tax with Com- 17 — Case 33/76 [1976] ECR 1989. munity law. 18 — Cise 45/76 [1976] ECR 2043. 19 — The basis of this right, in the case of repayment of national taxes incompatible with Community law. is to be found in various rules or principles, to some of which reference has been made in judgments of the Court of Justice. Thus men- 21 — Those statements are a consistent feature in what is now a tion has been made of Article 5 of the Treaty, in so far as it long series of judgments which, starting with Rewe and requires the Member Sutes to ensure fulfilment of Treaty Comet, cited above, have been delivered in this area:

erly levied. Girard [1988] ECR 1099; Case C-5/94 Hedley Lomas [1996] 20 — Case 240/87 [1988] ECR 3513. ECR I-2553, among others.

(iii) The link between the two legal concepts Court of Justice 22 does not in any way pre- vent the national judicial authorities from applying to legal relationships arising or estab- lished before delivery of the judgment the provisions of a general nature which govern, from the procedural point of view, the exer- cise of the rights in question. The only limita- tions affecting the application of such provi- 28. The process of restricting, on an excep- sions are the prohibition of discrimination tional basis, the temporal effects of a judg- and the requirement that remedies should not ment operates like a concentric circle within be merely illusory: I shall return later to both the wider circle represented by the 'normal' these points when analysing the second and effectiveness of that judgment. That effective- third questions submitted. ness — which, as I have already said, does not preclude the application of the conditions laid down by national law, provided that they are not discriminatory and do not render illu- sory the right recognised by the Court of Justice — may even be reduced, in excep- tional cases, by means of an express declara- 31. Both the Commission and the various tion of that kind. Governments of Member States which have submitted observations (Italy, France and the United Kingdom) agree with that view, drawing attention to the clear difference between the two legal concepts: a limitation on the temporal effects of a judgment of the Court of Justice, as an exceptional measure adopted by that Court in a specific case, 29. The limitation of the temporal effects of operates on a different level from the general an interpretative judgment operates, there- rules on the exercise of rights, from the pro- fore, when there are a number of legal rela- cedural point of view, which it is incumbent tionships still outstanding, not 'exhausted' on each Member State to draw up and on under domestic law, which would normally their judicial authorities to apply. be affected by the interpretation of the Com- munity provision given by the Court of Jus- tice. The latter, if certain exceptional circum- stances exist, may decide that the effects of that interpretation are not to be implemented, not even with respect to the legal situations which are yet to be resolved. 32. At the hearing the Commission neverthe- less took a stance different from its earlier one. In its written observations it had sug- gested an answer to the first question which

33. It reached that conclusion after analysing the development of the Italian case-law regarding interpretation of the term 'error' in 34. I do not agree with that analysis. The relation to the payment of certain taxes that Italian judicial authorities — specifically the were not owed, and the consequent applica- Corte di Cassazione — drew the appropriate tion of time-limits to claims for their repay- inferences from the Ponente Carni judgment, ment. In the Commission's view, the Corte di upholding the entitlement of taxpayers to Cassazione had consistently interpreted that repayment of the tax. If they applied a par- term in a very precise way (errors of calcula- ticular time-limit, they did so on a not unrea- tion or assessment), which excluded cases of sonable interpretation of a pre-existing legal payments of tax sine causa, such as those provision — an interpretation which, more- over, sought to bring a specific set of circum- stances into line with the general rules on 23 — It is true that, in its written submissions, the Commission time-bars applicable to all charges payable for had referred to the Deville judgment and to a possible Government action. 27 As the representative analogy between it and the present case, but in rather hypo- thetical terms: thus, in paragraph 16 of those submissions, of the French Government stated at the the Commission 'wonders whether the interpretative prin- ciple formulated in Deville might not also be applicable ... hearing, there are no grounds for suspecting and does not exclude the possibility of the conclusion being reached that, paraphrasing the operative part of Deville, the that, after that change in the case-law, there following formulation could be adopted ...'. were any concealed intentions inconsistent 24 — In the operative part of that judgment, the Court of Justice with the impartiality and independence of held that, subsequent to a judgment of the Court of Justice from which it follows that certain legislation is incompat- that high judicial authority. Both the latter ible with the Treaty, a national legislature may not adopt a procedural rule which specifically reduces the possibilities of and other judicial bodies on a similar level bringing proceedings for recovery of taxes which were must sometimes depart from their earlier wrongly levied under that legislation. 25 — Case 309/85 [1988] ECR 355. case-law and, inevitably, they must do so in 26 — The suggested answer was: T h e judicial authorities of a relation to a specific case. Member State, following a judgment of the Court of Justice holding that certain tax legislation is incompatible with a Community directive, may not assign to a procedural provi- sion a new interpretation which specifically reduces the pos- sibility for persons concerned to seek reimbursement of a tax wrongly levied by that Member State.' 27 — See point 12 of this Opinion.

36. By its second question the national court seeks to ascertain whether it is permissible, from the Community point of view, for actions for the reimbursement of charges paid in breach of Council Directive 69/335 to be subject to a time-limit of three years reck- oned from the date of payment, which differs 39. Any differing views among legal writers from the limitation period (10 years) which and in the case-law in Italy as to the inter- national law lays down for actions for the pretation of that precept — and more specifi- recovery of sums unduly paid between indi- cally the concept of 'payment under a mis- viduals. take' — are a matter affecting only domestic law, on which of course the Court of Justice must not express a view. Suffice it to say that the Suprema Corte di Cassazione, in judg- ment N o 3458/96, cited above, considered that the time-limit laid down in the second paragraph of Article 13 of DPR 641/1972 extends to all charges for Government action 37. It must be emphasised at the outset that, unduly or mistakenly paid and, therefore, to under Italian law, the time-limit mentioned the charge at issue in these proceedings. 2 9 by the national court affects not only actions for the repayment of taxes incompatible with Community law but also all actions for the repayment of any charge for Government 28 — Point 7 of this Opinion. 29 — In that respect, see point 12 of this Opinion, setting out the action which was unduly levied, whether the reasoning of the judgment of the Corte di Cassazione.

I - 4965

OPINION OF MR RUIZ-JARABO — CASE C-231/%

44. The legitimacy of such a distinction was, moreover, upheld by the Court of Justice in paragraphs 22 to 25 of its judgment of 27 41. The national legislature is free to impose March 1980 in Denkavit Italiana, cited above. limitation periods or time-limits in the field After recognising that Community law does of taxation and there is no need for them to not necessarily require a uniform rule common coincide with those laid down for other rela- to all the Member States relating to formal tionships under civil law. N o provision or and substantive conditions for contesting or principle of Community law obliges it, for recovering charges contrary to that law, and such purposes, to treat tax relationships in the that the way in which the problem is dealt same way as relationships inter privatos. with varies from one State to another, and even within a single Member State, depending on the various kinds of taxes or charges involved, the Court of Justice accepted the viability of the two main sets of national rules in this area:

42. Moreover, the Italian legal order sets very 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 — In certain cases, objections to or claims Civile 'except where otherwise provided by for the recovery of charges unduly levied law' and there are numerous legal provisions are subject, under national law, to specific which in fact impose shorter periods for the temporal and formal conditions, both for barring of certain rights or the exercise of cer- complaints addressed to the tax authori- tain rights of action. 30 ties and for legal proceedings.

before the ordinary courts, mainly in the 47. The reply, given in the judgment of 9 form of claims for the refund of sums paid September 1989 in Bessin and Saison, 32 is but not owed. Such actions are available perfectly applicable to the present case since for varying lengths of time, in some cases the legal situations are patently analogous. for the limitation period laid down under The national provisions at issue in that case the general law. were those of the French Customs Code, which imposed a time-limit of three years for claims for the recovery of unduly paid import duties: those provisions departed from the general limitation period applicable where n o other was specified, under the French Civil 45. The Court immediately went on to say Code, to claims for the refund of sums unduly — reiterating what it held in Rewe and Comet, paid. cited above — that, from the Community point of view, the conditions to be met by the various national systems regarding claims for recovery of charges unduly paid whose ille- gality derived from Community law were those already mentioned: there should be no discrimination and the rights of action con- cerned should not be merely illusory. They are the expression, according to the recent 48. In its ruling on that question, the Court judgment of 10 July 1997 in Palmisani, 3 1of of Justice, after referring to the requirement the 'principle of equivalence' (equivalence of non-discriminatory application of national with the requirements laid down for similar legislation, as compared with proceedings in claims of a domestic nature) and of the 'prin- purely national disputes of the same kind, ciple of effectiveness' of Community law, and stating that such legislation must not respectively. 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'. 46. 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 49. Finally, in two judgments of 17 July 1997, paid, where there are no grounds of force Texaco and Olieselskabet Danmark 33 and majeure justifying an exception'.

'Does Community law preclude a national provision which, as interpreted by the com- petent national authorities, makes actions seeking to secure repayment of a national charge contrary to Article 10 of Directive 50. There would thus be discrimination if the 69/335/EEC subject to a time-limit which Italian provision barring actions for reim- presupposes the actual existence of a power bursement of charges unduly paid laid down of taxation on the part of a Member State and different time-limits according to the origin the existence of a corresponding fiscal obliga- — in national or Community law — of the tion, and not to the limitation period appli- obligation to repay them. That would be the cable under national law to cases of repay- case if the legally prescribed period for ment of sums "objectively undue" resulting claiming a refund of the charge, on the ground from the non-existence of any power of taxa- of incompatibility with Community law, were tion on the part of the State or any corre- shorter than the legally prescribed period for sponding fiscal obligation?' claiming refund of the same charge on any ground of national law. But since that is not the case and the time-limit laid down by Article 13(2) of DPR 641/1972 applies without distinction to all actions for repayment of the charge, whatever their basis, the answer to the second question must uphold the 52. I do not approve of that approach as regards either the alleged inadmissibility of the question or the necessity or appropriate- 34 — Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53. ness of reformulating it.

56. The Commission, to the same effect, emphasises that the abovementioned judg- ment of the Corte Costituzionale 'appears to run counter to' the doctrine laid down by the 54. Nor, in my opinion, should the proposed Suprema Corte di Cassazione in judgment reformulation of the second question be N o 3458/96, cited above: the Corte Costi- accepted. The national court does not go back tuzionale classified actions for the repayment to the 'underlying supposition' of Article 13 of tax as 'actions for the reimbursement of of DPR 641/1972 or the existence or other- sums unduly paid', an expression which in wise of the power of taxation of the State, Italian law has a clear and unequivocal nor does it infer from those suppositions that meaning, in so far as it refers to Article 2033 a time-limit of three years or a limitation of the Civil Code ('sums objectively not due'). period of 10 years is applicable. Those prob- It follows, in the Commission's view, that the lems, on the contrary, are indeed the subject limitation period applicable to those actions of questions on which a preliminary ruling is 10 years, not the three-year time-bar laid has been sought by other Italian judicial down by DPR 641/1972. authorities regarding repayment of the charge at issue in these proceedings, to which an answer must be given in the relevant cases. 35

35 — Joined Cases C-10/97 to C-22/97. At the hearing, the Com- mission refrained from making any submissions on the effects of possible legal non-existence' of national laws incompatible with Community Law, which in its opinion could be inferred from the Simmenthal judgment, and 57. In my opinion, that alleged discrepancy expressly stated that it preferred to defer its submissions on this point until the hearing in the cases mentioned above. between the judgments of the two Italian

36 — The judgment of the Corte Costituzionale referred solely to the requirement of prior exhaustion of administrative rem- edies as an essential precondition for the availability of court proceedings. That requirement is considered unconstitu- tional, in the following terms: 60. In its opinion, the 'measures of national 'According to settled case-law of this Court, to make legal proceedings subject to the requirement of prior exhaustion law' which must serve as a point of reference of administrative remedies, thereby deferring the possibility for applying the principle of equivalence are of bring such proceedings until a particular period of time has elapsed since lodgment of the administrative appeal, is actions for recovery brought by taxpayers only lawful when justified by requirements of a general nature or superior principles of justice, and the fact remains who have paid a tax under domestic law that, even in such circumstances, the legislature must impose which has subsequently been declared uncon- that requirement in the least burdensome terms possible. For disputes covered by Article 12 of DPR 641/1972, as for stitutional. In its written observations, the those covered by the analogous provisions of Decrees 640 and 642, there is no rationale for justifying the limitation Commission had stated that both Italian leg- imposed on the principle laid down in Article 24 of the islation and case-law regarded such actions as Constitution. Such disputes do not involve technical verifi- cations which might disclose the necessity or appropriate- a case of 'recovery of sums objectively not ness of the judicial stage being preceded by an administra- tive analysis (cf. judgment N o 15 of 1991), particularly due' covered by the common rules of the where, as in this case, the proceedings concern repayment of taxes improperly levied by the tax administration. There arc Italian civil code (Article 2033) and therefore no reasons to justify the privilege of special rules, in favour of the debtor, applicable to actions against the tax authori- ties for recovery of sums unduly paid.' The Commission seeks to apply that last sentence, taken out of its context, also to time-limits for those actions, which in my view clearly goes beyond the ratio deadend of the judgment, which cer- 37 — The Court of Justice has repeatedly held (see, amongst the tainly does not refer to the temporal difficulties concerning most recent cases. Case C-300/95 Commission v United actions for reimbursement but is concerned, rather, with the Kingdom [1997] ECR I-2649, paragraph 37) that the scope unjustified requirement of first exhausting administrative of national laws, regulations or administrative provisions remedies. must be assessed in the light of the interpretation given to them by national courts.

— Judgments of the Corte Costituzionale — There is no basis for the view that, because which declare to be unlawful provisions of the retroactive effect of declarations of ranking as laws eliminate the latter from unconstitutionality, the tax obligation is the legal order ex tunc, in the sense that non-existent in radice and, therefore, the they can no longer be applied to out- general rule on charges improperly levied standing legal relationships; legal relation- (namely Article 2033 of the Civil Code) ships which have run their full course, would immediately take effect, so that the that is to say those whose effects have action could be brought without reference

I - 4971

OPINION OF MR RUIZ-JARABO — CASE C-231/96

to the procedures for challenging tax cast upon tax assessments not duly challenged assessments, and regardless of the time- within the prescribed period ...'. limits laid down by the tax provisions.

— In conclusion, there is no basis for the 64. There is no foundation, therefore, for the view that in such cases (even where it is Commission's allegation of unequal treat- contended that there was no valid tax ment as between actions for recovery of undue relationship, either original or supervening) taxes based on infringement of a higher- an action for recovery of sums unduly ranking provision, depending on whether that paid provided for by the Civil Code would provision is contained in domestic or in Com- be available, rather than one covered by munity legislation. the specific rules for tax litigation, both substantive and procedural.

I - 4972

EDIS v MINISTERO DELLE FINANZE

The third preliminary question 68. 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, 40and in Johnson, 41the 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 66. The third question, which presupposes an directives in question had not been properly affirmative answer to the previous one, seeks incorporated into national law. to determine the compatibility or otherwise with Community law of national legislation which, in relation to actions for the recovery of taxes unduly paid, sets as the starting point of the three-year time-limit the date of pay- ment of the tax, at which time the Commu- nity directive applicable to it had not been correctly incorporated into national law.

— the same type of national tax (Danish tax on the registration of companies);

72. The Court of Justice chose once more to adopt the last-mentioned solution, reiterating the line of reasoning which I have outlined — the same type of incompatibility with above. Community law (specifically, Directive 69/335) of the national provision gov- erning the charge;

73. First, as a general principle, it pointed out that, in the absence of Community legislation — the same barrier of national time-limits or on the matter, it is for the domestic legal order limitation periods (five years, under of each Member State to regulate proceedings national legislation, reckoned from the for the recovery of sums unduly paid, pro- day of payment of the tax). 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.

71. As in this case, in Fantask the national court, confronted with a dispute of the kind described, asked the Court of Justice 'whether 74. Secondly, after emphasising the compat- ibility with Community law of the setting of reasonable time-limits within which proceed- 42 — Case C-188/95 [1997] ECR I-6783, paragraphs 42 to 52. ings had to be commenced or else be barred,

I - 4974

EDIS v MINISTERO DELLE FINANZE

78. In my opinion that endeavour was mis- conceived. First, because its point of depar- 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- 76. Finally, the Court of Justice concluded gous, since the case-law subsequent to Emmott that 'Community law, as it now stands, does had drawn attention to the singularity of the not prevent a Member State which has not circumstances of that case, which decisively properly transposed [the directive] from affected the solution adopted. At the hearing resisting actions for the repayment of charges the United Kingdom Government stressed in levied in breach thereof by relying on a limi- that respect that — among other things — it tation period under national law which runs was Mrs Emmott's own authorities who urged from the date on which the charges in ques- her not to appeal. O n the contrary, nothing tion became payable, provided that such a prevented the Italian companies from exer- period 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 43 — A joint hearing was held for Case C-231/96 EDIS, C-260/96 SPAC, C-279/96 Ansaldo Energia, C-280/96 Marine Insur- of rights conferred by Community law'. ance Consultant, and C-281/96 GMB and Others.

I - 4975

O P I N I O N OF MR RUE-JARABO — CASE C-231/96

80. That statement — which, obviously, pre- supposes the non-existence of provisions of Community law governing the matter and the existence of a national provision which lays down the time-limit on a non- 82. It is true that, in the exercise of that discriminatory basis — is not rendered invalid power, the Member States — as far as this case is concerned, the Italian Republic — must act in accordance with the requirements 44 — EDIS's own counsel nude this clear at the hearing when he of Article 5 of the Treaty. It is also true that conceded that, as early as 1989 (and thus not only before some conduct on the part of the Italian author- judgment was delivered in Ponente Carni but even before the request for a preliminary ruling was submitted in that ities regarding repayment of the charge at case), another EDIS company linked with his client and cer- tain other Italian companies had taken proceedings to chal- issue in these proceedings, as described in the lenge the charge for entry on the register. Although their submissions of the parties, appears to have actions were dismissed, on substantive grounds, it is clear that they were not denied legal protection. placed in the way of actions for reimburse-

I - 4976

EDIS y MINISTERO DELLE FINANZE

ment more obstacles than might reasonably deriving from the Treaty: its legislative author- be expected, in the light of that article. 45 But ities have abolished the national tax which these preliminary-ruling proceedings cannot was contrary to Community law and expressly be converted into infringement proceedings recognised entitlement to reimbursement of under Article 169 of the Treaty, nor can the it, 46a right which is also safeguarded by the fact be overlooked that the official action Italian judicial authorities, albeit subject to taken by the Italian Republic has been essen- the limitations of the domestic provisions on tially in conformity with the obligations limitation of actions.

I - 4977

OPINION OF MR RUIZ-JARABO — CASE C-231/96

which a right of action to bring proceedings for reimbursement of taxes paid but not due is barred on the expiry of three years after payment, even where that provision totally or partially prevents repayment of the taxes concerned.

I - 4978