C-260/96

1 — Joined Cases C-71/91 and C-178/91 [1993] ECR I-1915. 2. The plaintiff is a limited liability company 2 — OJ, English Special Edition 1969 (II), p. 412. which, under Presidential Decree N o 641 of 3 — The relevant measure was Decree Law N o 331 of 30 August 26 October 1972 (hereinafter 'DPR 641/1972'), 1993, converted into Law N o 427 of 29 October 1993. 4 — To that effect, see the judgments of the Corte di Cassazione paid to the Italian Treasury, over a period of (First Civil Chamber) of 28 March 1994 (No 2992); of 23 years not specified in the order for reference, November 1994 (No 9900), and of 23 February 1996 (Nos 4468/96 and 3458/96), the latter having been delivered by the the sum of LIT 93 000 000 in respect of the Combined Chambers (Sezioni Unite). Similarly, in the second paragraph of the grounds of judgment N o 56 of 24 February annual tassa di concessione governativa 1995, the Corte Costituzionale (Constitutional Court), after outlining the problematical legislative background to the (administrative charge) for the registration of charge, considered that it should be abolished as regards pre- companies in the register of companies. vious years (1993): 'Since the charge was improperly levied by the Italian Sute, in breach o f 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 * Original language: Spanish. legal order'.

The answer to the question

7. The Italian tax administration appealed against the judgment given at first instance. The Corte d'Appello di Venezia, the court of competent jurisdiction, decided to seek a pre- liminary ruling from the Court of Justice on 8. Since this question is analogous to those the following question: submitted by the Tribunale Civile di Genova in Case C-231/96 EDIS, on which I am deliv- ering my Opinion today, it would have been possible to give this Opinion merely by refer- ring to the text of another. But, since the cases have not been joined and the national court and the parties to the main proceedings are 'In proceedings before an Italian court for different, I have chosen to repeat at least the reimbursement of charges paid pursuant to same basic considerations in both cases, provisions of national law which, in view of including if appropriate a special mention of the interpretation given by the Court of Jus- or reference to the Opinion in EDIS regarding tice in Joined Cases C-71/91 and C-178/91 certain details common to both cases.

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OPINION OF MR RUIZ-JARABO — CASE C-260/96

9. The question submitted in these proceed- or three years if, in both cases, the applica- ings has two aspects: tion of either period started before the direc- tive was properly transposed.

(a) First, it is concerned with the dual approach whereby ordinary actions for (i) The two different sets of rules reimbursement of sums paid but not due are subject to a limitation period of ten years, and specific actions for the reim- bursement of taxes are subject to a time- limit of three years.

12. It must be emphasised at the outset that, under Italian law, the time-limit mentioned 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 action which was unduly levied, whether the 10. Those issues correspond to the second reason for its illegality is attributable to a and third questions referred in EDIS. How- national or a Community provision. ever, in view of the way in which the order for reference is framed in this case, what is seen by the Corte di Appello as decisive is not so much the problem of the duality of treatment as that of the commencement of the time-limit before the proper transposition of the directive. Thus, in the abstract, it would 13. As I pointed out in describing the national be irrelevant whether the time-limit were ten legislation applicable to actions for reimburse-

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MINISTERO DELLE FINANZE v SPAC

ment of charges paid but not due, 5 the second which no action may be brought which differ paragraph of Article 13 of DPR 641/1972 is according to the area of law involved, pro- not confined to charges paid in breach of vided that they are applied without distinc- Community law: on the contrary, it provides tion to rights deriving from national provi- that a taxpayer may claim repayment of any sions and to those deriving from Community charge for Government action paid in error, provisions. within a time-limit of three years as from the day of payment. Similar periods are pre- scribed for actions for reimbursement of other sums levied by customs authorities.

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OPINION OF MR RUIZ-JARABO — CASE C-260/96

18. Like all the Member States that have sub- — In other cases, actions for the repayment mitted observations in these proceedings, I of charges unduly paid must be brought see no reason whatever for rejecting the view before the ordinary courts, mainly in the that a national legislature is entitled to impose form of claims for the refund of sums paid for actions to recover tax revenue unduly paid but not owed. Such actions are available time-limits for commencing proceedings for varying lengths of time, in some cases which differ from those applicable to similar for the limitation period laid down under actions between private individuals. the general law.

9 — Case 33/76 Rewc [1976] ECR 1989 and Case 45/76 Comet [1976] ECR 2043. 8 — Case 61/79 [1980] ECR 1205. 10 — Case C-261/95 [1997] ECR 1-4025.

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MINISTERO DELLE FINANZE v SPAC

cations for reimbursement of duties unduly 24. Finally, in two judgments of 17 July 1997, paid, where there are no grounds of force Texaco and Olieselskabet Danmark 12 and majeure justifying an exception'. Haahr Petroleum, 1 3the 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 virtually impossible or excessively difficult the exercise of rights conferred by Commu- nity law, even if the expiry of those periods 22. The reply, given in the judgment of 9 necessarily entails the dismissal, in whole or September 1989 in Bessin and Salson, 11 is in part, of the action brought'. Consequently, perfectly applicable to the present case since it held that the limitation period of five years the legal situations are patently analogous. applied by Danish law to applications for the The national provisions at issue in that case reimbursement of national taxes contrary to were those of the French Customs Code, Community law was compatible with Com- which imposed a time-limit of three years for munity law, even where it wholly or partly claims for the recovery of unduly paid import prevented the requested refund. duties: those provisions departed from the general limitation period applicable where no other was specified, under the French Civil Code, to claims for the refund of sums unduly paid.

the second question must uphold the com- have focused on the impact on this problem patibility of that provision with Community- of the judgment of the Court of Justice of 25 law. July 1991 in Emmott. 15 In that judgment the Court of Justice stated that 'until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred on him by the provisions of the directive and 26. As regards the other aspects of this ques- that a period laid down by national law within tion which were not directly mentioned by which proceedings must be initiated cannot the national court, but by the Commission in begin to run before that time'. 16 its observations, 14 I refer to what I have already said in my Opinion in EDIS (points 51 to 65).

selskabet Danmark, cited above. In them it — the same type of incompatibility with again rejected application of the principle laid Community law (specifically, Directive down in Emmott. In both cases a claim for a 69/335) of the national provision gov- refund — based on infringement of Article 95 erning the charge; of the Treaty — had been dismissed by the Danish authorities in reliance on a national provision under which legal proceedings to secure the refund of taxes unduly paid becomes barred after a period of five years reckoned from the date of payment. The Court of Jus- tice repeated that, even where that provision — the same barrier of national time-limits or wholly or partly prevented the repayment of limitation periods (five years, under the taxes in question, its application to those national legislation, reckoned from the two cases was not contrary to Community day of payment of the tax). law.

32. As in this case, in Fantask the national court, confronted with a dispute of the kind described, asked the Court of Justice 'whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery 31. Finally, two months before the hearing in of charges levied in breach of the Directive as this case the Court of Justice gave judgment long as that Member State has not properly in Fantask, 19 which is particularly important transposed the Directive'. The submissions of in the present context since the factual and the plaintiff companies and of the Commis- legal aspects of that case and this were similar. sion were also based on the rule in Emmott, Fantask was concerned with the repayment the application of which was argued against of sums relating to: by the Governments that submitted observa- tions.

34. First, as a general principle, it pointed out tunity of asserting her right to equal treat- that, in the absence of Community legislation ment under a Community directive. on the matter, it is for the domestic legal order of each Member State to regulate proceedings for the recovery of sums unduly paid, pro- 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. 37. Finally, the Court of Justice concluded 'Community law, as it now stands, does not prevent a Member State which has not prop- erly transposed [the directive] from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question 35. Secondly, after emphasising the compat- became payable, provided that such a period ibility with Community law of the setting of is not less favourable for actions based on reasonable time-limits within which proceed- Community law than for actions based on ings had to be commenced or else be barred, national law and does not render virtually in the interests of legal certainty which pro- impossible or excessively difficult the exercise tects both the taxpayer and the Administra- of rights conferred by Community law.' tion, it stressed that it cannot be considered that such time-limits make it virtually impos- sible or extremely difficult to exercise rights conferred by Community law, even where, by definition, failure to comply with them means that the action will fail wholly or in part. Specifically, the period of five years laid down by Danish law was reasonable and was 38. In view of the clarity of the terms used applied in the same way to actions based on by the Court and of the evident analogy Community law as to those based on domestic between the factual and legal situations in law. Fantask and this case, the Commission decided, at the hearing, not to adhere to its earlier position and conceded that the ques- tion had been definitively settled by the judg- ment in Fantask. The plaintiffs in the main proceedings, on the other hand, endeavoured on the same occasion 20 to highlight differ- ences between Danish and Italian law which made it inappropriate to apply the rule in 36. Thirdly, it again rejected the application Fantask to the present case. 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 20 — 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 entirely depriving the plaintiff of any oppor- ance Consultants, and C-281/96 GMB and Others.

39. In my opinion that endeavour was mis- relied on to resist actions, founded on Com- conceived. First, because its point of depar- munity law, for the repayment of taxes ture was wrong: rather than finding alleged improperly levied, may start to run from the differences between Fantask and that case, time at which they were paid and not from what it needed to prove was that the situa- the time at which the State properly trans- tions in Emmott and that case were analo- posed the directive into national law. gous, since the case-law subsequent to Emmott had drawn attention to the singularity of the circumstances of that case, which decisively affected the solution adopted. At the hearing the United Kingdom Government stressed in that respect that — among other things — it was Mrs Emmott's own authorities who urged her not to appeal. O n the contrary, nothing 41. That statement — which, obviously, pre- prevented the Italian companies from exer- supposes the non-existence of provisions of cising their right of appeal against the tax Community law governing the matter and assessments made against them. 21 the existence of a national provision which lays down the time-limit on a non- discriminatory basis — is not rendered invalid by the fact that, logically, the expiry of that period prevents repayment of the tax paid. That is an inherent feature-of a time-limit of that kind which, inspired by the principle of legal certainty, does not thereby detract from the right to judicial protection: in the period of three years following payment, the possi- bility of challenging the tax assessment was 40. Second, and regardless of the foregoing open to the taxpayers. point, the alleged differences between one national legislation and another are irrelevant as regards the repercussions for this case of the rule in Fantask. Whether the time-limit is of five or of three years and whether it is laid down in a general rule or a special rule appli- cable to a specific class of taxes and whether or not there has been a change in the case-law 42. It might be thought that that solution is on the interpretation of that pre-existing pro- not particularly satisfactory from the stand- vision, what is important is that the Court of point of taxpayers who have been obliged t o Justice has confirmed that the time-limit — pay a tax contrary to Community law. And of five or of three years — which can be that is indeed the case. A possible solution, albeit one not without serious difficulties, would be to establish uniform Community 21 — EDIS's own counsel mude this clear at the hearing when he rules on this point, harmonising the various conceded that, as early as 1989 (and thus not only before national regimes. Until such legislation exists, judgment was delivered in Ponente Carni but even before the request for a preliminary ruling was submitted in that it is for the Member States to determine, case), another EDIS company linked with his client and cer- tain other Italian companies had taken proceedings to chal- under the conditions amply described above, lenge the charge for entry on the register. Although their the requirements for actions for reimburse- actions were dismissed, on substantive grounds, it is clear that they were not denied legal protection. ment.

(2) C o m m u n i t y l a w d o e s n o t preclude application t o a claim for r e i m b u r s e m e n t of a tax w h i c h is i n c o m p a t i b l e w i t h a directive of a national p r o v i s i o n u n d e r

22 — Inter alia, the need to bring legal proceedings in order t o 23 — Article 61 of Decree-Law N o 331 of 30 August 1993 lays secure a right enforceable against the tax authorities, a down the procedure for reimbursement of sums improperly requirement which may also lead to an unjustified increase paid in that respect, either by means of an administrative in litigation — and, thereby, a delay in the administration of claim (for sums paid in respect of the 1992 tax year) or by a justice — to the detriment of taxpayers. claim for compensation (for those paid in respect of 1993).

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MINISTERO DELLE FINANZE v SPAC

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.

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