C-343/96

OPINION OF MR RUIZ-JARABO — CASE C-343/96

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 28 April 1998 *

1. The Pretore di Bolzano (Italy) has referred to the administration for repayment of the to the Court of Justice for a preliminary relevant amount. Since its request was not ruling six questions on the impact of the pro­ acceded to, it brought proceedings before the visions and principles of Community law on Pretore di Bolzano, who had territorial juris­ the national legal rules — Italian Law No 428 diction, for a payment order under Article of 29 December 1990 (hereinafter 'Law No 633 of the Code of Civil Procedure to secure 428') — 1 which govern the repayment of cer­ reimbursement. tain taxation improperly levied by the Italian administration.

4. The Pretore, as a preliminary to giving Facts, procedure and preliminary questions judgment, referred the following questions to the Court of Justice for a preliminary ruling:

2. Do the fundamental principles of the with Community law — of a procedural Community order preclude the introduc­ provision such as Article 29 of Law No tion by a Member State — in a limited 428, which specifically reduces the pos­ manner and with reference only to a sibilities of bringing proceedings for specific sphere consisting of a homog­ recovery of charges which were wrongly enous category of fiscal levies made up levied in breach of Community law? in particular of charges linked to the Community order — of special dero­ gating provisions to restrict and limit the right to recovery of sums unduly paid, thus derogating from the general condi­ tions for recovery of sums unduly paid laid down in Article 2033 of the Civil Code? In particular, may the principle of 4. Is such a law as that — supposedly non-discrimination .be understood in a introduced in order to bring national law restrictive sense, and may it thus be con­ into line 'with the precepts of the Court sidered that a provision of a Member of Justice — which was passed three- State such as the second paragraph of and-a-half years late according to the Article 29 of Law No 428 of 29 December Court judgments in question, thus fur­ 1990 complies with that principle, simply ther unjustly enriching the State respon­ because the conditions laid down therein sible for the delay, compatible with Com­ for reimbursement of fiscal charges linked munity law and, in particular, with the to Community law, although restrictive Court's findings as to unacceptable in comparison with the general rules of requirements of proof in Case 199/82 ordinary law, are however less onerous San Giorgio, cited above? In particular, in comparison with the special condi­ are the interpretation and application of tions for reimbursement laid down in Article 29 compatible with Community the third paragraph of Article 29? law, on the basis of the assumption that, "it being a well-known fact that con- sumer taxes are passed on", presumptive evidence is deemed to be sufficient proof of passing on and therefore for the claim for reimbursement to be dismissed?

— Article 29(2) provides that 'import cus­ The national legislative context and the Com- toms duties, manufacturing taxes, con­ munity legislative context sumption taxes, the sugar price supple­ 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'; 2 5. Article 29 of Law No 428, provides under, the heading 'Repayment of taxes considered

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the tax return for the year in question, States, including products originating in non- failing which it shall be inadmissible member countries which are in free circula­ tion in the Member States.

— Article 29(7) provides that Article 29(2) is Consideration of the questions to apply even where the reimbursement relates to amounts paid before the entry into force of the Law (27 January 1991).

7. In considering the questions, I shall group them according to their content, even though — Article 29(8) provides that paragraph 4 is this does not wholly coincide with the order to apply from the fiscal year in which the in which they are set out in the order for ref­ Law enters into force. erence:

8. The first and second questions submitted 11. The terms of the question are analogous by the national court relate to the content of to those used by other Italian courts in rela­ the internal rule as such — that is to say, dis­ tion to the three-year time-limit applied to regarding its temporal effect — and the pos­ claims for refund of the annual government sibility that it may be contrary to Commu­ administrative charge for entry of companies nity law. My analysis of them must logically, on the commercial register, in preliminary- in my view, come before consideration of the ruling proceedings in which I delivered my issue of the retroactivity or otherwise of that Opinion recently (Case C-231/96 EDIS; Case rule, with which the third question is con­ C-260/96 SPAC; and Joined Cases C-279/96 cerned. to C-218/96 Ansaldo and Others). The issue is, ultimately, whether it is permissible for actions against the revenue authorities for recovery of overpayments to be subject to time-limits or limitation periods different from those laid down for similar proceedings between private persons.

9. Article 29(1) of Law No 428, transcribed above, reflects a clear legislative intention: to apply the same five-year time-limit imposed by the customs legislation to every kind of claim and right of action for recovery of sums paid in respect of customs operations. So far 12. As I pointed out in those my Opinions, as is relevant here, it is of little importance I consider that no provision or principle of that the expression used in the Law ('the five- Community law prevents a national legisla-

13. The national legislature is free to impose limitation periods or time-limits in the field 16. The legitimacy of such a distinction was, of taxation and there is no need for them to moreover, upheld by the Court of Justice in coincide with those laid down for other rela­ paragraphs 22 to 25 of its judgment of 27 7 tionships under civil law. No provision or March 1980 in Denkavit Italiana. After rec­ principle of Community law obliges it, for ognising that Community law does not nec­ such purposes, to treat tax relationships in the essarily require a uniform rule common to all same way as relationships inter privatos. the Member States relating to formal and substantive conditions for contesting or recov­ ering charges contrary to that law, and that the way in which the problem is dealt 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 14. Moreover, the Italian legal order sets very area: 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 Civile 'except where otherwise provided by law' and there are numerous legal provisions •which in fact impose shorter periods for the barring of certain rights or the exercise of cer­ — In certain cases, objections to or claims tain rights of action. 6 for the recovery of charges unduly levied are subject, under national law, to specific temporal and formal conditions, both for complaints addressed to the tax authori­ 6 — In the Italian Codice Civile itself, Article 2947 et seq., under ties and for legal proceedings. the headings 'Short limitation periods' and 'Deemed 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. 7 — Case 61/79 [1980] ECR 1205.

19. The reply, given in the judgment of 9 10 17. The Court immediately went on to say September 1989 in Bessin and Saison, is — reiterating what it held in Rewe and Com- perfectly applicable to the present case since et 8— that, from the Community point of the legal situations are patently analogous. view, the conditions to be met by the various The national provisions at issue in that case national systems regarding claims for recovery were those of the French customs code, which of charges unduly paid the illegality of which imposed a time-limit of three years for claims derived from Community law were those for the recovery of unduly paid import duties: already mentioned: there should be no dis­ those provisions departed from the general crimination and the rights of action concerned limitation period applicable, where no other should not be merely illusory. They are the was specified, to claims for the refund of sums expression, according to the recent judgment unduly paid. of 10 July 1997 in Palmisani, 9of the 'prin­ ciple of equivalence' (equivalence with the requirements laid down for similar claims of a domestic nature) and of the 'principle of effectiveness' of Community law, respectively.

20. In its ruling on that question, the Court of Justice, after referring to the requirement 18. In a case similar to this one, the Court of of non-discriminatory application of national Justice had an opportunity to clarify its ear­ legislation, as compared with proceedings in lier doctrine even further in giving a prelimi­ purely national disputes of the same kind, nary ruling on a question by which the national and stating that such legislation must not court sought 'in substance to ascertain the make it impossible in practice to exercise the extent to which it is contrary to the general rights conferred by Community law, held that principles of Community law for national the three-year limitation period reflected 'a rules to provide for a mandatory time-limit legislative choice which does not have the of three years for the submission of all appli­ effect of undermining the aforesaid require­ ment'.

22. There would thus be discrimination if the Italian provision barring actions for reim­ 'Article 29(1) of Law No 428 of 1990 ... bursement of charges unduly paid laid down applies a single set of rules to the refund of different time-limits according to the origin payments unduly collected in respect of a — in national or Community law — of the large number of taxes (indirect taxes on prop­ obligation to repay them. That would be the erty), treating in the same way, for that pur­ case if the legally prescribed period for pose, both duties collected under national claiming a refund of the charge, on the ground provisions that are incompatible with Com­ of incompatibility with Community law, were munity provisions and import customs duties shorter than the legally prescribed period for and levies on manufacturing and consump­ claiming refund of the same charge on any tion, and so forth, thereby avoiding for refunds ground of national law. But since that is not in the Community sphere the creation of a the case and the time-limit laid down by jus singulare which would make the exercise Article 29(1) of Law No 428 applies without thereof less easy'. distinction to all actions for repayment of the charge, whatever their basis, the answer to

13 — The judgment bears the number 12024 (Massimario del Foro Italiano 1992) and corresponds to General List No . 4273/91. Sometimes it is cited by reference to the date appearing in 11 — Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263, its text (10 April 1992) and sometimes by reference to the paragraphs 45 to 49. date on which it was entered in the Registry (6 November 12 — Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53. 1992).

25. As pointed out by the Commission and, to some extent, by the French Government, in their observations, there is a degree of con­ fusion on this point. The Commission goes so far as to say that 'from the point of view (b) after enactment of paragraph 1 of Article of the temporal effects of the provision at 29, the peremptory five-year time-limit issue, the situation is characterised by perfect (no longer a limitation period) applies to confusion: the Law prescribes one thing (it all applications and actions available to interprets retroactively an earlier provision ...) secure refunds of any sum paid in con­ but the judicial authorities of the Republic, 15 nection with customs operations; including the highest courts, apply another (the rule of non-retroactivity, at least as regards applications for refunds submitted prior to the entry into force of Law No 428)'. 14 — 'On the question of the limitation period, this Court has expressed its view on numerous occasions to the effect that — according to the wording of the provision prior to the entry into force of paragraph 1 of Article 29 of Law No 428 of 29 December 1990 — Article 91 of the Consolidated Ver­ sion of the customs laws (concerning the five-year limita­ tion period) related only to cases of refunds of sums paid in excess of what was due as a result of errors of calculation or misapplication of the tariff; whereas where — as in this case — wrongly levied revenue was involved (because the Admin­ istration had collected sums not owing) the limitation period was the ordinary period of ten years (judgments No 2217 of 1989 and No 2464 of 1987).' 15 — The appeal (in cassation), however, must be seen in the light of the subsequent legislation, namely paragraph 1 of Article 26. The Corte di Cassazione, in its judgment 29 of Law No 428 of 29 December 1990; the latter, refer­ ring to Article 91 of the Consolidated version of the cus­ of 6 November 1992, cited above, confirms toms laws, mentioned the peremptory five-year time-limit the retroactive nature of the provision, giving (no longer a limitation period) and declared it applicable to all applications and actions available to secure refunds of any rise to its non- application. The reasoning of sum paid in connection with customs operations'.

29. But the problem affects not only claims already submitted before 27 April 1991 but also those submitted after that date where they concerned taxes paid before the new Law entered into force. That is precisely what happened in Dilexport's case: the customs duties had been (wrongly) paid in 1988, before the enactment of Law No 428, as a result of which any claim it might have was then legally admissible within the next ten years (ordinary 27. Although the application pro futuro of ten-year limitation period). However, its claim Article 29 of Law No 428 does not seem to did not in fact arise until 1991. me to be contrary to Community law, as I have stated earlier, doubts arise as to its appli­ cation to persons entitled to the repayment of taxes unduly paid at an earlier stage, in that it might involve subjecting them to less favour­ able conditions for the exercise of their right than those previously enjoyed by them. 30. The Court of Justice held in its judgment 17 in Deville that '[a] national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation 16 — 'Nevertheless, in interpreting that provision, this Court has declared (judgment No 7248 of 1991) that it is totally and is incompatible with the Treaty, adopt a pro­ fully innovative, in that it has converted a limitation period into a peremptory time-limit and has extended the applica- cedural rule which specifically reduces the tion of Article 91 to cases (such as revenue levied in breach possibilities of bringing proceedings for of Community law) certainly not covered by the previous wording of that article. Therefore, even if it is admitted that recovery of taxes which were wrongly levied the legislature intended making that provision retroactive, the latter, as already stated on the basis of arguments sub- under that legislation. It is for the national stantially confirmed by the Constitutional Court (Order No court to determine whether the procedural 444 of 1991) must not be applied in relation to applications for repayment of revenue levied in breach of Community law, since it has made it more difficult to exercise the right to repayment (given the impossibility of interrupting peremp- tory time-limits) and can even cause it to disappear (since decisions concerning the barring of rights of action are made 17 — Case 240/87 Deville v Administration des Impôts [1988] ex officio),' ECR 3513.

33. I do not think it is necessary, at this point, to consider whether a provision which reduces the time-limits for bringing actions that have 32. In the present case, on the other hand, not yet been commenced but could be under the previous legislation may be regarded as retroactive stricto sensu. As is well known, 18 — The same principle had already been enunciated in the judg­ the views of legal writers on this point differ, ment of 2 February 1988 in Case 309/85 Barra [1988] ECR as do the solutions adopted in laws and by 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 v [1985] ECR 593) to those who had submitted their claim before the latter judgment was delivered. 20 — The same view was expressed at the hearing by the repre­ 19 — Case 112/84 [1985] 1367. sentative of the Italian Government.

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38. First, the national provision does not affect just one specific tax but is clearly a measure generally extending an existing set of legal rules (as laid down by the Consolidated Version of the customs laws). It is true that, 35. The protective intent underlying Deville by virtue both of its heading and of its con­ involves respecting the status quo ante of the tent, Article 29 of Law No 428 relates expressly taxpayers who had relied on the continuing to the repayment of taxes that are incompat­ availability of legal remedies against improper ible with Community law. But it is also true taxation. Such remedies should not be under­ that the measure concerned is a generalising mined precisely when the tax has been declared measure which seeks specifically to place — by judicial decision or by legislation — to actions for recovery based on infringements be unlawful, in that it is contrary to Com­ of Community law on the same footing as munity law. similar actions based on national law, and also to apply 'a single set of rules to the refund of payments unduly collected in respect of a 22 21 — Under Article 252 of the implementing and transitional pro­ large number of taxes ...'. visions of the Italian Civil Code (Royal Decree No 318 of 30 March 1942), where the exercise of a right is subject to observance of a shorter time-limit than that laid down by the earlier Law, the new time-limit also applies to the exer­ cise of rights that arose earlier, but starts to run as from the entry into force of the new provision. Similar rules are found 22 — See in that connection the citation from a judgment of the in numerous civil codes and similar legislation. Corte de Cassazione in point 19 of this Opinion.

42. The premisses on which the court relies, in relation to the domestic legal situation, are rejected by the Italian Government: in the 40. To summarise, the circumstances of this latter's opinion, the passing on of consumer case are not analogous to those of Deville and taxes has not always been characterised in Barra and the dicta of the Court of Justice in Italian law as an 'accepted fact', nor has reli­ those cases must not be interpreted so strictly ance on the evidence of presumptions resulted as to prevent any legislative change to the in the 'systematic exclusion of claims for rules for proceedings to recover improper repayment'. levies introduced after a judgment of the Court of Justice. So long as the change in the law sufficiently maintains the availability of proceedings to secure the repayment of those taxes (for a period of three years, for example, as in this case), I do not believe that it should be regarded as incompatible with Commu­ nity law. 43. The issue being framed in those terms, and given that the wording of Article 29 of Law No 428, to which the national court refers in the third question, makes no refer­ ence whatsoever to a legal presumption of 23 passing on, I fear that the answer to be given by the Court of Justice cannot in this The third and fourth preliminary questions case go further than repeating its earlier

23 — Article 29(2) of Law No 428 provides that customs duties are to be repaid, 'save where the burden thereof has been passed on to others'. The absence of any presumption is obvious, in clear contrast to the earlier Italian provision, examined in the Court's judgment in Case 199/82 San Giorgio [1983] ECR 3595. The latter provision (Article 10 of Decree-Law No 430 of 10 July 1982) expressly provided 41. In its fourth and fifth questions, the for a legal presumption of passing on, solely on the ground that the goods subject to the customs charge or tax on national court inquires about the possibility manufacturing or consumption had been transferred, pro- cessed, delivered or otherwise dealt with. The 1990 Italian of relying on presumptions in order to deter­ legislature, having regard to the San Giorgio judgment, mine whether an undertaking, after paying removed that legal presumption from the new law.

— First, that 'the entitlement to the repay­ ment of charges levied by a Member State in breach of Community law is a conse­ quence of, and an adjunct to, the rights 45. As regards the procedural aspects of the conferred on individuals by the Commu­ question, the statement made by the Court of nity provisions prohibiting such charges Justice in Bianco and Girard, cited above, .... The Member State is therefore in prin­ remains valid: 'in this respect it must be ciple required to repay charges levied in stressed that, even though indirect taxes are breach of Community law'. designed in national law to be passed on to the final consumer and in commerce are nor­ mally passed on in whole or in part, it cannot be generally assumed that the charge is actu­ ally passed on in every case. The actual passing on of such taxes, either in whole or in part, — Secondly, and as an exception to that prin­ depends on various factors in each commer­ ciple, that 'the protection of the right so cial transaction which distinguish it from other guaranteed by the Community legal order transactions in other contexts. Consequently, does not require the repayment of taxes, the question whether an indirect tax has or has not been passed on in each case is a ques­ tion of fact to be determined by the national court which may freely assess the evidence. 24 — Joined Cases C-192/95 to C-218/95 [1997] ECR I-165. However, in the case of indirect taxes, it may 25 — Case 68/79 [1980] ECR 501. 26 — Joined Cases 331/85, 376/85 and 378/85 [1988] ECR 1099. not be assumed that there is a presumption

47. The appraisal of such evidence is a matter reserved absolutely to the national court, 50. The Court of Justice has given its views which to that end may assess the evidence by on legal presumptions of passing on and has all means available to it under its procedural held them to be incompatible with Commu­ law. They without doubt will include cau­ nity law. The same must apply to a general tious reliance upon presumptions, in certain and abstract presumption of passing on which, cases: on the basis of a proven fact, and pro­ albeit having no status in law, is established vided that there is a precise and direct link by judicial decision in view of the lack of between that fact and that which is sought to legal provisions. As I have said, that does not be proved, the court may, respecting the rules mean that, in each specific case, the compe­ as to reasonableness, 'presume' for procedural tent judicial authorities may not rely on pre­ purposes that the latter fact is substantiated. sumptions as an additional means of proof in reaching a view as to whether a tax has actu­ ally been passed on.

48. The acceptance of presumptions of that kind, which differ from those generally pro­ 51. Perhaps an example will be helpful: a vided for by law as praesumptiones juris et de national court could not presume, without jure or praesumptiones juris tantum, is more information, that a particular under­ common to most legal systems and, in some taking has passed on to its customers all the degree, inherent in the judicial function: in indirect taxes previously paid by it to the rev-

enue authorities; but, if it were proved to the income of the undertaking, the claims must court (by means of accounting, economic or be notified to the tax office which received other reports or other forms of evidence) that the tax return for the year in question, failing the undertaking in question, in particular years which they will be inadmissible. and in respect of particular products, in gen­ eral passed on the tax, the court could, when adjudicating on a specific case arising in that period, rely on the 'presumption' that on that occasion too the tax had been passed on. 54. The reason for and the fiscal aim of this requirement are obvious: if the undertaking described as an 'expense' the amount of the tax unduly paid, deducting it from its income for a tax year and determining its taxable income on that basis, it is logical that, when a claim for the repayment of that tax is pur­ 52. In short, I am of the opinion that the sued, the revenue authority should be apprised answer to be given by the Court of Justice of it and be in a position to take appropriate should reiterate its previous rulings: it is for action. the national court in each case to consider whether or not a tax has been passed on as a question of fact in relation to which the evi­ dence must be freely assessed and for the determination of which all forms of evidence available under national law are admissible. 55. It is true that the Italian legislature could Nevertheless, the national court may not have achieved the same end by less rigorous affirm that, in the case of indirect taxes, there measures from the procedural point of view: is a general presumption to the effect that the ultimately, claims for the repayment of taxes taxes have been passed on and, therefore, that improperly levied are made against the admin­ it is incumbent on the taxpayer to prove the istration, which will necessarily have notice contrary. of them through the office of the Avvocatura dello Stato or any other of its representatives for legal proceedings, for which reason it seems otiose to require claimants also to give specific notice of their claims to another administrative agency. But it is not within the The sixth question jurisdiction of the Court of Justice to give views on the convenience or appropriateness of measures of that kind.

57. On the contrary, it would be incompat­ ible with Community law for that measure to be extended retroactively both to claims for repayment of taxes submitted to the admin­ istration and to judicial proceedings brought 27 against the administration for the same 59. Judgment No 10697 of the Corte di Cas­ reason, where both occurred before the entry sazione of 29 October 1997 recognises that into force of the law. Such a retroactive exten­ the duty to give notice to the tax administra­ sion would make it unworkable to bring pro­ tion of claims for the repayment of taxes ceedings for repayment, in a manner already levied in breach of Community law relates proscribed by Community case-law, since it only to tax years following the entry into the would purport to impose ex post facto a force of Law No 428, and not prior years. In requirement which, when the legal proceed­ reaching that conclusion, it relies on the fact ings were started or the administrative claims that any other interpretation would under­ submitted, did not have to be fulfilled and is, mine not only Italian constitutional case-law subsequently, impossible to comply with. but also the case-law of the Court of Justice regarding the principle of effectiveness of judi­ cial protection.

58. Article 29(8) provides that the require­ ment to give notice to the tax office '... is to apply from the fiscal year in which this Law enters into force'. Although the interpretation 60. Since, therefore, there is no risk of retro­ active application and there are no doubts as to observance of the principle of equivalence, 27 — There has been some debate, reflected in the submissions of the plaintiff, as to whether the interpretation of the term the obligation contained in the provision in 'domanda di rimborso' should cover only legal proceedings question does raise not any problems from in the strict sense or also claims for repayment submitted through administrative channels. the Community law point of view.

(3) It is for the national court in each case to consider whether or not a tax has been passed on as a question of fact in relation to which the evidence must be freely assessed and for the determination of which all forms of evidence avail­ able under national law are admissible. Nevertheless, the national court may not affirm that, in the case of indirect taxes, there is a general presumption to the effect that the taxes have been passed on and, therefore, that it is incumbent on the taxpayer to prove the contrary.

(4) Nothing precludes national law from requiring that claims for repayment of taxes paid when not due, on the ground that they are contrary to Community law, be notified to the relevant tax authorities, failing which such claims become inadmissible. Such inadmissibility may not be retroactive, that is to say it may not apply to claims made before that entry into force of the legal provision in question.

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