C-216/99

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capital duty or the stamp duty on securities (c) an increase in the capital of a capital might frustrate the purpose of the measures company by contribution of assets of provided for in this Directive and those any kind; taxes should therefore be abolished.'

(d) an increase in the assets of a capital company by contributions of assets of 5. According to Article 3(1) of Directive any kind, in consideration, not of 69/335, capital companies within the shares in the capital or assets of the meaning of the directive include limited company, but of rights of the same partnerships with share capital (società per kind as those of members, such as azioni and società in accomandita per voting rights, a share in the profits or a azioni) and private limited companies (so- share in the surplus upon liquidation; cietà a responsabilità limitata).

6. Article 4 provides inter alia:

2. The following transactions may be sub- ject to capital duty: ' 1 . The following transactions shall be subject to capital duty:

(d) the extension of the period of existence (d) a loan taken up by a capital company of a capital company.' with a member or a member's spouse or child, or a loan taken up with a third party, if it is guaranteed by a member, on condition that such loans have the same function as an increase in the company's capital. 7. Articles 5 and 6 regulate the basis of taxation for the various types of situation described.

3. Formation, within the meaning of paragraph 1(a), shall not include any alter- ation of the constituent instrument or 8. Article 7, which was amended by Coun- regulations of a capital company, or in cil Directive 85/303/EEC of 10 June particular: 1985, 5 largely provides for exemptions from capital duty.

(a) the conversion of a capital company into a different type of capital com- 9. Article 10 of Directive 69/335 provides pany; inter alia:

(b) the transfer from a Member State to 'Apart from capital duty, Member States another Member State of the effective shall not charge with regard to companies, centre of management or of the regis- tered office of a company, firm, associ- ation or legal person which is con- 5 — OJ 1985 L 156, p. 23.

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'... Article 12 of the Directive must be 6 — Joined Cases C-71/91 and C-178/91, cited in footnote 3 above. interpreted as meaning that duties paid by

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way of fees or dues referred to in State may impose flat-rate charges and fix Article 12(1)(e) may be payment collected their amount for an indefinite period, by way of consideration for operations provided that it checks at regular intervals required by law in the public interest such that they continue not to exceed the aver- as, for example, the registration of capital age cost of the registration at issue.' companies. The amount of such duties, which may vary according to the legal form taken by the company, must be calculated on the basis of the cost of the transaction, which may be assessed on a flat-rate basis.'

B — National law

13. In its judgment in Fantask, 7 the Court defined its interpretation of Article 12 as 1. General development of the legislation follows:

16. It is clear from the files that the terms 'incorrectly' and 'without legal basis' are construed differently in Italian legal litera- 19. Article 3(138) of Law No 549 of ture and case-law. 28 December 1995 finally abolished the annual charge in full.

17. Article 3 of Decree-Law No 853 of 19 December 1984, 9converted into a law 20. Judgments of both the Italian Consti- by Law No 17 of 17 February 1985, 10 tutional Court and the Court of Cassation established, among other things, an annual confirmed that the payments made by charge for maintaining an entry in the Italian companies in the years between register of companies. Following the judg- 1985 and 1992 were not due. ment in Ponente Carni, that charge was held to be incompatible with Article 10 of Directive 69/335.

21. In its judgment No 3458 of 23 Feb- ruary 1996, however, the Italian Court of Cassation ruled that the reimbursement of 18. In order to ensure that Italian legis- improperly paid charges was covered by lation would, in future, be compatible with Article 13(2) of Decree No 641/72. Accord- the principles of Community law laid down ing to that provision, only those companies in Ponente Carni, Article 61 of Decree-Law which have applied for a refund within the No 331 of 30 August 1993 1 1 (hereinafter: time-limit fixed by Article 13 of Decree Decree No 331/93), subsequently con- No 641/72 may claim reimbursement of the verted into a law by Law No 427 of charge in question which they have paid. 29 October 1993, 12 reduced the regis- tration charge to ITL 500 000 for all

2. Companies which paid, in the years referred to in paragraph (1), the adminis- trative charge for the entry of documents on the register of companies and the annual charge provided for in Article 3(18) and '1. Article 61(1) of Decree-Law No 331 of (19) of Decree-Law No 853, converted, 30 August 1993, converted, with amend- with amendments, into Law No 17 of ments, into Law No 427 of 29 October 17 February 1985, may obtain reimburse- 1993, must be interpreted as meaning that ment of the difference between the sums the administrative charge for registration of paid and the sums payable under documents on the register of companies paragraph (1) above, provided they submit referred to in Article 4 of the scale annexed an application for reimbursement within to Decree No 641 of the President of the the time-limits laid down in Article 13 of Republic of 26 October 1972, as amended Decree No 641 of the President of the by the said Article 61, is payable for the Republic of 26 October 1972.' years 1985,1986,1987,1988,1989,1990, 1991 and 1992, in the sum of ITL 500 000 for registration of the instrument constitut- ing the company and the following annual flat-rate sums for registration of other company documents, for each of the years 23. Therefore — and with retroactive from 1985 to 1992: effect for the period between 1985 and 1992 — that provision, firstly, fixed a standard charge for the registration of constituent instruments and, secondly, pro- vided for an annual flat-rate charge for other transactions, the amount of which depended on the type of company. (a) for limited partnerships with share capital ITL 700 000;

'If an administrative or judicial decision establishes that payments made in respect '3. Interest shall be payable on the sum to of charges or indirect taxes for company be reimbursed at the legally prescribed documents were not due, the taxpayer shall rate effective at the date of entry into be entitled to interest at the rate laid down force of this Law, as from the date of in Article 1 above as from the date of submission of the application.' submission of the application for repay- ment.'

26. As the Rome Court of Appeal points 29. According to information provided by out in its order for reference, that would the Rome Court of Appeal and the Com- mean that an annual rate of interest of mission, the rates of interest are as fol- 2.5% (the rate applicable on 1 January lows — taking account of the various 1999, the date on which Law No 448/98 adjustments: for 1985 to 1988, 6% per entered into force) would be payable on six-month period (that is to say 12% per charges paid but not due. That interest rate annum); for 1988 to 1993, 4.5% per is, however, substantially lower than the six-month period (that is to say 9% per rate applicable pursuant to the — much annum), for 1994 to 1996, 3 % per six- amended — Law No 29/61 concerning the month period (that is to say 6% per repayment of charges that were not due. annum); and from 1997 onwards, 2.5% per six-month period (that is to say 5% per annum).

27. Article 1 of Law No 29/61 provides: 30. Italian civil law also contains provi- sions on interest rates. Under Article 2033 of the Italian Civil Code for instance, which covers payments that were not due, statu- 'Interest on sums owed to the State in tory rates of interest apply from the time an respect of charges and indirect taxes relat- action is brought. The rate of interest is ing to company transactions shall be pay- based on Article 1284 of the Civil Code, able at the rate of 3 % per six-month which has been much amended over the

PRISCO AND CASER

ment was made in full. The sum to be annual registration of the various company repaid to CASER had been paid by it over documents to replace the — now abol- the years 1985 to 1992 in respect of the ished — charge for renewal of regis- annual administrative charge for renewal of tration). its entry on the Register of Commercial Companies.

40. Secondly, with respect to Article 11(3) of Law N o 448/98, CASER alleges 37. The annual renewal charge was ITL 5 infringement of the prohibition of discrimi- million for 1985, 1986 and 1987; ITL 15 nation under Community law. million for 1988; and ITL 12 million for 1989, 1990, 1991 and 1992. Those figures were arrived at on the basis of the scale annexed to Decree No 641/1972, as vari- ously amended over the years.

observance of Community law, the provi- Court draws attention to the differing sions of Article 11 of Law No 448/98 — Italian case-law on the interpretation of as they in fact operate in relation to the Article 11(3) of Law No 448/98. The Rome registration services rendered to companies Appeal Court also compares the rates of from 1985 to 1992 — might nevertheless interest under Law No 29/61 and those in reality be incompatible with the rules of which flow from Article 2033 of the Italian Community law, as interpreted in the case- Civil Code. law of the Court of Justice. That applies both to the flat-rate charges for initial registration and to the registration of other company transactions, as well as to the legally prescribed interest the State has to pay on repayments to the companies. 45. On 12 May 1999, the Rome Appeal Court decided to refer the matter to the Court of Justice for a preliminary ruling.

national courts to ensure that those amounts paid but not due by way of rights and obligations are observed — annual charge on a flat-rate basis for and the Community principle of pro- entry on the register of undertakings (at portionality preclude a Member State that time document registries) of com- from relying on national rules setting a pany documents in respect of each of peremptory time-limit, such as those which the company had already paid a deriving from the combined provisions sum provided for by the national legis- of the second paragraph of Article 11(2) lation? In short, is it permitted — in of Law No 448 of 23 December 1998 the light of the abovementioned direc- and Article 13 of Presidential Decree tive — for the national legislature to No 641/1972, regard being had to the duplicate, ex post facto by means of fact that the said Article 11 retro- what purports to be an interpretative actively extended to taxes paid but law, levies which have already been not due the three-year time-limit paid?' which, however, in the abovemen- tioned second paragraph of Arti- cle 13 — on the basis of the true meaning of the words used in con- text — was expressly limited solely to the case of 'repayment of charges paid by mistake' so as to induce not only the 47. In Case C-222/99, the Rome Court of interested parties but also all the trial Appeal is asking the Court to answer the judges to interpret it in that manner? In following questions: short, does the principle of legal cer- tainty allow the national court to apply — both now and then — a time-limit based on a provision which, having regard to the ordinary meaning of the words, does not apply to the case before it? ' 1 . For the purposes of an action brought by a company before the Italian courts for the reimbursement of the tassa di concessione governativa (adminis- trative charge) paid from 1985 to 1992 under laws conflicting with Article 10 of Council Directive 69/335/EEC 17 of 17 July 1969 concerning indirect taxes 2. Must the provisions of Articles 10 and on the raising of capital (see the judg- 12(1)(e) of C o u n c i l D i r e c t i v e ment of 20 April 1993 in Joined Cases 69/335/EEC 16 be interpreted as pre- C-71/91 and C-178/91), 18 may venting the introduction of national Article 11(1) of Law No 448 of 23 De- legislation, like that introduced by the cember 1998 which retroactively lays Italian legislature in the form of down the single charge of ITL 500 000 Article 11(1) and (2) of Law for registration of the instrument con- No 448/1998, which — ex post stituting a company and various flat- facto — reduces refunds in respect of

rate charges for the registration of 2. Regardless of whether the amounts other company documents (varying levied by the Italian State under from ITL 750 000 to ITL 90 000 Article 11(1) of Law No 448 of 1998 depending on the kind of company) be rank as duties paid by way of fees or considered compatible with the prin- dues, is the legally prescribed interest ciples of Community law and with the payable by the State — in addition to interpretation of the said directive the reimbursements to the com- given by the Court of Justice in its panies — with effect, as specifically judgment in Joined Cases C-71/91 and indicated in Article 11(3), from the C-178/91? date of submission of the application for reimbursement and at an annual rate of 2.5%, which is lower than the annual rates laid down generally for tax paid but not due by Articles 1 and 5 of Law No 29 of 29 January 1961 (and successive provisions) or, for other s u m s p a i d b u t n o t d u e , by Article 2033 of the Civil Code, com- patible with the principle of equival- The foregoing question is asked in the ence between the two systems (do- light of the fact that the abovemen- mestic and Community) of law as tioned provision (Article 11 of Law regards the protection of individuals' No 448 of 1998), although, because rights and/or with the principle of the amounts concerned are objectively effective exercise of the rights con- modest and the reference ex novo to ferred by Community law — both the registration of company documents principles having been upheld was, it seems, intended to refer to repeatedly by the Court of Justice in flat-rate figures apparently commen- its judgments of 15 September 1998 in surate with the cost of the service Case C-260/96 Spac, Case C-231/96 (being duties paid by way of fees or Edis and Joined Cases C-279/96, dues: Article 12(1)(e) of Directive C-280/96 and C-281/96 Ansaldo?' 69/335), was in fact adopted without any previous determination or calcu- lation of the costs of the service ren- dered to the companies (costs which are easily determinable, because they relate to past years, on the basis of the number and qualification of the offi- cials, the time they take and the various V — Admissibility of the questions material costs necessary for carrying referred out the transaction), without there being any significant link between the amounts levied and the service actually received by the companies which had in fact paid a charge for registration 48. The questions referred turn in their and for annual renewal thereof and not different ways on the compatibility of for the registration of company docu- national law with Community law. In that ments on a flat-rate basis). connection, it should be pointed out that,

52. In the alternative, Prisco and CASER submit that before the charge for regis- A — Submissions of the parties tering a company was determined, the costs of the services provided for the registration of a document of that nature between 1985 and 1992 ought to have been calculated. 50. Prisco and CASER first submit that, as Prisco and CASER consider the figure of regards the period of time material to this ITL 500 000 to be far too high, the sum of ITL 8 000 in respect of registry fees being in itself adequate. They further emphasise that 19 — See Case C-399/98 Ordine degli Architetti and Others in its judgment in Fantask, the Court held [2001] ECR I-5409, paragraph 48 and Joined Cases that the assessment of the cost can only be C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22. on a flat-rate basis and must be fixed taking

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54. In the view of Prisco and CASER, there is no doubt that the charges for the regis- tration of documents other than the con- stituent instrument are connected to the 55. Should the Court rank the flat-rate charge as a duty paid by way of fees or 20 — See Case C-2/94 [1996] ECR I-2827. dues, Prisco and CASER emphasise that the I - 6778

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amount of the charge was established actually been made. Thirdly, Directive without determining or calculating in 69/335 does not require that the flat-rate advance the costs of the services provided, charge should accurately reflect the costs as the Rome Court of Appeal also pointed actually incurred by an administration for out. the service rendered to a particular com- pany. A requirement of that nature would in fact militate against the possibility of flat-rate charges, though these were accepted by the Court in Ponente Carni and Pantask. In this case, the amount of charges required is appropriate and reflects the average of the charges levied in other 56. The Italian Government first submits Member States in relation to formalities of that in Ponente Carni, the Court made this nature. clear that charges in the nature of a duty paid by way of fees or dues within the meaning of Article 12(1)(e) of Directive 69/335 include only those charges the amount of which is calculated on the basis of the costs of the service rendered and may not be calculated on the basis of all the [running and capital] costs of the depart- 58. In response to a written question from ment responsible. On that basis, the Italian the Court, the Italian Government stated courts declared the system initially appli- that the registry fees were used to meet the cable from 1985 to 1992 to be incom- administrative costs of registering company patible with Community law. transactions.

flat-rate charge is payable only when trans- effect for registering the constituent instru- actions have actually taken place. Finally, ment is not contrary to Directive 69/335. the Italian Government contests the Com- mission's view that only the registry fees are permissible. The Italian Government sees no reason why only the charge paid first should be allowable, particularly where it accounts for only a fraction of 63. In the oral procedure, however, the the amount stipulated in Article 11 of Law Commission focused on what it describes No 448/98. as the principle of the prohibition of paying twice over for the same service. That principle, evolved in the Court's case-law 21 in relation to charges with the same effect under Articles 9 and 12 of the EC Treaty (now, after amendment, Articles 23 and 25 EC) can be applied mutatis mutandis to issues raised by the charges in question in this case. 61. As regards the charge with retroactive effect for registering a company's incor- poration, the Commission contends that there is no doubt that it is covered by the prohibition under Article 10(c) of Directive 69/335, save where it is justified under Article 12(1 )(e). 64. Furthermore, in the Commission's view, the Court of Justice should provide the national court with the criteria that will enable it to decide which of the three charges paid by the undertaking (the regis- try fees, the administrative charge or the flat-rate charge with retroactive effect) constitute the consideration and thus the only permissible charge. The comparative 62. In that connection, the Commission study is, therefore, no longer relevant. notes in its written observations that a Member State meets the requirements only if the charges are proportionate. On the basis of a comparative study of registration fees in the 12 Member States, which was prepared in conjunction with the Ponente 65. Consequently, in the oral procedure, Carni case and subsequently updated, the the Commission amended its suggested Commission contends, in its written obser- reply to the effect that, in its view, only vations, that the sum of ITL 500 000 the registry fees were permissible, and required for registration of the constituent Article 11(1) of Law No 448/98 was not instrument, as stipulated in Article 11 of compatible with Article 10(c) of Directive Law No 448/98 for the years 1985 to 1992, 69/335 because it required a second pay- is proportionate. Consequently, in its written observations, the Commission con- cludes that the charge with retroactive 21 — See Case C-209/89 Commission v Italy [1991] ECR I-1575.

69. Article 10(a) of Directive 69/335 bars the Member States from levying taxes or charges other than capital duty on the transactions referred to in Article 4 thereof. B — Analysis

67. In relation to the provisions of 70. In analysing Article 11 of Law Article 11 of Law No 448/98, which have No 448/98 in the light of Community law, given rise to the main proceedings, a it should be noted that the flat-rate charge

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72. According to the Court's case-law, 24 the charges paid by way of fees or dues exempted under Article 12(1)(e) of Direc- 75. According to the judgment in Fant- ask, 26 in determining the charge by refer- ence to the costs of the service rendered — 22 — For the relevant criteria, see Case C-206/99 SONAE [2001] ECR I-4679, paragraph 25. 23 — Joined Cases C-71/91 and C-178/91 (cited in footnote 3 above, paragraph 30). 25 — See Case C-206/99 (cited in footnote 22 above, 24 — See Joined Cases C-71/91 and C-178/91 (cited in footnote 3 paragraph 33) as well as Case C-134/99 (IGI [2000] above, paragraphs 41 and 42) as well as Case C-206/99 ECR I-7717, paragraph 27). (cited in footnote 22, paragraph 32). 26 — Case C-188/95 (cited in footnote 7, paragraph 30).

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the only method the Court permits for 79. For example, the Court identified an determining a duty paid by way of fees or infringement of Community law in the fact dues within the meaning of Directive that 'the total payment demanded from the 69/335 — Member States are entitled to undertakings concerned may exceed, at take account not only of the material and times by a considerable amount, the total salary costs which are directly related to cost which, according to the Italian Gov- carrying out the registrations in respect of ernment, the service provided entails for which they are incurred, but also of the the State's finances.' 27 proportion of the overheads of the compet- ent authority which can be attributed to those registrations.

80. The total payment demanded has thus to be taken into account. And that may also be the product of several charges.

86. That being so, given that they amount to only ITL 8 000, it appears doubtful whether the registry fees cover the costs of all the services for which a Member State may demand payment. 83. According to the case-law on Directive 69/335, which has a bearing on this case, the crucial yardstick is and remains the principle that the amount of a charge as such (even if it consists of several charges) must mirror actual costs. That also applies to the case-law the Commission cites in 87. Recognised methods of cost accounting relation to charges with the same effect. should be used to establish whether the According to that case-law also, the crucial amount of ITL 500 000 laid down in element is the 'actual cost of the operation Article 11(1) of Law No 448/98 meets in question.' 29 those requirements.

2. Registering other company transactions

84. It is necessary to establish whether 'the Italian rules at issue lead, in certain cases, to the imposition of an amount dispropor- tionate to the service rendered to traders, in that it entails the levying of as many 88. As Prisco, CASER and the Commission charges as there are undertakings involved rightly submit, it is necessary to begin by and the charge payable by them, therefore, considering whether the annual flat-rate exceeds the actual cost of the inspec- charge for registering other company trans- tions.' 30 actions provided for in Article 11(1) of Law No 448/98 fundamentally meets the requirements of Directive 69/335, and not 29 — Case C-209/89 (cited in footnote 21 above), paragraph 13. only whether the amount of the charge is 30 — Case C-209/89 (cited in footnote 21 above), paragraph 16. justified.

95. That type of charge would, however, 92. Although the wording of Article 10(c) be permitted if it met the requirements of of Directive 69/335 covers only 'regis- t h e d e r o g a t i o n p r o v i d e d for in Article 12(1)(e) of Directive 69/335. 31—See Case C-113/99 Herta Schmid [2001] ECR I-471, paragraph 21, as well as Cases C-2/94 (cited in Footnote 20), paragraph 23 and C-188/95 (cited in 33 — See Case C-188/95 (cited in footnote 7 above), footnote 7 above), paragraph 21. paragraph 22. 32 — In connection with that type of charge and identifying it, 34 — See Joined Cases C-71/91 and C-178/91 (cited in footnote 3 see Case C-2/94 (cited in footnote 20 above), paragraph 27. above), paragraph 31.

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96. In that connection, it seems appropriate 100. Since absolutely no registration for- to demonstrate this by reference to the two malities were undertaken in relation to possible types of case: companies which companies which did not have transactions had company transactions subject to regis- registered, the authorities could not tration registered between 1985 and 1992 actually incur any costs, but, according to and companies which did not. Under the Court's case-law, 35 that is a prerequi- Article 11(1) of Law No 448/98, the charge site for the levying of a charge. Con- is to be levied in both cases. sequently, in that type of case, there is neither a service to the individual 36 nor is there a particular 37 service within the meaning of the case-law, for which this could be a consideration.

102. That is not the case. The annual f l a t - r a t e c h a r g e p r o v i d e d for in Article 11(1) of Law No 448/98 largely corresponds to the charge previously 99. While those companies which did not declared to be contrary to Community have transactions registered between 1985 law in Ponente Carni and cannot be con- and 1992 did not have to pay a charge under the earlier national legislation, they are required to pay the flat-rate charge on 35 — See Case C-188/95 (cited in footnote 7 above), paragraph 31; Case C-134/99 (cited in footnote 25 above), the basis of Article 11(1) of Law paragraph 31; and Case C-206/99 (cited in footnote 22 above), paragraph 34. No 448/98. That charge would therefore 36 — See Joined Cases C-71/91 and C-178/91 (cited in footnote 3 be payable if no transactions were regis- above), paragraph 37. tered, that is to say even if no service were 37 — See Joined Cases C-71/91 and C-178/91 (cited in footnote 3 above), paragraph 42 and Case C-188/95 (cited in rendered. footnote 7 above), paragraph 27.

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sidered to be a duty 'paid by way of fees or the registration of other company trans- dues' within the meaning of Article 12(1)(e) actions, if that charge is unrelated to the of Directive 69/335. amount of the costs.

103. Since the flat-rate charge provided for in Article 11(1) of Law No 448/98 is contrary to Community law, there can be VII— The time-limit no question of a reduction in the amount to be refunded to the companies concerned.

106. The first question referred by the Milan District Court in Case C-216/99 concerns the compatibility with Commu- nity law of the three-year time-limit laid 3. Conclusion down in Article 11(2) of Law No 448/98 and Article 13 of Decree No 641/72.

nity law in a judgment of the Court, 110. It follows that Article 11 of Law dependent on conditions peculiar to that No 448/98 fails to observe the principle charge and which are less favourable that of equivalence addressed in the cases of the conditions of repayment which would Barra and Deville. In addition, the provi- apply in the absence of that legislation. sion fails to respect the principles of legal certainty, legitimate expectation and pro- portionality, particularly given that it has retroactive effect. Moreover, at the time the provision was adopted, the three-year time- limit, which has to be taken into account, had long expired in relation to the taxes most recently paid in 1992 the reimburse- ment of which is claimed. 108. Prisco stresses that the provisions of Article 13 of Decree No 641/72, which the Court examined in Edis, existed prior to the judgment in Ponente Carni and are not specific to the taxes at issue, so that the abovementioned principle does not apply.

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situation the Court analysed in Edis, Spac incompatible with Community law if the and Ansaldo, and concluded that Commu- provisions in question apply exclusively to nity law does not prevent a Member State those taxes and, in addition, are less from imposing a three-year time-limit on favourable to taxpayers than the rules claims for the reimbursement of a charge which would apply in the absence of those levied contrary to Community law which provisions. departs from the general rule applying to claims for repayment between private indi- viduals. The principles of equivalence and effectiveness have, however, to be safe- guarded.

OPINION OF MRS STIX-HACKL — JOINED CASES C-216/99 AND C-222/99

provision crucially refers to Article 13 of 120. Secondly, the case-law which has a Decree No 641/72, it is the interpretation bearing on this case relates solely to of the latter article which is decisive. provisions which refer specifically to those charges which were held to be contrary to Community law in a judgment of the Court. 43

1. Requirements of Community law in relation to the admissibility of time-limits 121. Thirdly, that case-law concerns only those provisions which lay down less favourable conditions for reimbursement than the national rules which would apply if they did not exist. 44 117. Before analysing the provision of Italian legislation at issue, it is first necess- ary to identify the criterion governing the compatibility of national legislation with Community law. 122. Those principles are the practical embodiments of the general principle that it is for national law to guarantee the effectiveness of claims for repayment. According to the abovementioned case-law, that guarantee is absent if the provision 118. The relevant requirements of Com- introduced after judgment had been munity law are to be found in the Court's delivered and laying down the time-limit case-law in Deville, Edis, Aprile and Dil- actually has retroactive effect. 45 export.

Ponente Carni, that is to say after 20 April 2. Conclusion 1993. Secondly, it relates in terms of both description and content specifically to the administrative charges which formed the subject-matter of the judgment in Ponente Carni, and were held to be contrary to Community law. 126. Community law does not prohibit a Member State from adopting, after a the Court has handed down a ruling that a charge is incompatible with Community law, provisions under which the conditions governing the reimbursement of the charge are less favourable than would have been the case without those provisions, provided 124. To ascertain whether the third con- that amendment is not specific to the dition is met, however, it is necessary to charge in question and the new provisions compare the legal position before the entry do not, in practice, make it impossible or into force of Law No 448/98 and the legal excessively difficult to exercise the right to position consequent on the introduction of repayment. Article 11(2) thereof. More particularly, it has to be established whether the three-year time-limit under Article 11(2) of Law No 448/98 or Article 13 of Decree No 641/72 is applicable, or whether, for example, the ten-year time-limit under general civil law, namely Article 2946 of the Italian Civil Code, applies. VIII — The methods of calculating the interest

interest applicable to charges and indirect 130. The Italian Government points out taxes which taxpayers pay late or which the that, in Ansaldo, the Court recognised that State has to refund. CASER points out that, a Member State could not be required to calculated from the time the application for extend the favourable national rules on repayment was made, the interest payable reimbursement to all claims for the repay- under that Law, in the circumstances of this ment of charges and dues levied in breach case, would be ITL 30 810 000. That is a of Community law. Moreover, the prin- higher sum than would be produced if ciple of equivalence was guaranteed in that Article 11(3) of Law No 448/98 were Article 11(3) of Law No 448/98 applied the applied (ITL 17 550 000). The interest rate of interest not only to cases involving payable if the rules of the Italian Civil Code the refund of the administrative charge but were applied, calculated solely from the to all applications for reimbursement, date the claim was lodged with the court, including those based on national law. would also be higher (ITL 40 950 000). The differences in those amounts clearly show that Article 11(3) of Law No 448/98 fails to observe the principle of equivalence.

131. The Commission points out that, in contrast to the Ansaldo case, it is explicitly clear from the wording of the provision at issue that it specifically applies only to the reimbursement of the particular adminis- trative charge which was held to be incom- patible with Community law, and not to the many other administrative charges.

1. Principles

2. Analysis of the rules on methods of calculation

134. I should first draw attention to the general principle of settled case-law accord- ing to which 'in the absence of Community 137. As CASER and the Commission have rules governing the refund of national taxes correctly pointed out, a rule such as levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having 47 —See Joined Cases C-397/98 and C-410/98 (Metallgesells- jurisdiction and to lay down the detailed chaft and Hoechst [2001] ECR I-1727), paragraph 85, C-231/96 (cited in footnote 4 above), paragraphs 19 and procedural rules governing actions for safe- 34; C-260/96 {cited in footnote 4 above), paragraph 18; guarding rights which individuals derive C-228/96 (cited in footnote 40 above), paragraph 18; and Case C-343/96 (cited in footnote 41 above), paragraph 25. from Community law, provided, however, 48 — See Joined Cases C-397/98 and C-410/98 (cited in that such rules are not less favourable than footnote 47 above), paragraph 86; Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 11 and those governing similar domestic actions 12; and Case 130/79 Express Dairy Foods [19801 ECR 1887, paragraphs 16 and 17. (principle of equivalence) and do not render 49 — See Case C-231/96 (cited in footnote 4 above), virtually impossible or excessively difficult paragraph 36.

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OPINION OF MRS STIX-HACKL — JOINED CASES C-216/99 AND C-222/99

Article 11(3) of Law No 448/98 governs Article 5 of that Law, interest is payable the reimbursement of an individual charge, from the date the application for repayment namely the administrative charge which was made and not just from the time a has been held to be contrary to Community claim was lodged with the courts. Secondly, law. 50 That rule was in fact introduced a comparison of the rates of interest shows specifically in relation to the charges which that the — much amended — rate of are contrary to Community law. 51 interest laid down in Law No 29/61 was clearly higher than the rate of interest payable under Article 11(3) of Law No 448/98, at least from 1985 to 1999. 52

142. If the legal relationship between the taxpayers, that is the companies, and the 140. The provisions of Law No 29/61 are financial authorities were classified not as a the first point of comparison. Under fiscal but as a civil law matter, 53 the provisions of the Italian Civil Code, namely Articles 1284 and 2033, would apply. A 50 — The rule in question therefore differs from the rule which was the subject-matter of the judgments in Case C-343/96 (cited in footnote 41 above), paragraph 29 and Case C-228/96 (cited in footnote 40 above), paragraph 22. 52 — For the rates of interest, see the section above on the law 51 — See also Alessandro Voglino, 'La lesione di diritto alla applicable. ripetizione dell'indebita "tassa sulle società" nelle più 53 — As regards the authority of the Member States to classify recenti interpretazioni della giurisprudenza e nell'ultimo legal relationships, see Joined Cases C-10/97 to C-22/97 abuso del legislatore nazionale', Bolletino Tributario 5, IN.CO.CE'90 and Others [1998] ECR I-6307, 1999, 381 (393). paragraphs 26 and 29.

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PRISCO AND CASER

comparison of those rules, particularly the 145. It should be pointed out for the sake interest rates, 54 with the provisions of of completeness that the principle of equiv- Article 11(3) of Law No 448/98, clearly alence 'cannot be interpreted as obliging a shows that the latter set lower rates of Member State to extend its most favourable interest. rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law.' 56

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OPINION OF MRS STIX-HACKL — JOINED CASES C-216/99 AND C-222/99

rules which stipulate methods of calculat- for the reimbursement of comparable ing interest that are less favourable in charges and taxes which are based on relation to the reimbursement of charges national law, and, second, the methods of which a Member State has levied in breach calculation that apply to judicial claims for of Community law, than, first, the methods the reimbursement of improperly paid sums of calculation that apply to judicial claims which are based on domestic civil law.

DC — Conclusion

148. In the light of the foregoing I propose that the Court give the following answers to the national courts' questions:

(1) The reply to the second question referred in Case C-216/99 and the first question referred in Case C-222/99 should be that Article 10(c) and Article 12(1 )(e) of Directive 69/335 should be interpreted as meaning that:

— first, the methods of calculation that apply to judicial claims for the reimbursement of comparable charges and taxes, which are based on national law, and

— second, the methods of calculation that apply to judicial claims for the reimbursement of improperly paid sums, which are based on domestic civil law.

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