C-255/00

GRUNDIG ITALIANA

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 March 2002 1

I — Introduction perfectly well been given using the quicker and more efficient r o u t e under Article 104(3) of the Rules of Procedure.4

1. This is not the first time that the Court of Justice, in response to questions put to it by Italian courts seeking a preliminary ruling, has had to rule on whether the 3. The Italian court seeks to ascertain imposition of limitation periods or time- whether the establishment of a transitional limits for bringing actions for the reim- period of 90 days in which to bring actions bursement of tax paid but not due to the which, having been subject to a five-year Administration complies with Community limitation period have, owing to a change law. 2 in legislation introduced with retroactive effect, become subject to a three-year time- limit, infringes the principle of effective- ness.

2. Even if the specific doubt in the mind of the Tribunale di Trento (District Court, Trento) has not in this case been dispelled by Community case-law, the reply is impli- cit in an extensive body of judgments of the II — Facts of the main action and the Court of Justice, 3and could therefore have question referred for a preliminary ruling

'Is a national provision, namely the last part of Article 29(1) of Law No 428 of 29 December 1990, compatible with Com- 5. That incompatibility has been estab- munity law and in particular with the often lished since the Court of Justice, in reply stated principle of effectiveness [...] where to a first preliminary question referred by it lays down a period of grace of 90 days the Tribunale di Trento in the same pro- within which, in order to avoid the three- ceedings, held that 'Article 95 of the Treaty year time-limit introduced retroactively in is to be interpreted as precluding a Member place of a previous five-year limitation State from introducing and levying a con- period, a party enjoying a right to recover sumption tax in so far as the taxable a sum paid but not due, based on Commu- amount and the procedure for collecting nity law and resulting from a payment the tax are different for domestic products made prior to the entry into force of the and for products imported from other said provision must bring a legal action?' Member States'. 7

6. Having heard the proceedings on the claim for reimbursement 8 and having regard to the defence advanced by the III — The proceedings before the Court of Justice

12. The Italian Republic argues that the Tribunale di Trento's question is based on 10. Article 29 of the Law was headed an erroneous interpretation of Article 29( 1 ) 'Repayment of taxes recognised to be of Law No 428 and that consequently, in incompatible with the Community rules'. its view, the Court of Justice is not in a Article 29(1) extended the application of position to furnish a reply. Furthermore, the five-year limitation period laid down by the Commission's reading of the afore- Article 91 of the Consolidated version of mentioned provision is different from that the legislative provisions relating to cus- suggested by the referring court. toms duties to cover all actions brought for the refund of sums paid in connection with customs operations. At the same time, it 10 — The provision reads: 'The five-year period laid down in reduced that time-limit to three years and Article 91 of the Consolidated version of the provisions relating to customs duties [...) shall be deemed to apply to all claims and actions which may be brought for the refund of sums paid in connection with customs operations. That period, and also the limitation period laid down in 9 — Law laying down provisions for the fulfilment of obligations Article 85 of the same instrument, shall be reduced to deriving from Italy's membership of the European Commu- three years as from the 90th day following the entry into nities (GURI, Supplement No 10, p. 5). force of this Law.'

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16. More specifically, however it has been made clear in point 1 of the operative part 14. The Commission proposes that the of the Aprile judgment, with respect to question be rephrased and, going further Article 29(1) of Law No 428, that 'Com- than the referring court, requests the Court munity law does not preclude the appli- of Justice, in addition to giving a reply on cation of a national provision which, for all the 90-day transitional period, to clarify actions for repayment of customs charges, whether, in terms of the principle of imposes a special time-limit of five, and equivalence, the reduction by two years subsequently three, years, instead of the period for bringing actions is compatible ordinary limitation period of 10 years for with the Community legal order. 12 actions for the recovery of sums paid but not due, provided that that time-limit, which is similar to that imposed for certain 11 — See, as an illustration, Case C-37/92 Vanacker and Lesage taxes, applies in the same way to actions [1993] ECR I-4947, paragraph 7. based on Community law for repayment of 12 —It asks the Court of Justice to reply as follows to the question raised: 'Community law does not preclude the such charges as to those based on national application of a national provision which reduces the time-limit on actions for the recovery of customs duties or law'. 14 taxes which are incompatible with the Community legal order provided that: (a) the time-limit referred to applies equally to actions for recovery based on Community law and to those based on internal law; (b) the national law laying down the reduction in the time-limit from five years 13 — See the judgments, cited above, in Edis, paragraph 34, to three establishes a reasonable transitional period for the SPAC, paragraph 38, Ansaldo Energía and Others, reduction, that is, it enables those concerned to safeguard paragraph 16, Aprile, paragraph 18, and Dilexport, their rights to recover sums paid but not due which arose paragraph 25. whilst the previous legislation was in force.' 14 — Emphasis added.

18. That is not the interpretation given by the Tribunale di Trento, in whose view the five-year limitation period laid down in the 20. Today I am also in a position to assert aforementioned Article 4 of Law No 53 that, as is to be inferred from the order for also operates in the case before it. 16 The reference, Article 29(1) of Law No 428 referring court maintains that from the applies to indirect taxes on goods, and entry into force of that law the five-year treats actions based on Community law in time-limit and, on expiry of the 90-day the same way as those founded on the transitional period, the three-year limit is national legal order. The Corte di Cassa- applicable. It holds that those time-limits zione held this to be so in the judgment I apply likewise to actions not yet brought have partially reproduced in footnote 19, relating to payments wrongly made prior to and the Court of Justice in paragraph 22 of the entry into force of the law, the right to the Aprile judgment. recover which had already accrued by that date. 17 At no time, however, has it sug- gested that actions for recovery based on 18 — I was referring to Article 29(1) of Law No 428. national law might be subject to more 19 — Paragraph 18. I reached that conclusion following the case-law of the Corte di Cassazione (Court of Cassation) itself which, in a judgment of 6 November 1992, held that 'Article 29(1) of Law No 428 of 1990 [...] imposes a single set of rules on the repayment of sums paid but not due m 15— 1993. relation to a large number of duties (indirect taxes on 16 — In its judgment made on the same date as the order for goods) and treats as being the same, for those purposes, reference, it held that the action for recovery of payments both duties collected under national provisions which are made prior to 22 July 1988 was extinguished as a result of incompatible with Community rules and customs import the five-year limitation period. Grundig hrought the action duties, manufacturing and consumption taxes, etc., thus on 22 July 1993 (see the third plea inlaw in the order for avoiding the creation of a irts singulare for Community- reference). related reimbursements which renders them less easy to 17 — Sec the eleventh and twelfth pleas in law in the order for secure'. referral. 20 — See paragraph 22.

21 — The first from 27 January and 27 April 1991 and the second from that latter date. 22 — See the judgments cited in footnote 13.

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GRUNDIG ITALIANA

ities of claiming recovery of levies paid and regard to all the factual and legal require- not due at a sufficient level, I do not believe ments, both procedural and substantive, that it should be regarded as incompatible which the domestic legal order imposes for with Community law. 23 the bringing of actions for recovery. Only with that overview, which the Italian courts alone have, is it possible to give a definitive answer.

26. In other words, changes which do not render the exercise of the rights conferred by Community law impossible or excess- ively difficult are not contrary to that law. That answer, which is the only reply the Court of Justice can give to the Italian court, is inherent in the case-law. It is to be found in the judgments in FMC and 28. I have on occasion, it is true, found a Others,24 Edis,25 SP AC,26 Ansaldo Ener- three-year time-limit to be sufficient.30 As gía and Others,27 Aprile28 and Dil- the court which has raised the question in export.29 this case points out, the Court of Justice has found the same period 31 and even a period of one year 32 to be in conformity with Community law, but has in all cases assessed given time-limits on the basis of the principle of equivalence, and never that of effectiveness.33

31. Mindful of the foregoing consider- ations, I propose that the Court of Justice reply to the Tribunale di Trento that Community law does not preclude the application of a national provision estab- 30. I have on other occasions 35 expressed lishing a transitional period for the entry the doubts I harbour as regards the retro- into force of a new time-limit, shorter than active application of rules such as that in that existing until that time, for persons Article 29(1) of Law No 428. Those doubts entitled to reimbursement of sums paid but turn into certainty in the case of an auto- not due to bring the relevant actions, based matic and retroactive reduction in a limi- on Community law and arising as the result tation period or time-limit, on the grounds of payments made before that national that the reduction is unexpected and provision entered into force, provided that contrary to the principle of the protection the transitional period, by reason of its of legitimate expectations and to the prin- length and of the other procedural and ciple of legal certainty. 36 It would in my substantive circumstances of fact and law submission be contrary to the rule of the present in the national legal order, does not make it virtually impossible or excessively difficult to bring the actions in question. 34 — Paragraph 32, last part, of the Diiexport judgment. 35 — Paragraph 40 of the Opinion in Aprile and paragraph 27 of that in Diiexport. 36 — In the case of Article 29(1) of Law No 428, were it not for 37 — Advocate General Geelhoed expressed a similar view in the 90-day period, parties entitled to bring actions to paragraph 62 of his Opinion delivered on 24 January 2002 enforce rights arising three years prior to entry into force in Case C-62/00, in which judgment has not yet been of the provisions would be fatally deprived of those rights. delivered.