Opinion of the Advocate-General
1 The Pretore di Bolzano (Italy) has referred to the Court of Justice for a preliminary ruling six questions on the impact of the provisions and principles of Community law on the national legal rules - Italian Law No 428 of 29 December 1990 (hereinafter `Law No 428') - (1) which govern the repayment of certain taxation improperly levied by the Italian administration.
Facts, procedure and preliminary questions
2 The plaintiff company paid the Italian administration on 12 March 1988 the sum of ITL 6 945 756 in respect of consumption tax for a consignment of bananas imported through the Brenner customs office.
3 Taking the view that the tax paid was not due, being incompatible with Community law, in 1991 Dilexport Srl submitted a request to the administration for repayment of the relevant amount. Since its request was not acceded to, it brought proceedings before the Pretore di Bolzano, who had territorial jurisdiction, for a payment order under Article 633 of the Code of Civil Procedure to secure reimbursement.
4 The Pretore, as a preliminary to giving judgment, referred the following questions to the Court of Justice for a preliminary ruling:
`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 third 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 according to 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?'
The national legislative context and the Community legislative context
5 Article 29 of Law No 428, (2) 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; (3)
- 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(4) provides that claims 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
- 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).
- Article 29(8) provides that paragraph 4 is to apply from the fiscal year in which the Law enters into force.
6 The special consumption tax on bananas from other Member States, which the plaintiff company paid and for which it seeks reimbursement, was declared incompatible with Community law by the Court of Justice in its judgment of 7 May 1987 in Commission v Italy, (4) since it infringed the second paragraph of Article 95 of the EEC Treaty. The judgment of the same date in Co-Frutta, (5) reiterated that that provision precluded a consumer tax imposed on certain imported fruit where it may protect domestic production of fruit and that Article 95 of the EEC Treaty covers all products coming from Member States, including products originating in non-member countries which are in free circulation in the Member States.
Consideration of the questions
7 In considering the questions, I shall group them according to their content, even though this does not wholly coincide with the order in which they are set out in the order for reference:
(a) first, the applicability of two sets of legal rules to the right to secure reimbursement of taxes paid but not due (first and second questions);
(b) secondly, problems of time - namely, limitation periods and time-limits and retroactivity - arising from the application of Law No 428 to repayment of the tax (third question);
(c) third, reliance on presumptions as evidence in deciding whether the tax has been passed on to third parties (fourth and fifth questions);
(d) finally, the requirement that claims for repayment be notified to the tax administration (sixth question).
The first and second questions
8 The first and second questions submitted by the national court relate 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. My analysis of them must logically, in my view, come before consideration of the issue of the retroactivity or otherwise of that rule, with which the third question is concerned.
9 Article 29(1) of Law No 428, transcribed above, reflects a clear legislative intention: to apply the same five-year time-limit imposed by the customs legislation to every kind of claim and right of action for recovery of sums paid in respect of customs operations. So far 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.
10 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.
11 The terms of the question are 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-218/96 Ansaldo and Others). The issue is, ultimately, whether it is permissible for actions against the revenue authorities for recovery of overpayments to be subject to time-limits or limitation periods different from those laid down for similar proceedings between private persons.
12 As I pointed out in those my 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.
13 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.
14 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. (6)
15 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.
16 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. (7) 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.
17 The Court immediately went on to say - reiterating what it held in Rewe and Comet (8) - that, from the Community point of view, the conditions to be met by the various national systems regarding claims for recovery of charges unduly paid the illegality of which 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, (9) 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.
18 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'.
19 The reply, given in the judgment of 9 September 1989 in Bessin and Salson, (10) 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, to claims for the refund of sums unduly paid.
20 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'.
21 Finally, in two judgments of 17 July 1997, Texaco and Olieselskabet Danmark (11) and Haahr Petroleum, (12) 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 condition 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.
22 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.
23 That in fact is the interpretation which follows naturally from the wording of the provision and the one that has been adopted in the Italian case-law: thus, the Corte di Cassazione, in its judgment of 6 November 1992, (13) 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'.
The third preliminary question
24 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.
25 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)'.
26 The Corte di Cassazione, 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; (14)
(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; (15)
(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. (16)
27 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.
28 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 lodgment 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.
29 But the problem affects not only claims already submitted before 27 April 1991 but also those submitted after that date where they concerned taxes paid before the new Law entered into force. That is precisely what happened in Dilexport's case: the customs duties had been (wrongly) paid in 1988, before the enactment of Law No 428, as a result of which any claim it might have was then legally admissible within the next ten years (ordinary ten-year limitation period). However, its claim did not in fact arise until 1991.
30 The Court of Justice held in its judgment in Deville (17) 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'. (18)
31 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. (19) 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.
32 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, (20) 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.
33 I do not think it is necessary, at this point, to consider whether a provision which reduces the time-limits for bringing actions that have 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. (21) 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.
34 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?
35 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.
36 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.
37 That is, precisely, the situation in the main proceedings, from both the legislate and the factual points of view.
38 First, the national provision does not affect just one specific tax but is clearly a measure generally extending an existing set of legal rules (as laid down by the Consolidated Version of the customs laws). It is true that, 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 ...'. (22)
39 From the factual point of view, since the charges were paid in 1988, 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.
40 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
41 In its fourth and fifth questions, the national court inquires about the possibility of relying on presumptions in order to determine whether an undertaking, after paying the improperly levied tax, later passed it on to third parties. As is well known, the Court of Justice concedes, subject to certain slight reservations, that the tax administration is not under an obligation to repay the amount of the tax to the taypayer which the latter paid and subsequently passed on to third parties.
42 The premisses on which the court relies, in relation to the domestic legal situation, are rejected by the Italian Government: in the latter's opinion, the passing on of consumer taxes has not always been characterised in Italian law as an `accepted fact', nor has reliance on the evidence of presumptions resulted in the `systematic exclusion of claims for repayment'.
43 The issue being framed in those terms, and given that the wording of Article 29 of Law No 428, to which the national court refers in the third question, makes no reference whatsoever to a legal presumption of passing on, (23) I fear that the answer to be given by the Court of Justice cannot in this case go further than repeating its earlier case-law in this area, set out in the judgment of 14 January 1997 in Comateb. (24)
44 In response to a question from a court which wished to know `whether a Member State may object to repayment of a charge levied but not due on the ground that it has been passed on to the purchaser, when that State's legislation actually requires the charge to be passed on', the Court of Justice, relying on the judgments of 27 February 1980 in Just, (25) Denkavit Italiani, cited above, San Giorgio, cited above, and Bianco and Gira, (26) was:
- First, that `the entitlement to the repayment of charges levied by a Member State in breach of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting such charges ... . The Member State is therefore in principle required to repay charges levied in breach of Community law'.
- Secondly, and as an exception to that principle, that `the protection of the right so guaranteed by the Community legal order does not require the repayment of taxes, charges and duties levied in breach of Community law where it is established that the person required to pay such charges has actually passed them on to other persons (see, in particular, San Giorgio, paragraph 13)'.
- Finally, that `it is ... for the national courts to determine, in the light of the facts in each case, whether the burden of the charge has been transferred in whole or in part by the trader to other persons ...'.
45 As regards the procedural aspects of the question, the statement made by the Court of Justice in Bianco and Girard, cited above, remains valid: `in this respect it must be stressed that, even though indirect taxes are designed in national law to be passed on to the final consumer and in commerce are normally passed on in whole or in part, it cannot be generally assumed that the charge is actually passed on in every case. The actual passing on of such taxes, either in whole or in part, depends on various factors in each commercial transaction which distinguish it from other transactions in other contexts. Consequently, the question whether an indirect tax has or has not been passed on in each case is a question of fact to be determined by the national court which may freely assess the evidence. However, in the case of indirect taxes, it may not be assumed that there is a presumption that they have been passed on and that it is for the taxpayer to prove the contrary.'
46 Although, therefore, there may be no general presumption that the tax has been passed on, that conclusion does not mean that the national court, in certain circumstances, having regard to the issues of fact and law before it, cannot take a view as to whether, in legal terms, the tax has been effectively passed on or transferred, relying on the evidence admissible under its procedural laws.
47 The appraisal of such evidence is a matter reserved absolutely to the national court, which to that end may assess the evidence by all means available to it under its procedural law. They without doubt will include cautious reliance upon presumptions, in certain cases: on the basis of a proven fact, and provided that there is a precise and direct link between that fact and that which is sought to be proved, the court may, respecting the rules as to reasonableness, `presume' for procedural purposes that the latter fact is substantiated.
48 The acceptance of presumptions of that kind, which differ from those generally provided for by law as praesumptiones juris et de jure or praesumptiones juris tantum, is common to most legal systems and, in some degree, inherent in the judicial function: in disposing of a particular case, a judge often relies on presumptions, whether explicit or implicit, in order to reach a view as to whether or not an alleged circumstance actually exists.
49 The case-law of the Court of Justice does not therefore prevent a judge from relying on presumptions as a form of evidence in the sense described above: but it does prevent him from taking as a starting point the general presumption that an indirect tax contrary to Community law has been passed on, even if the obligation to do so was laid down by national law.
50 The Court of Justice has given its views on legal presumptions of passing on and has held them to be incompatible with Community law. The same must apply to a general and abstract presumption of passing on which, albeit having no status in law, is established by judicial decision in view of the lack of legal provisions. As I have said, that does not mean that, in each specific case, the competent judicial authorities may not rely on presumptions as an additional means of proof in reaching a view as to whether a tax has actually been passed on.
51 Perhaps an example will be helpful: a national court could not presume, without more information, that a particular undertaking has passed on to its customers all the indirect taxes previously paid by it to the revenue authorities; but, if it were proved to the court (by means of accounting, economic or other reports or other forms of evidence) that the undertaking in question, in particular years and in respect of particular products, in general passed on the tax, the court could, when adjudicating on a specific case arising in that period, rely on the `presumption' that on that occasion too the tax had been passed on.
52 In short, I am of the opinion that the answer to be given by the Court of Justice should reiterate its previous rulings: it is for the national court in each case to consider whether or not a tax has been passed on as a question of fact in relation to which the evidence must be freely assessed and for the determination of which all forms of evidence available under national law are admissible. Nevertheless, the national court may not affirm that, in the case of indirect taxes, there is a general presumption to the effect that the taxes have been passed on and, therefore, that it is incumbent on the taxpayer to prove the contrary.
The sixth question
53 Article 29(4) of Law No 428 imposes a new procedural requirement for claims for the reimbursement of the duties and taxes referred to in Article 29(2) and (3): where the sums concerned have contributed to the income of the undertaking, the claims must be notified to the tax office which received the tax return for the year in question, failing which they will be inadmissible.
54 The reason for and the fiscal aim of this requirement are obvious: if the undertaking described as an `expense' the amount of the tax unduly paid, deducting it from its income for a tax year and determining its taxable income on that basis, it is logical that, when a claim for the repayment of that tax is pursued, the revenue authority should be apprised of it and be in a position to take appropriate action.
55 It is true that the Italian legislature could have achieved the same end by less rigorous measures from the procedural point of view: ultimately, claims for the repayment of taxes improperly levied are made against the administration, which will necessarily have notice of them through the office of the Avvocatura dello Stato or any other of its representatives for legal proceedings, for which reason it seems otiose to require claimants also to give specific notice of their claims to another administrative agency. But it is not within the jurisdiction of the Court of Justice to give views on the convenience or appropriateness of measures of that kind.
56 From the Community point of view there is no objection to such a measure if, as stated in the article transcribed above, it applies without distinction to the repayment of the taxes and duties referred to in Article 29(2) and (3), regardless of whether the obligation to repay the tax derives from its incompatibility with Community law or has some other origin.
57 On the contrary, it would be incompatible with Community law for that measure to be extended retroactively both to claims for repayment of taxes submitted to the administration and to judicial proceedings brought against the administration (27) for the same reason, where both occurred before the entry into force of the law. Such a retroactive extension would make it unworkable to bring proceedings for repayment, in a manner already proscribed by Community case-law, since it would purport to impose ex post facto a requirement which, when the legal proceedings were started or the administrative claims submitted, did not have to be fulfilled and is, subsequently, impossible to comply with.
58 Article 29(8) provides that the requirement to give notice to the tax office `... is to apply from the fiscal year in which this Law enters into force'. Although the interpretation of that provision was the subject of differing views in the written procedure before this Court - as can be seen from a comparison of the Italian Government's submissions and those of the plaintiff company - both parties agreed at the hearing that the Corte di Cassazione had resolved the matter by holding that the provision was not retroactive.
59 Judgment No 10697 of the Corte di Cassazione of 29 October 1997 recognises that the duty to give notice to the tax administration of claims for the repayment of taxes levied in breach of Community law relates only to tax years following the entry into the force of Law No 428, and not prior years. In reaching that conclusion, it relies on the fact that any other interpretation would undermine not only Italian constitutional case-law but also the case-law of the Court of Justice regarding the principle of effectiveness of judicial protection.
60 Since, therefore, there is no risk of retroactive application and there are no doubts as to observance of the principle of equivalence, the obligation contained in the provision in question does raise not any problems from the Community law point of view.
Conclusion
Consequently, I suggest that the Court of Justice give the following answers to the questions submitted by the Pretura Circondariale di Bolzano:
(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) It is for the national court in each case to consider whether or not a tax has been passed on as a question of fact in relation to which the evidence must be freely assessed and for the determination of which all forms of evidence available under national law are admissible. Nevertheless, the national court may not affirm that, in the case of indirect taxes, there is a general presumption to the effect that the taxes have been passed on and, therefore, that it is incumbent on the taxpayer to prove the contrary.
(4) Nothing precludes national law from requiring that claims for repayment of taxes paid when not due, on the ground that they are contrary to Community law, be notified to the relevant tax authorities, failing which such claims become inadmissible. Such inadmissibility may not be retroactive, that is to say it may not apply to claims made before that entry into force of the legal provision in question.
(1) - Law on compliance with the obligations deriving from Italy's membership of the European Communities (GURI, 1991 supplement, No 10).
(2) - 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'.
(3) - 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.
(4) - Case 184/85 [1987] ECR 2013.
(5) - Case 193/85 [1987] ECR 2085.
(6) - 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.
(7) - Case 61/79 [1980] ECR 1205.
(8) - Case 33/76 REWE [1976] ECR 1989 and Case 45/76 Comet [1976] ECR 2043.
(9) - Case C-261/95 [1997] ECR I-4025.
(10) - Case 386/87 [1989] ECR 3551, paragraphs 15 to 18.
(11) - Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263, paragraphs 45 to 49.
(12) - Case C-90/94 [1997] ECR I-4085, paragraphs 46 to 53.
(13) - The judgment bears the number 12024 (Massimario del Foro Italiano 1992) and corresponds to General List No. 4273/91. Sometimes it is cited by reference to the date appearing in its text (10 April 1992) and sometimes by reference to the date on which it was entered in the Registry (6 November 1992).
(14) - `On the question of the limitation period, this Court has expressed its view on numerous occasions to the effect that - according to the wording of the provision prior to the entry into force of paragraph 1 of Article 29 of Law No 428 of 29 December 1990 - Article 91 of the Consolidated 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).'
(15) - `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'.
(16) - `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).'
(17) - Case 240/87 Deville v Administration des Impôts [1988] ECR 3513.
(18) - 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 v [1985] ECR 593) to those who had submitted their claim before the latter judgment was delivered.
(19) - Case 112/84 [1985] 1367.
(20) - The same view was expressed at the hearing by the representative of the Italian Government.
(21) - 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.
(22) - See in that connection the citation from a judgment of the Corte de Cassazione in point 19 of this Opinion.
(23) - Article 29(2) of Law No 428 provides that customs duties are to be repaid, `save where the burden thereof has been passed on to others'. The absence of any presumption is obvious, in clear contrast to the earlier Italian provision, examined in the Court's judgment in Case 199/82 San Giorgio [1983] ECR 3595. The latter provision (Article 10 of Decree-Law No 430 of 10 July 1982) expressly provided for a legal presumption of passing on, solely on the ground that the goods subject to the customs charge or tax on manufacturing or consumption had been transferred, processed, delivered or otherwise dealt with. The 1990 Italian legislature, having regard to the San Giorgio judgment, removed that legal presumption from the new law.
(24) - Joined Cases C-192/95 to C-218/95 [1997] ECR I-165.
(25) - Case 68/79 [1980] ECR 501.
(26) - Joined Cases 331/85, 376/85 and 378/85 [1988] ECR 1099.
(27) - There has been some debate, reflected in the submissions of the plaintiff, as to whether the interpretation of the term `domanda di rimborso' should cover only legal proceedings in the strict sense or also claims for repayment submitted through administrative channels.
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