Court of Justice of the European Communities (including Court of First Instance Decisions)

the consumption tax on fresh or dried bananas and banana meal (hereinafter 'the consumption tax on bananas').

'Any person who, even before the entry into force of this decree, has paid customs import duties, manufacturing taxes, consumption taxes or State duties which were not due shall be entitled to reimbursement of the sums paid if he provides documentary proof that the charge in question was not passed on, in any manner whatsoever, to other persons, except in the case of clerical error'.

claims for repayment based on an alleged infringement of a statutory provision, which are subject to the limitation period of 10 years laid down for actions for recovery of sums paid but not due by Article 2946 of the Italian Civil Code.

be incompatible with the Community rules'.

'1. The five-year time-bar laid down in Article 91 of the Consolidated version of the provisions relating to customs duties, approved by Presidential Decree No 43 of 23 January 1973, 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 Article 84 of the same instrument, shall be reduced to three years as from the 90th day following the entry into force of this Law.

2. Customs import duties, manufacturing taxes, consumption taxes, the tax on sugar and State duties levied under national provisions incompatible with Community legislation shall be repaid unless the amount thereof has been passed on to others.

3. Article 19 of Decree-Law No 688 of 30 September 1982, converted, after amendment, into Law No 873 of 27 November 1982, shall apply where the taxes collected are not provided for by the Community legal order.

4. A claim for repayment of the duties and taxes referred to in paragraphs 2 and 3 above must, where the sum concerned has contributed to the income of the undertaking, also be notified to the tax office which received the tax return for the year in question, failing which it shall be inadmissible.

...

7. Paragraph 2 shall apply to the reimbursement of sums paid before the date of entry into force of this Law.

8. Paragraph 4 shall apply from the fiscal year in which this Law enters into force.'

'1. Must Community law be interpreted as precluding the adoption by a Member State of a provision such as Article 29 of Italian Law No 428 of 29 December 1990 which makes the repayment of charges levied in breach of Community law subject to limitation periods or time-limits and to conditions as to proof which are different from and more restrictive than those laid down in the general rules of civil law? In particular, with regard to the principle that the procedural conditions for exercising the right to reimbursement established by national law "may not be less favourable than those relating to similar actions of a domestic nature", what is to be understood by the expression "similar actions of a domestic nature"?

2. Do the fundamental principles of the Community order preclude the introduction by a Member State - in a limited manner and with reference only to a specific sphere consisting of a homogenous category of fiscal levies made up in particular of charges linked to the Community order - of special derogating provisions to restrict and limit the right to recovery of sums unduly paid, thus derogating from the general conditions for recovery of sums unduly paid laid down in Article 2033 of the Civil Code? In particular, may the principle of non-discrimination be understood in a restrictive sense, and may it thus be considered that a provision of a Member State such as the second paragraph of Article 29 of Law No 428 of 29 December 1990 complies with that principle, simply because the conditions laid down therein for reimbursement of fiscal charges linked to Community law, although restrictive in comparison with the general rules of ordinary law, are however less onerous in comparison with the special conditions for reimbursement laid down in the second paragraph of Article 29?

3. Do the abovementioned fundamental principles of the Community order preclude the adoption by a Member State - after numerous judgments of the Court declaring various charges relating to customs duties on imports, manufacturing taxes, consumer taxes, sugar premium and State taxes to be incompatible with Community law - of a procedural provision such as Article 29 of Law No 428, which specifically reduces the possibilities of bringing proceedings for recovery of charges which were wrongly levied in breach of Community law?

4. Is such a law as that - supposedly introduced in order to bring national law into line with the precepts of the Court of Justice - which was passed three and a half years late following the Court judgments in question, thus further unjustly enriching the State responsible for the delay, compatible with Community law and, in particular, with the Court's findings as to unacceptable requirements of proof in Case 199/82 San Giorgio, cited above? In particular, are the interpretation and application of Article 29 compatible with Community law, on the basis of the assumption that, "it being a well-known fact that consumer 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?

5. In consequence, is it compatible with Community law for the national court or its expert witness to establish that charges have been passed on, relying on those mere presumptions, which are claimed to be evidence open to assessment by the court, thus systematically excluding applications for reimbursement, as is happening in practice, with the result that the debtor Administration never acknowledges that it has to make repayment?

6. May a rule such as that laid down in the fourth and eighth paragraphs of Article 29, establishing procedural formalities (for example, the requirement to notify particular departments of the debtor authority) which were never contemplated in previous cases of reimbursement considered under the relevant general rules, be introduced and may it be interpreted with retrospective effect?

- make actions for the reimbursement of taxes contrary to Community law, such as the consumption tax on bananas, subject to less favourable conditions than those laid down for the recovery of sums paid but not due in proceedings between individuals (first and second questions);

- thereby change - rendering them more restrictive - the conditions for reimbursement applicable to those taxes after the judgments of the Court which found them to be incompatible with Community law (third question);

- subject, in particular, the reimbursement of those taxes to a condition, such as the requirement that the tax has not been passed on to third parties, which the plaintiff is deemed not to fulfil (fourth and fifth questions);

- impose a specific requirement of notification of the claim for reimbursement of those taxes to the tax authorities, which, if not fulfilled, renders the claim inadmissible (sixth question).

The jurisdiction of the national court

both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges which were paid but not due must be brought before the ordinary courts, mainly in the form of actions for refund of sums paid but not owed, such claims being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see, most recently, Case C-228/96 Aprile v Amministrazione delle Finanze dello Stato [1998] ECR I-0000, paragraph 17).

actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies (Edis, cited above, paragraph 37, SPAC, cited above, paragraph 21, and Case C-228/96 Aprile, cited above, paragraph 21).

The third question

which observes that the wording of Article 29(2) of the 1990 Law contains no rule concerning the onus of proof, states that, if the national legislation must be interpreted in the sense indicated by the national court, it shares that view.

The sixth question

the obligation in question did not apply to tax years preceding the entry into force of the 1990 Law.

Costs

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions submitted to it by order of 17 August 1996, supplemented by an order of 28 October 1996, by the Pretura Circondariale di Bolzano, Vipiteno Division, hereby rules:

1. Community law does not preclude national provisions from making repayment of customs duties or taxes contrary to Community law subject

to less favourable time-limits and procedural conditions than those laid down for actions between private individuals for recovery of sums paid but not due, provided that those conditions apply in the same way to actions for repayment which are based on Community law and to those based on national law and do not make it impossible or excessively difficult to exercise the right to repayment.

2. Community law does not preclude the adoption by a Member State, following judgments of the Court declaring duties or charges to be contrary to Community law, of provisions which render the conditions for repayment applicable to those duties and charges less favourable than those which would otherwise have been applied, provided that the duties and charges in question are not specifically targeted by that amendment and the new provisions do not make it impossible or excessively difficult to exercise the right to repayment.

3. Community law precludes a Member State from making repayment of customs duties and taxes contrary to Community law subject to a condition, such as the requirement that such duties or taxes have not been passed on to third parties, which the plaintiff must show he has satisfied.