Opinion of the Advocate-General
1 The questions on which a preliminary ruling is sought in this case have been submitted by the Giudice Conciliatore (Judge-Conciliator), Milan (Italy), in the course of the same proceedings as those in which he referred at an earlier stage five questions, some of which he withdrew and some of which were ruled upon in the judgment of the Court of Justice of 5 October 1995 (1) (which, for the sake of clarity, I shall refer to as `Aprile I').
2 As I stated in my Opinion in that case, the questions initially submitted in Aprile I concerned:
- first, the impact of the rules and principles of Community law on the national legislation - Law No 428 of 20 December 1990 (hereinafter `Law No 428' (2)) - which governs the repayment of certain taxes unduly levied by the Italian customs administration;
- second, the applicability of those rules and principles of Community law to goods from non-member countries, whereby the charges or other levies imposed in respect of customs clearance of similar products must conform with the same rules as those applicable to goods from other Member States.
3 The first problem was specifically referred to in the first, second and third questions - subsequently withdrawn - in which the referring court, in principle, sought the application or `completion and clarification' by the Court of Justice of its case-law concerning the requirement that unduly paid charges should be refunded where a State has failed to fulfil the obligations imposed by Community law by continuing to impose charges or other State customs levies incompatible with Community law.
4 The fourth and fifth - and only remaining - questions sought to clarify whether the rules and general prohibitions applicable to intra-Community imports (specifically, the prohibition of charges having an effect equivalent to customs duties) might be extended to the customs treatment of goods from non-member countries and, in particular, those from countries belonging to the European Free Trade Area (hereinafter `EFTA'). Only on those questions did the Court of Justice give a preliminary ruling.
5 The Giudice Conciliatore, who withdrew the first three questions in Aprile I at the request of the Italian Avvocatura dello Stato, is again seeking from the Court of Justice an answer to his doubts regarding the application of Law No 428 in view of its possible conflict with the provisions and principles of Community law. In fact, he has raised the same queries as he did at an earlier stage.
6 The text of the questions now submitted is as follows:
`1. Do the principles of legal certainty, effective protection of rights arising under Community law and non-discrimination as regards the remedies available for the protection of such rights (according to which the procedural conditions of domestic law must not be less favourable and, in any event, must not make it excessively difficult to exercise such rights), as formulated in the case-law of the Court of Justice, preclude the introduction of national rules, such as those laid down in the first paragraph of Article 29 of Law No 428 of 29 December 1990, which, although purporting to be interpretative rules and therefore having retroactive effect, in fact substituted a (five-year) time-limit for the ordinary (ten-year) limitation period formerly in force, and which, in further reducing the time-limit to three years, treats those periods as being already in course when they entered into force, thereby derogating, without apparent justification, also from the general principle set out in Article 252 of the implementing and transitional provisions of the Civil Code, under which, in the event that the exercise of a right is made subject to a shorter time-limit than that laid down by previous laws, the new time-limit applicable also to the exercise of rights which arose previously begins to run only as from the entry into force of the new provision?
2. Does the principle that the procedural conditions of domestic law for the protection of rights arising under Community law must not be less favourable than those relating to similar actions of a domestic nature (judgments of 15 December 1976 in Case 33/76 Rewe v Landwirtschaftskammer Saarland and Case 45/76 Comet BV v Produktschap voor Siergewassen, upheld in subsequent other judgments) preclude the introduction of a national provision, such as that contained in the first paragraph of Article 29 of Law No 428 of 29 December 1990, which, whilst apparently designed to standardise the time-limits for the repayment of sums paid in relation to customs operations, in reality (as is clear from the heading and the actual wording of the provision) has the effect of extending the time-limits formerly laid down by Article 91 of the Customs Law (which are applicable only in the event of calculation errors or where a duty other than that laid down in the tariff is applied) to objective undue payments made as a result of breaches of Community law, whilst analogous claims for the recovery of objective undue payments under the ordinary domestic law (Article 2033 of the Civil Code) are subject to the ten-year limitation period?
3. Is the principle laid down by the Court of Justice in Case C-208/90 Emmott v Minister for Social Welfare and Attorney General - to the effect that, until such time as an EEC 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 upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time - as an application of the principle of legal certainty, binding upon the national courts in the same way as written provisions of Community law?
4. If the preceding question is answered in the affirmative, does the aforementioned principle laid down in Case C-208/90 Emmott v Minister for Social Welfare and Attorney General, by virtue of its constituting a specific application of one of the fundamental principles of Community law, have general, direct effect, that is to say, is it directly applicable and may it be relied upon before the national courts by individuals whenever a directive is not properly transposed - as in the case relating to Directive 83/643/EEC which formed the subject of the judgment in Case 340/87 Commission v Italy [1989] ECR 1483 - and, in any event, whenever national provisions are retained or introduced which lay down rules inconsistent with what is provided by directly applicable Community rules, such as those of the Treaty prohibiting charges having equivalent effect and of the Common Customs Tariff which were the subject of the Court's judgment in Case C-209/89 Commission v Italy and its judgment of 5 October 1995 in Case C-125/94 Aprile Srl, in liquidation v Amministrazione delle Finanze dello Stato, where the national provisions maintained in force required the payment, contrary to Community law, of charges not due in circumstances (such as the customs clearance of goods) such that the trader was not in a position to refuse to pay? It is therefore asked whether the Member State in breach of the obligation to implement Community provisions having direct effect is entitled to plead that time-limits or limitation periods expired during the time when the incompatible national provisions were maintained in force.'
Facts and procedure
7 I shall first set out the facts underlying the main proceedings and the course of the procedure, as I did in my Opinion in Aprile I (points 5 to 10):
- The Italian limited company Aprile Srl, which operated as a customs agent in Milan, was declared insolvent on 20 October 1992. The receiver, after examining the company's accounts, decided to claim from the Tesoreria Provinciale dello Stato reimbursement of the amounts paid by the company in previous years by way of charges for customs operations carried out outside normal civil service working hours or outside the customs area.
- The Administration refused to comply and the administrator therefore, having obtained leave from the court, brought at least two actions: one for the sum of ITL 618 436 900 in the Tribunale di Milano, (District Court, Milan) and another for a lesser amount before the Giudice Conciliatore in the same city.
- In the application to the Giudice Conciliatore - from whom the present reference emanates - Aprile claims from the Italian Administration the sum of ITL 933 200 corresponding to the charges paid for services provided on 22, 23, 24 and 26 November 1990 by the Segrate-Aeroporto di Linate customs office (Milan), which were levied under the Italian domestic rules which at that time allowed certain charges to be collected in respect of customs import operations effected outside customs officials' normal working hours.
- In view of the opposition to the claim on the part of the Amministrazione delle Finanze dello Stato (State Finance Adminstration), the Giudice Conciliatore, Milan, by order of 26 April 1994, sought a preliminary ruling from the Court.
- On completion of the oral observations phase and after the hearing had been fixed for 11 May 1995, on 5 May 1995 the Italian State Attorney informed the Giudice Conciliatore, on behalf of the defendant Administration, that `in view of the non-fiscal nature of the amounts claimed by the plaintiff' the Administration had agreed not to apply Article 29(2) and (7) of Law No 428 and consequently withdrew its defence to that claim. Accordingly, he asked the judge to amend the order for reference by limiting it to the last two questions, the plaintiff being agreeable to that request.
- By order of the same date, 5 May 1995, the Giudice Conciliatore, Milan, informed the Court of Justice that it was unnecessary to give a preliminary ruling on the first three questions contained in his original order.
8 Once judgment was given in Aprile I, the main proceedings continued and the Giudice Conciliatore was confronted with the objection raised by the defendant Administration, in the alternative, under Article 29 of Law No 428, that the right of recovery was time barred (in fact, that the action for recovery lapsed).
The national legislative context and the Community legislative context
9 Article 29 of Law No 428 (3) provides, under the heading `Repayment of taxes considered incompatible with Community law', as follows:
- Article 29(1) extends the five-year time-limit laid down by Article 91 of the Consolidated customs legislation to all actions for recovery of amounts paid in connection with customs operations; nevertheless, it reduces that time-limit to three years - and the limitation period prescribed by Article 84 of that consolidated legislation - as from the 90th day following the entry into force of the Law; (4)
- Article 29(2) provides that `import customs duties, manufacturing taxes, consumption taxes, the sugar price supplement and State duties levied under national provisions incompatible with Community provisions shall be repaid, save where the burden thereof has been passed on to others';
- Article 29(7) provides that Article 29(2) is to apply even where the reimbursement relates to amounts paid before the entry into force of the Law (27 January 1991).
10 As regards collection of the sums paid for Italian customs services provided `out of hours' and the calculation of the `cost of the service', they were declared partially incompatible with Community law by the Court of Justice in its judgments in Case 340/87 Commission v Italy (5) and Case C-209/89 Commission v Italy. (6)
11 In the first of those judgments, the Court of Justice analysed Article 11 of Decree No 43 of the President of the Italian Republic of 23 January 1973 consolidating the legislative provisions on customs matters, as amended by Article 1(2) of Decree No 254 of 8 May 1985. It provided for the collection of an amount corresponding to the cost of the service for customs transactions carried out during business hours but outside the normal working hours of civil servants, which in the Italian Republic were six hours a day from Monday to Saturday. The judgment also examined Article 15 of Decree No 254, which provided more generally that the inspections and administrative formalities referred to in the decree which are carried out during the business hours of offices but outside normal civil service hours are to be charged for according to the cost of the service.
12 In that judgment, the Court of Justice held:
`... by charging traders in respect of intra-Community trade the cost of inspections and administrative formalities carried out during part of the normal business hours of customs offices at frontier posts as determined by the second indent of Article 5(1)(a) of Council Directive 83/643 of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States, as amended by Council Directive 87/53, the Italian Republic has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty'.
13 In the second of the judgments cited (Case C-209/89), the Court of Justice held that legislation requiring from each undertaking individually, where services are rendered simultaneously to several undertakings in connection with the completion of customs formalities in intra-Community trade, payment of an amount disproportionate to the cost of the services provided was incompatible with Community law. Both the charges due for service outside normal working hours and those for services provided outside the customs area, governed by the Ministerial Orders of 29 July 1971 and 30 January 1979 respectively, fell into that category.
14 Finally, in its judgment in Aprile I the Court of Justice held that the Member States are not entitled unilaterally to impose charges having equivalent effect in trade with non-member countries: the scope of that prohibition is the same as that which is recognised in intra-Community trade. The corollary of that pronouncement is the obligation to refund customs duties improperly levied by the Italian administration on goods from non-member countries under the rules which were held to be contrary to Community law in the abovementioned judgments.
The second preliminary question
15 I shall analyse first the second question submitted by the national court, relating to the content of the internal rule as such - that is to say, disregarding its temporal effect - and the possibility that it may be contrary to Community law. Such an analysis must logically, in my view, come before consideration of the issue of the retroactivity or otherwise of that rule, with which the first question is concerned.
16 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. (7) So far as is relevant here, it is of little importance that the expression used in the Law (`the five-year time-bar ... shall be deemed to apply') is merely interpretative or is substantive in its effect.
17 The national court asks whether it is compatible with Community law for a provision to lay down that time-limit for the refund of sums unduly paid, where the refund arises as a result of infringement of a Community provision, whereas similar actions for recovery of sums improperly paid under the general law (Article 2033 of the Codice Civile) are subject to a limitation period of ten years.
18 Framed in those terms, the question embodies its own answer: it would involve discrimination contrary to Community law. The fact is, however, that the terms of the problem are different and, according to the views expressed in the documents before the Court, the abovementioned provision applies without distinction to all kinds of actions for recovery of payments to customs, whether based on domestic law or on Community law (leaving aside, I repeat, any question of retroactivity).
19 That is indeed the interpretation which flows naturally from the text of the provision and has been adopted by the Italian case-law: thus, in its judgment of 6 November 1992, (8) the Corte di Cassazione stated: `Article 29(1) of Law No 428 of 1990 ... applies a single set of rules to the refund of payments unduly collected in respect of a large number of taxes (indirect taxes on property), treating in the same way, for that purpose, both duties collected under national provisions that are incompatible with Community provisions and import customs duties and levies on manufacturing and consumption, and so forth, thereby avoiding for refunds in the Community sphere the creation of a jus singulare which would make the exercise thereof less easy'.
20 Starting from that premiss, the question can be seen in terms analogous to those used by other Italian courts in relation to the three-year time-limit applied to claims for refund of the annual government administrative charge for entry of companies on the commercial register, in preliminary-ruling proceedings in which I delivered my Opinion recently (Case C-231/96 EDIS; Case C-260/96 SPAC; and Joined Cases C-279/96 to C-281/96 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.
21 As I pointed out in those Opinions, I consider that no provision or principle of Community law prevents a national legislature from laying down limitation periods bringing about the extinguishment of rights or time-limits beyond which no action may be brought which differ according to the area of law involved, provided that they are applied without distinction to rights deriving from national provisions and to those deriving from Community provisions.
22 The national legislature is free to impose limitation periods or time-limits in the field of taxation and there is no need for them to coincide with those laid down for other relationships under civil law. No provision or principle of Community law obliges it, for such purposes, to treat tax relationships in the same way as relationships inter privatos.
23 Moreover, the Italian legal order sets very different time-limits according to the area of law concerned. Specifically, the general limitation 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 certain rights of action. (9)
24 Like all the Member States that have submitted observations in these proceedings, I see no reason whatever for rejecting the view that a national legislature is entitled to impose for actions to recover tax revenue unduly paid time-limits for commencing proceedings which differ from those applicable to similar actions between private individuals.
25 The legitimacy of such a distinction was, moreover, upheld by the Court of Justice in paragraphs 22 to 25 of its judgment of 27 March 1980 in Denkavit Italiana. (10) After recognising that Community law does not necessarily require a uniform rule common to all the Member States relating to formal and substantive conditions for contesting or recovering 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 area:
- In certain cases, objections to or claims 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 authorities and for legal proceedings.
- In other cases, actions for the repayment of charges unduly paid must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed. Such actions are available for varying lengths of time, in some cases for the limitation period laid down under the general law.
26 The Court immediately went on to say - reiterating what it held in Rewe and Comet (11) - that, from the Community point of view, the conditions to be met by the various national systems regarding claims for recovery of charges unduly pad whose illegality derived from Community law were those already mentioned: there should be no discrimination and the rights of action concerned should not be merely illusory. They are the expression, according to the recent judgment of 10 July 1997 in Palmisani, (12) of the `principle 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.
27 In a case similar to this one, the Court of Justice had an opportunity to clarify its earlier doctrine even further in giving a preliminary ruling on a question by which the national court sought `in substance to ascertain the extent to which it is contrary to the general principles of Community law for national rules to provide for a mandatory time-limit of three years for the submission of all applications for reimbursement of duties unduly paid, where there are no grounds of force majeure justifying an exception'.
28 The reply, given in the judgment of 9 September 1989 in Bessin and Salson, (13) is perfectly applicable to the present case since the legal situations are patently analogous. The national provisions at issue in that case were those of the French customs code, which imposed a time-limit of three years for claims for the recovery of unduly paid import 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.
29 In its ruling on that question, the Court of Justice, after referring to the requirement of non-discriminatory application of national legislation, as compared with proceedings in purely national disputes of the same kind, and stating that such legislation must not make it impossible in practice to exercise the rights conferred by Community law, held that the three-year limitation period reflected `a legislative choice which does not have the effect of undermining the aforesaid requirement'.
30 Finally, in two judgments of 17 July 1997, Texaco and Olieselskabet Danmark (14) and Haahr Petroleum, (15) the Court of Justice repeated the same principle, confirming that `the laying down of reasonable limitation periods, which is an application of the fundamental 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 Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought'. Consequently, it held that the limitation period of five years applied by Danish law to applications for the reimbursement of national taxes contrary to Community law was compatible with Community law, even where it wholly or partly prevented the requested refund.
31 There would thus be discrimination if the Italian provision barring actions for reimbursement of charges unduly paid laid down different time-limits according to the origin - in national or Community law - of the obligation to repay them. That would be the case if the legally prescribed period for claiming a refund of the charge, on the ground of incompatibility with Community law, were shorter than the legally prescribed period for claiming refund of the same charge on any ground of national law. But since that is not the case and the time-limit laid down by Article 29(1) of Law No 428 applies without distinction to all actions for repayment of the charge, whatever their basis, the answer to the second question must uphold the compatibility of that provision with Community law.
32 As regards the remaining aspects of this question, raised not by the national court but by the Commission in its pleadings, (16) I refer to what I said in my Opinion in EDIS (points 51 to 65).
The first preliminary question
33 Having concluded that the provision is in itself compatible with Community law, I must now examine the issues of its effectiveness in time and, specifically, its retroactive application.
34 As pointed out by the Commission and, to some extent, by the French Government, in their observations, there is a degree of confusion on this point. The Commission goes so far as to say that `from the point of view of the temporal effects of the provision at issue, the situation is characterised by perfect confusion: the Law prescribes one thing (it interprets retroactively an earlier provision ...) but the judicial authorities of the Republic, 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)'.
35 The national court makes the assumption, in its first question, that the Law has retroactive effect and that the reduction of time-limits which it introduces (from ten years to five, and from five to three) applies even to cases where time started running before its entry into force.
36 The Corte di Cassazione (Court of Cassation), in its judgment of 6 November 1992, cited above, confirms the retroactive nature of the provision, giving rise to its non-application. The reasoning of that judgment may be summarised in the following points:
(a) according to the provisions existing before the entry into force of Law No 428, the five-year limitation period applicable to the refund of amounts unduly paid, covered by Article 91 of the Consolidated Version of the customs laws, was appropriate only where there were errors of calculation or misapplication of the tariff; in all other cases, the limitation period was the ordinary ten-year period; (17)
(b) after enactment of paragraph 1 of Article 29, the peremptory five-year time-limit (no longer a limitation period) applies to all applications and actions available to secure refunds of any sum paid in connection with customs operations; (18)
(c) that article is not merely interpretative but is also innovative and the legislature's intent was to endow it with retroactivity;
(d) precisely because of that retroactivity, the provision is not compatible with Community law and domestic judicial authorities must disapply it. (19)
37 Even the Italian Administration itself appears to take that point of view: in one of the documents produced by the plaintiff company, (20) the Administration recognises that Article 29(1) of Law No 428 is not an interpretative but an innovative provision and that the three-year expiry period must not be applied to applications for repayment submitted before 27 April 1991: the latter are subject `to the ten-year limitation period provided for by Article 2946 of the Civil Code ...'.
38 A first problem arises from those premisses, one of a merely procedural nature, to which the French Government refers in its observations, expressing doubts as to the very admissibility of the questions submitted: in its opinion, the application of the time-limits laid down in Law No 428 might perhaps (21) allow Aprile to succeed in its claim, with the result that the questions would be merely hypothetical, not being necessary for the decision to be given in the main proceedings.
39 I do not believe, however, that those doubts are such that the questions may be rejected, the appraisal of their relevance being in principle a matter for the national court. (22) And, of course, it is not for the Court of Justice to deal with a question of a purely internal nature, such as the application to the main proceedings of Italian laws governing extinguishment of rights by prescription and time-limits for bringing actions.
40 Although the application pro futuro of Article 29 of Law No 428 does not seem to me to be contrary to Community law, as I have stated earlier, doubts arise as to its application to persons entitled to the repayment of taxes unduly paid at an earlier stage, in that it might involve subjecting them to less favourable conditions for the exercise of their right than those previously enjoyed by them.
41 Its incompatibility with Community law would be clear in cases of applications for repayment lodged before the entry into force of the new time-limits: the principle of legal certainty does not allow such claims to be affected by a later provision not existing at the time of lodgement which detracts from the legal situation of the claimants. That is the view taken by the Italian courts themselves in rejecting retroactive application of the article in question.
42 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 Aprile's case: the customs duties had been (wrongly) paid in 1990, 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 ten-year limitation period). However, its claim did not in fact arise until March 1994.
43 The Court of Justice held in its judgment in Deville (23) that `[a] national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation is incompatible with the Treaty, adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for recovery of taxes which were wrongly levied under that legislation. It is for the national court to determine whether the procedural rule at issue reduces the possibilities of bringing proceedings for recovery which would otherwise have been available'. (24)
44 The Deville case is in some respects different from this one: the French legislature had approved a specific provision (Article 18 of the Law of 11 July 1985) expressly in order to abolish a tax held to be incompatible with Community law, on which the Court of Justice had given a preliminary ruling in its judgment of 9 May 1985 in Humblot. (25) The same article provided that taxpayers who claimed repayment of that tax after 9 May 1985 could obtain it provided that they made their claim within a specified time-limit (about the interpretation of which the parties differed) reckoned from the date of payment of the tax. The Court of Justice considered that it lacked jurisdiction to decide, in a preliminary ruling, whether or not the domestic legislation in fact reduced the possibilities of making a claim that were previously available to the taxpayer.
45 In the present case, on the other hand,
(a) Although the reduction of the possibilities of claiming repayment of the taxes wrongly paid, introduced by the new law as compared with the previous provision, is clear and has been described as such by the national courts, it is also true that that Law - as interpreted by those courts - allows the claim to be made within the three years following its entry into force, (26) a period which must be deemed sufficient to ensure that the right to repayment is effective.
(b) By contrast with Deville, the national legislation at issue is not of a special nature, applicable exclusively to a tax previously held to be incompatible with Community law - it affects a whole range of domestic taxes and the conditions as to limitation periods and time-limits are the same as those already in force as part of the customs legislation.
(c) The enactment of Law No 428 post-dates the judgment of the Court of Justice in Case 340/87 Commission v Italy, cited above, in which only some of the taxes levied under the Italian customs provisions were declared incompatible with Community law. (27) On the other hand, Law No 428 cannot, obviously, be regarded as a legislative measure designed to `react' against other judgments of the Court of Justice delivered after its enactment: that was the position in Case 209/89 Commission v Italy, also cited above, in which other charges levied under those provisions were declared similarly incompatible with Community law, and in Aprile I, concerning goods from non-member countries.
46 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 not yet been commenced but could be under the previous legislation may be regarded as retroactive stricto sensu. As is well known, the views of legal writers on this point differ, as do the solutions adopted in laws and by the highest national courts. (28) But in any event, it is necessary now to consider whether, in so far as it affects situations governed by Community law, that provision would be compatible with the rule in Deville.
47 In other words, must the principle underlying the Deville judgment be deemed to be so absolute as not to allow, in any circumstances, a later legislative change which reduces the previous level of legal protection? Is a taxpayer who has paid a tax contrary to Community law vested, absolutely, with the right to claim it back in accordance with the domestic provisions (neither discriminatory nor illusory in their effect) which were in force when he made the payment or when the incompatibility was declared?
48 The protective intent underlying Deville involves respecting the status quo ante of the taxpayers who had relied on the continuing availability of legal remedies against improper taxation. Such remedies should not be undermined precisely when the tax has been declared - by judicial decision or by legislation - to be unlawful, in that it is contrary to Community law.
49 That must not imply, in my view, an obligation to `crystallise' absolutely the earlier legal rules, to the point of preventing the legislature from altering them. I consider, on the contrary, that a change to those legal rules would be permissible by way of general legislative measure provided that, in addition, it did not deprive the persons affected of their right to seek reimbursement, and they were granted for that purpose an adequate period conforming with the principle of effective judicial protection.
50 That is, precisely, the situation in the main proceedings, from both the legislative and the factual points of view.
51 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, by virtue both of its heading and of its content, Article 29 of Law No 428 relates expressly to the repayment of taxes that are incompatible with Community law. But it is also true that the measure concerned is a generalising measure which seeks specifically to place actions for recovery based on infringements of Community law on the same footing as 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 large number of taxes ...'. (29)
52 From the factual point of view, since the charges were paid by Aprile in November 1990, a few days before the enactment of the new Law No 428, the period of three years allowed by that Law to seek repayment gave the company more than ample opportunity to bring an action for recovery in good time. Thus, over a long period of time following the entry into force of the new Law, there was no obstacle to its exercising its right to recover the tax/charge.
53 To summarise, the circumstances of this case are not analogous to those of Deville and Barra and the dicta of the Court of Justice in those cases must not be interpreted so strictly as to prevent any legislative change to the rules for proceedings to recover improper 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 Community law.
The third and fourth preliminary questions
54 The third and fourth questions relate to the same issue and in my view should be considered together, as they have been by all the parties to the proceedings before this Court. In fact, the third question (as to whether national courts are bound by the principles laid down by the Court of Justice as `unwritten rules' of Community law) causes none of those parties to entertain any doubts: they take it for granted that those rules are binding, as a corollary of the duty to fulfil obligations deriving from the EC Treaty or from the acts of the Community institutions, it being the responsibility of the Court of Justice to ensure that in the interpretation and application of the Treaty the law is observed (Article 164 of the EC Treaty).
55 The national court asks whether a Member State which has not yet brought its domestic law into line with Community provisions having direct effect can invoke the fact that time-limits or limitation periods started to run in the period during which the national provisions incompatible with Community law remained in force. It refers expressly to the impact of the judgment of the Court of Justice in Emmott, (30) regarding which observations have been made both by the Commission, the various Member States and the plaintiff in the main proceedings.
56 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 that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time'. (31)
57 It is true that the scope of Emmott had nevertheless subsequently been cut down by the Court of Justice when it emphasised that the rule in that case can be applied only when the same singular circumstances arise as characterised that case. In its judgments in Steenhorst-Neerings (32) and in Johnson, (33) the Court of Justice confirmed that national limitation periods applied to requests for payment of sums owing in respect of social benefits under certain directives, even where the directives in question had not been properly incorporated into national law.
58 While the present case has been pending, the Court of Justice has given judgment in Haahr Petroleum and Texaco and Olieselskabet Danmark, cited above. In them it again rejected application of the principle laid down in Emmott. In both cases a claim for a refund - based on infringement of Article 95 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 Justice repeated that, even where that provision wholly or partly prevented the repayment of the taxes in question, its application to those two cases was not contrary to Community law.
59 Finally, two months before the hearing in this case the Court of Justice gave judgment in Fantask, (34) which is particularly important in the present context since the factual and legal aspects of that case and this were similar.
60 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 of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive'. The submissions of the plaintiff companies and of the Commission were also based on the rule in Emmott, the application of which was argued against by the Governments that submitted observations.
61 The Court of Justice chose once more to adopt the last-mentioned solution, reiterating the line of reasoning which I have outlined above.
62 First, as a general principle, it pointed out that, in the absence of Community legislation on the matter, it is for the domestic legal order of each Member State to regulate proceedings for the recovery of sums unduly paid, provided that the conditions are not less favourable than those governing similar domestic claims and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.
63 Secondly, after emphasising the compatibility with Community law of the setting of reasonable time-limits within which proceedings had to be commenced or else be barred, in the interests of legal certainty which protects both the taxpayer and the Administration, it stressed that it cannot be considered that such time-limits make it virtually impossible 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 applied in the same way to actions based on Community law as to those based on domestic law.
64 Thirdly, it again rejected the application to proceedings of this kind of the rule in Emmott, the solution adopted in that case being justified by its own special circumstances in which the time bar had the effect of entirely depriving the plaintiff of any opportunity of asserting her right to equal treatment under a Community directive.
65 Finally, the Court of Justice concluded `Community law, as it now stands, does not prevent a Member State which has not properly 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 became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.'
66 In view of the clarity of the terms used by the Court and of the evident analogy between the factual and legal situations in Fantask and this case, the Commission decided, at the hearing, not to adhere to its earlier position and conceded that the question had been definitively settled by the judgment in Fantask. The plaintiff in the main proceedings, on the other hand, endeavoured on the same occasion to highlight differences between Danish and Italian law which made it inappropriate to apply the rule in Fantask to the present case.
67 In my opinion that endeavour was misconceived. First, because its point of departure was wrong: rather than finding alleged differences between Fantask and that case, what it needed to prove was that the situations in Emmott and that case were analogous, 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. On the contrary, nothing prevented the Italian companies from exercising their right of appeal against the tax assessments made against them.
68 Second, and regardless of the foregoing 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 applicable to a specific class of taxes and whether or not there has been a change in the case-law on the interpretation of that pre-existing provision, what is important is that the Court of Justice has confirmed that the time-limit - of five or of three years - which can be relied on to resist actions, founded on Community law, for the repayment of taxes improperly levied, may start to run from the time at which they were paid and not from the time at which the State properly transposed the directive into national law.
Conclusion
I therefore suggest that the Court of Justice give the following answers to the questions referred to it by the Giudice Conciliatore, Milan:
(1) Community law does not prevent domestic legal systems from imposing a peremptory time-limit of three years for actions to be brought against the revenue authorities for the repayment of taxes unduly paid, even where that time-limit is different from that laid down for actions for the recovery of sums unduly paid between private individuals, provided that the said time-limit applies without distinction to actions for repayment based on grounds of national law and to actions based on the application of Community provisions;
(2) A national provision which, in order to unify the legal rules applicable to certain classes of taxes, reduces the limitation periods or time-limits for the commencement of proceedings previously applicable to the repayment of taxes levied in breach of a directive is not contrary to Community law, provided that that provision still allows an adequate period (for example, three years) as from its entry into force for the actions concerned to be brought;
(3) Community law does not preclude the application to a claim for repayment of a tax that is incompatible with a directive of a national provision under which an action to secure repayment of taxes unduly paid is time barred on the expiry of three years after the time of payment, even where that provision wholly or partly prevents repayment of the taxes in question.
(1) - Case C-125/94 Aprile [1995] ECR I-2919.
(2) - Law on Compliance with the Obligations Deriving from Italy's Membership of the European Communities (GURI, 1991 supplement, No 10).
(3) - The wording of paragraph 1 is as follows: `The five-year time-limit laid down in Article 91 of the Consolidated version of the provisions relating to customs duties, approved by Decree No 43 of the President of the Republic of 23 January 1973, shall be deemed to apply to all claims and actions which may be brought for refund of sums paid in connection with customs operations. That period, and also the limitation period laid down in Article 85 of the same instrument, shall be reduced to three years as from the ninetieth day following the entry into force of this Law.' Article 91 of the Consolidated Law originally provided: `The taxpayer shall be entitled to refund of the sums overpaid in respect of the debt in consequence of errors of computation in the assessment or of the application of a duty not provided for in the tariff applicable to the goods described in the record of examination, provided that the claim is lodged within the non-extendible period of five years, reckoned from the day of payment, and provided that the claim is accompanied by the original invoice proving payment'.
(4) - Law No 428, published in the Gazetta Ufficiale of 12 January 1991, entered into force on 27 January of the same year; consequently, the period of five years was reduced to three as from 21 April 1991.
(5) - [1989] ECR 1483.
(6) - [1991] ECR I-1575.
(7) - At the hearing, counsel for the plaintiff company invoked the `civil' nature of the sum paid since, in his view, it constituted `remuneration for a service' within a relationship between parties on an equal footing in which there was no exercise of any public authority. Quite apart from the fact that it seems to me to be very difficult to uphold that thesis in relation to customs charges, regulated by the public authorities and deriving from the action of public officials in the discharge of their duties, such a contention can be answered only by the national court in accordance with the approach adopted in its own legislation.
(8) - The judgment bears number 12024 (Massimario del Foro Italiano 1992) and corresponds to General List No 4373/91. Sometimes it is cited by reference to the date appearing in its text (10 April 1992) and sometimes by reference to the date on which it was entered in the Registry (6 November 1992).
(9) - In the Italian Codice Civile itself, Article 2947 et seq., under the headings `Short limitation periods' and `Deemed limitation 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.
(10) - Case 61/79 [1980] ECR 1205.
(11) - Case 33/76 REWE [1976] ECR 1989 and Case 45/76 Comet [1976] ECR 2043.
(12) - Case C-261/95 [1997] ECR I-4025.
(13) - Case 386/87 [1989] ECR 3551, paragraphs 15 to 18.
(14) - Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263, paragraphs 45 to 49.
(15) - Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53.
(16) - The Commission confined itself, on this point, to referring to its observations in EDIS.
(17) - `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 Version of the customs laws (concerning the five-year limitation 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 Administration 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).'
(18) - `The appeal (in cassation), however, must be seen in the light of the subsequent legislation, namely paragraph 1 of Article 29 of Law No 428 of 29 December 1990; the latter, referring to Article 91 of the Consolidated version of the customs laws, mentioned the peremptory five-year time-limit (no longer a limitation period) and declared it applicable to all applications and actions available to secure refunds of any sum paid in connection with customs operations'.
(19) - `Nevertheless, in interpreting that provision, this Court has declared (judgment No 7248 of 1991) that it is totally and fully innovative, in that it has converted a limitation period into a peremptory time-limit and has extended the application of Article 91 to cases (such as revenue levied in breach of Community law) certainly not covered by the previous wording of that article. Therefore, even if it is admitted that the legislature intended making that provision retroactive, the latter, as already stated on the basis of arguments substantially confirmed by the Constitutional Court (Order No 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 peremptory time-limits) and can even cause it to disappear (since decisions concerning the barring of rights of action are made ex officio).'
(20) - Annex No 6. It is the reply given on 23 April 1996 to the representative of the company by the Ministry of Finance, Department of Customs and Indirect Taxes, referring to the opinion of the office of the Avvocato dello Stato.
(21) - The order for reference voices similar doubts, in so far as it states: `In this case, the liquidators of Aprile notified the claim for repayment on 30 March 1994, that is to say, after Law No 428/1990 entered into force and when the prescription period had to be regarded as having been reduced to three years. The ninetieth day following the entry into force of Law No 428/1990, as from when the five-year period was reduced to three years, expired on 27 April 1991, as a result of which the claim of Aprile's liquidators was notified within the three-year period if it is held to run from that day, but would have to be regarded as having been notified outside the three-year period if the periods for the lapsing of claims laid down by the provision have to be regarded as being "in course" on the date when the Law itself entered into force.'
(22) - However, I must admit that I find the French Government's thesis convincing: if the three-year time-limit did not come into force until 27 April 1991 and the application for repayment was lodged on 30 March, the relevant time-limit was the generally applicable period of five years, not affected by the reduction to three years which Law No 428 introduced only with effect from the ninetieth day after its entry into force (namely, as from 27 April 1991). In those circumstances, the application for repayment made by Aprile was lodged in time.
(23) - Case 240/87 Deville v Administration des Impôts [1988] ECR 3513.
(24) - The same principle had already been enunciated in the judgment of 2 February 1988 in Case 309/85 Barra [1988] ECR 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 Justice (Case 293/83 Gravier [1985] ECR 593) to those who had submitted their claim before the latter judgment was delivered.
(25) - Case 112/84 [1985] ECR 1367.
(26) - The same view was expressed at the hearing by the representative of the Italian Government.
(27) - See point 10 of this Opinion.
(28) - The national court emphasises in the order for reference that, under Article 252 of the implementing and transitional provisions 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 exercise of rights that arose earlier, but starts to run as from the entry into force of the new provision. Similar rules are found in numerous civil codes and similar legislation.
(29) - See in that connection the citation from a judgment of the Corte di Cassazione in point 19 of this Opinion.
(30) - Case C-208/90 [1991] ECR I-4269.
(31) - Paragraph 23.
(32) - Case C-338/91 [1993] ECR I-5475.
(33) - Case C-410/92 [1994] ECR I-5483.
(34) - Case C-188/95 [1997] ECR I-6783, paragraphs 42 to 52.
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