61979J0826

1 . FREE MOVEMENT OF GOODS - CUSTOMS DUTIES - CHARGES HAVING EQUIVALENT EFFECT - PROHIBITION - DIRECT EFFECT

( EEC TREATY , ART . 13 ; REGULATION NO 14/64 OF THE COUNCIL , ART . 12 )

2 . PRELIMINARY QUESTIONS - INTERPRETATION - TEMPORAL EFFECTS OF INTERPRETATIVE JUDGMENTS - RETROACTIVE EFFECT - LIMITS - LEGAL CERTAINTY

( EEC TREATY , ART . 177 )

3 . COMMUNITY LAW - DIRECT EFFECT - RIGHTS OF INDIVIDUALS - PROTECTION BY NATIONAL COURTS - PRINCIPLE OF COOPERATION

( EEC TREATY , ART . 5 )

4 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL CHARGES INCOMPATIBLE WITH COMMUNITY LAW - RECOVERY - DETAILED RULES - APPLICATION OF NATIONAL LAW - CONDITIONS - TAKING ACCOUNT OF FACT THAT CHARGE MAY HAVE BEEN PASSED ON - PERMISSIBILITY

5 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL CHARGES INCOMPATIBLE WITH COMMUNITY LAW - RECOVERY - DETAILED RULES - APPLICATION OF NATIONAL LAW - PERMISSIBILITY HAVING REGARD TO PROVISIONS OF TREATY RELATING TO FREE MOVEMENT OF GOODS , COMPETITION AND THE PROHIBITION OF TAX DISCRIMINATION

( EEC TREATY , ARTS . 9 , 12 , 13 , 92 , 93 AND 95 )

1 . THE PROHIBITION ON THE LEVYING OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES , WHETHER IT HAS ITS ORIGIN IN THE GENERAL RULE CONTAINED IN ARTICLE 13 OF THE TREATY WITH EFFECT FROM 1 JANUARY 1970 , AT THE END OF THE TRANSITIONAL PERIOD , OR IN THE SPECIAL PROVISION OF ARTICLE 12 OF REGULATION NO 14/64 WITH EFFECT , AS REGARDS THE PRODUCTS REFERRED TO BY THE REGULATION , FROM 1 NOVEMBER 1964 , HAS A DIRECT EFFECT IN THE RELATIONS BETWEEN THE MEMBER STATES AND THEIR SUBJECTS THROUGHOUT THE COMMUNITY AS FROM THE DATE PRO- VIDED FOR THE IMPLEMENTATION OF THE PROVISIONS IN QUESTION .

2 . THE INTERPRETATION WHICH , IN THE EXERCISE OF THE JURISDICTION CONFERRED UPON IT BY ARTICLE 177 OF THE EEC TREATY , THE COURT OF JUSTICE GIVES TO A RULE OF COMMUNITY LAW CLARIFIES AND DEFINES WHERE NECESSARY THE MEANING AND SCOPE OF THAT RULE AS IT MUST BE OR OUGHT TO HAVE BEEN UNDERSTOOD AND APPLIED FROM THE TIME OF ITS COMING INTO FORCE . IT FOLLOWS THAT THE RULE AS THUS INTERPRETED MUST BE APPLIED BY THE COURTS EVEN TO LEGAL RELATIONSHIPS ARISING AND ESTABLISHED BEFORE THE JUDGMENT RULING ON THE REQUEST FOR INTERPRETATION , PROVIDED THAT IN OTHER RESPECTS THE CONDITIONS ENABLING AN ACTION RELATING TO THE APPLICATION OF THAT RULE TO BE BROUGHT BEFORE THE COURTS HAVING JURISDICTION ARE SATISFIED .

IT IS ONLY EXCEPTIONALLY THAT THE COURT MAY , IN APPLICATION OF THE GENERAL PRINCIPLE OF LEGAL CERTAINTY INHERENT IN THE COMMUNITY LEGAL ORDER AND IN TAKING ACCOUNT OF THE SERIOUS EFFECTS WHICH ITS JUDGMENT MIGHT HAVE , AS REGARDS THE PAST , ON LEGAL RELATIONSHIPS ESTABLISHED IN GOOD FAITH , BE MOVED TO RESTRICT FOR ANY PERSON CONCERNED THE OPPORTUNITY OF RELYING UPON THE PROVISION AS THUS INTERPRETED WITH A VIEW TO CALLING IN QUESTION THOSE LEGAL RELATIONSHIPS .

3 . IT IS THE COURTS OF THE MEMBER STATES , APPLYING THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE EEC TREATY , WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW .

4 . IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE CONTESTING OR RECOVERY OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY DEMANDED OR WRONGFULLY LEVIED BY REASON OF THEIR INCOMPATIBILITY WITH COMMUNITY LAW IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO SAFEGUARD THE RIGHTS WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS HAVE A DUTY TO PROTECT .

HOWEVER , COMMUNITY LAW DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY LEVIED TO BE GRANTED IN CONDITIONS SUCH AS WOULD INVOLVE AN UNJUSTIFIED ENRICHMENT OF THOSE ENTITLED . THERE IS THEREFORE NOTHING FROM THE POINT OF VIEW OF COMMUNITY LAW TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT , IN ACCORDANCE WITH THEIR NATIONAL LAW , OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO PURCHASERS .

5 . THE SYSTEM OF PROTECTION WHICH SUBJECTS HAVE AS A RESULT OF THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW IN CONJUNCTION WITH THE SPECIAL FEATURES OF NATIONAL LAWS WHICH GOVERN IN THE VARIOUS MEMBER STATES MATTERS OF FORM AND SUBSTANCE IN RELATION TO RECOVERING NATIONAL TAXES WHICH HAVE BEEN PAID IN CONTRAVENTION OF COMMUNITY LAW CANNOT BE REGARDED AS INCOMPATIBLE EITHER WITH ARTICLES 9 , 12 , 13 , 92 , 93 AND 95 OF THE EEC TREATY OR , IN A MORE GENERAL WAY , WITH THE PRINCIPLES OF COMMUNITY LAW RELATING TO THE FREE MOVEMENT OF GOODS , THE ESTABLISHMENT OF A SYSTEM ENSURING THAT COMPETITION WITHIN THE COMMON MARKET IS NOT DISTORTED OR THE PROHIBITION OF DISCRIMINATION IN TAX MATTERS .

IN CASE 826/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ITALIAN CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION )

AND

S.A.S . MEDITERRANEA IMPORTAZIONE , RAPPRESENTANZE , ESPORTAZIONE , COMMERCIO ( MIRECO )

ON THE INTERPRETATION OF ARTICLES 9 , 12 , 13 , 92 , 93 , 95 , 171 , 177 AND 189 OF THE EEC TREATY ,

1 BY AN ORDER OF 5 NOVEMBER 1979 , WHICH REACHED THE REGISTRY OF THE COURT OF JUSTICE ON 21 DECEMBER 1979 , THE ITALIAN CORTE SUPREMA DI CASSAZIONE , IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY , REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE FOLLOWING TWO QUESTIONS :

' ' ( A ) WITH REGARD TO THE BASIC PRINCIPLES OF COMMUNITY LAW CONCERNING THE FREE MOVEMENT OF GOODS , FREEDOM OF COMPETITION , NON-DISCRIMINATION IN TAX MATTERS AND IN PARTICULAR WITH REGARD TO THE RULES LAID DOWN IN ARTICLES 9 , 12 , 13 , 92 , 93 AND 95 OF THE TREATY AND , IN RESPECT OF THE SYSTEM OF GUARANTEES PROVIDED BY THE COMMUNITY SYSTEM ITSELF AND IN PARTICULAR BY ARTICLES 171 , 177 AND 189 OF THE TREATY FOR THE RIGHTS OF PERSONS WHICH ARE SAFEGUARDED BY THOSE PRINCIPLES AND RULES , MUST THE RIGHT OF A PERSON WHO HAS PAID THE CHARGE IN QUESTION TO RECOVER , FROM THE STATE WHICH HAS IMPOSED IT , WITH OR WITHOUT ADDITIONAL SUMS , THE AMOUNT IMPROPERLY PAID BE ACKNOWLEDGED UNCONDITIONALLY OR PROHIBITED UNCONDITIONALLY OR UPHELD WITHIN SPECIFIED LIMITS AND ON GIVEN CONDITIONS ( IN WHICH CASE WHAT ARE THOSE LIMITS AND CONDITIONS AND WHICH COURT , THE COURT OF JUSTICE OR A NATIONAL COURT , HAS JURISDICTION TO ASCERTAIN THEIR PRESENCE IN PARTICULAR CASES?

) WHICH THE NATIONAL LEGAL SYSTEMS , WHICH MAY DIFFER ONE FROM ANOTHER , APPLY TO THE COLLECTION , PROVIDED FOR BY THE PROVISIONS OF SUCH SYSTEMS , OF CHARGES ON IMPORTATION WHICH ARE PROHIBITED BY THE COMMUNITY PROVISIONS AS THEY MAY BE INTERPRETED INITIALLY BY THE NATIONAL COURT AND SUBSEQUENTLY BY THE COURT OF JUSTICE?

( B)IF IN THE REPLY TO THE FOREGOING QUESTIONS IT IS RULED THAT THERE IS A PROHIBITION AGAINST SUCH RECOVERY , WHICH ALTERNATIVE MEASURES , CAPABLE OF SECURING IN PRACTICAL TERMS BEFORE THE NATIONAL COURTS THE RIGHT OF THE PARTY WHO HAS SUFFERED DAMAGE THROUGH MAKING THE UNDUE PAYMENT , ARE COMPATIBLE WITH COMMUNITY LAW?

' '

2 THOSE QUESTIONS HAVE BEEN REFERRED TO THE COURT IN THE COURSE OF ACTIONS BROUGHT BY A TRADER AGAINST THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO FOR REPAYMENT OF CHARGES FOR HEALTH INSPECTIONS ON IMPORTS OF BOVINE ANIMALS FROM NON-MEMBER COUNTRIES PAID BY THAT TRADER FOR THE PERIOD FROM 12 DECEMBER 1964 TO 31 DECEMBER 1973 , IN RESPECT OF WHICH IT IS NOT DISPUTED THAT THEY ARE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .

3 THE PROHIBITION WITH EFFECT FROM 1 NOVEMBER 1964 ( REGULATION NO 82/64 OF 30 JUNE 1964 ( JOURNAL OFFICIEL 1964 , P . 1626 ) ON LEVYING THE CHARGES IN QUESTION IS CONTAINED IN ARTICLE 12 ( 2 ) OF REGULATION NO 14/64 OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( JOURNAL OFFICIEL 34 OF 27 FEBRUARY 1964 , P . 562 ) WHICH WAS REPLACED WITH EFFECT FROM 29 JULY 1968 BY ARTICLE 20 ( 2 ) OF REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OFFICIAL JOURNAL ENGLISH SPECIAL EDITION 1968 ( I ), P . 187 ). THERE HAS BEEN NO CONTENTION THAT ONE OF THE EXCEPTIONS TO THE PROHIBITION QUESTION , FOR WHICH PROVISION IS MADE IN ARTICLE 20 , APPLIED DURING THE PERIOD IN QUESTION IN RELATION TO THE IMPORTATION OF BEEF AND VEAL FROM NON-MEMBER COUNTRIES .

4 THE PURPOSE OF THE QUESTIONS REFERRED TO THE COURT IS IN SUBSTANCE TO FIND OUT WHETHER COMMUNITY LAW AND , INTER ALIA , THE RULES RELATING TO THE FREE MOVEMENT OF GOODS , THE PRINCIPLES RELATING TO THE PROPER FUNCTIONING OF COMPETITION IN THE COMMON MARKET AND FINALLY THE SYSTEM OF JUDICIAL PROTECTION OF THE RIGHTS CONTAINED IN PARTICULAR IN ARTICLES 171 , 177 AND 189 OF THE TREATY PERMIT OR REQUIRE OR POSSIBLY FORBID - AND IF SO UPON WHAT CONDITIONS - MEMBER STATES TO GRANT APPLICATIONS FOR REPAYMENT OF NATIONAL CHARGES OF THE KIND WHICH ARE THE SUBJECT-MATTER OF THE MAIN ACTION OR WHETHER , ON THE CONTRARY , THE MATTER IS GOVERNED BY THE RULES OF THE DOMESTIC LAW OF EACH MEMBER STATE .

5 THE STATEMENT OF THE REASONS ON WHICH THE ORDER MAKING THE REFERENCE IS BASED SHOWS THAT THE QUESTIONS REFERRED TO THE COURT HAVE BEEN SUBMITTED TO ELICIT A REPLY COVERING THE ASSUMPTION THAT THE CONTESTED CHARGES WERE PAID VOLUNTARILY WITHOUT RESERVATION FOR A LONG PERIOD BY THE TRADERS CONCERNED ON THE ASSUMPTION COMMON TO THEM AND TO THE NATIONAL AUTHORITIES THAT THEY WERE NOT OPEN TO CRITICISM FROM THE POINT OF VIEW OF THEIR COMPATIBILITY WITH COMMUNITY LAW . THE INCOMPATIBILITY BECAME APPARENT ONLY GRADUALLY AT A LATER DATE AS A RESULT OF THE INTERPRETATION GIVEN BY THE COURT OF JUSTICE TO THE CONCEPT OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES WHICH LED THE COURT FOR THE FIRST TIME TO CLASSIFY CHARGES FOR HEALTH INSPECTIONS IN THAT WAY IN ITS JUDGMENT OF 14 DECEMBER 1972 IN CASE 29/72 , MARIMEX V ITALIAN FINANCE ADMINISTRATION ( 1972 ) ECR 1309 .

6 ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , THE PROHIBITION ON THE LEVYING OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES , WHETHER IT HAS ITS ORIGIN IN THE GENERAL RULE CONTAINED IN ARTICLE 13 OF THE TREATY WITH EFFECT FROM 1 JANUARY 1970 , AT THE END OF THE TRANSITIONAL PERIOD , OR IN THE SPECIAL PROVISION OF ARTICLE 13 OF REGULATION NO 14/64 WITH EFFECT , AS REGARDS THE PRODUCTS REFERRED TO BY THE REGULATION , FROM 1 NOVEMBER 1964 , HAS A DIRECT EFFECT IN THE RELATIONS BETWEEN THE MEMBER STATES AND THEIR SUBJECTS THROUGHOUT THE COMMUNITY AS FROM THE DATE PROVIDED FOR THE IMPLEMENTATION OF THE PROVISIONS IN QUESTION . AS THE COURT STATED IN ITS JUDGMENT OF 9 MARCH 1978 IN CASE 106/77 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V SIMMENTHAL S.P.A . ( 1978 ) ECR 629 P . 643 , RULES OF COMMUNITY LAW MUST BE FULLY AND UNIFORMLY APPLIED IN ALL THE MEMBER STATES FROM THE DATE OF THEIR ENTRY INTO FORCE AND FOR SO LONG AS THEY CONTINUE IN FORCE .

7 THE INTERPRETATION WHICH , IN THE EXERCISE OF THE JURISDICTION CONFERRED UPON IT BY ARTICLE 177 , THE COURT OF JUSTICE GIVES TO A RULE OF COMMUNITY LAW CLARIFIES AND DEFINES WHERE NECESSARY THE MEANING AND SCOPE OF THAT RULE AS IT MUST BE OR OUGHT TO HAVE BEEN UNDERSTOOD AND APPLIED FROM THE TIME OF ITS COMING INTO FORCE . IT FOLLOWS THAT THE RULE AS THUS INTERPRETED MUST BE APPLIED BY THE COURTS EVEN TO LEGAL RELATIONSHIPS ARISING AND ESTABLISHED BEFORE THE JUDGMENT RULING ON THE REQUEST FOR INTERPRETATION , PROVIDED THAT IN OTHER RESPECTS THE CONDITIONS ENABLING AN ACTION RELATING TO THE APPLICATION OF THAT RULE TO BE BROUGHT BEFORE THE COURTS HAVING JURISDICTION ARE SATISFIED .

8 AS THE COURT RECOGNIZED IN ITS JUDGMENT OF 8 APRIL 1976 IN CASE 43/75 GABRIELLE DEFRENNE V SOCIETE ANONYME BELGE DE NAVIGATION AERIENNE SABENA ( 1976 ) ECR 455 , IT IS ONLY EXCEPTIONALLY THAT THE COURT MAY , IN APPLICATION OF THE GENERAL PRINCIPLE OF LEGAL CERTAINTY INHERENT IN THE COMMUNITY LEGAL ORDER AND IN TAKING ACCOUNT OF THE SERIOUS EFFECTS WHICH ITS JUDGMENT MIGHT HAVE , AS REGARDS THE PAST , ON LEGAL RELATIONSHIPS ESTABLISHED IN GOOD FAITH , BE MOVED TO RESTRICT FOR ANY PERSON CONCERNED THE OPPORTUNITY OF RELYING UPON THE PROVISION AS THUS INTERPRETED WITH A VIEW TO CALLING IN QUESTION THOSE LEGAL RELATIONSHIPS .

9 SUCH A RESTRICTION MAY , HOWEVER , BE ALLOWED ONLY IN THE ACTUAL JUDGMENT RULING UPON THE INTERPRETATION SOUGHT . THE FUNDAMENTAL NEED FOR A GENERAL AND UNIFORM APPLICATION OF COMMUNITY LAW IMPLIES THAT IT IS FOR THE COURT OF JUSTICE ALONE TO DECIDE UPON TEMPORAL RESTRICTIONS AS REGARDS THE EFFECTS OF THE INTERPRETATION WHICH IT GIVES .

10 IT IS NECESSARY , HOWEVER , TO OBSERVE THAT WHERE THE CONSEQUENCE OF A RULE OF COMMUNITY LAW IS TO PROHIBIT , ON THE DATES AND WITH THE EFFECTS DESCRIBED ABOVE , THE LEVYING OF NATIONAL CHARGES OR DUES , THE SAFEGUARD OF THE RIGHTS CONFERRED UPON SUBJECTS BY THE DIRECT EFFECT OF SUCH A PROHIBITION DOES NOT NECESSARILY REQUIRE A UNIFORM RULE COMMON TO THE MEMBER STATES RELATING TO THE FORMAL AND SUBSTANTIVE CONDITIONS TO WHICH THE CONTESTING OR RECOVERY OF THOSE VERY DIVERSE NATIONAL CHARGES IS SUBJECT .

11 A COMPARISON OF THE NATIONAL SYSTEMS SHOWS THAT THE PROBLEM OF DISPUTING CHARGES WHICH HAVE BEEN UNLAWFULLY CLAIMED OR THE REFUNDING OF CHARGES PAID BUT NOT OWED IS SETTLED IN DIFFERENT WAYS IN THE VARIOUS MEMBER STATES , AND EVEN WITHIN A SINGLE MEMBER STATE , ACCORDING TO THE VARIOUS KINDS OF TAXES OR CHARGES IN QUESTION . IN CERTAIN CASES , OBJECTIONS OR CLAIMS OF THIS TYPE ARE SUBJECT TO SPECIFIC PROCEDURAL CONDITIONS AND TIME-LIMITS UNDER THE LAW WITH REGARD BOTH TO COMPLAINTS SUBMITTED TO THE TAX AUTHORITIES AND TO LEGAL PROCEEDINGS .

12 IN OTHER CASES , CLAIMS FOR REPAYMENT OF CHARGES WHICH WERE PAID BUT NOT OWED MUST BE BROUGHT BEFORE THE ORDINARY COURTS , MAINLY IN THE FORM OF CLAIMS FOR THE RECOVERY OF OVER-PAYMENTS . SUCH ACTIONS ARE AVAILABLE FOR VARYING LENGTHS OF TIME , IN SOME CASES FOR THE LIMITATION PERIOD LAID DOWN UNDER THE GENERAL LAW , WITH THE RESULT THAT MEMBER STATES INVOLVED MAY BE FACED WITH AN ACCUMULATION OF CLAIMS FOR A CONSIDERABLE AMOUNT WHERE CERTAIN NATIONAL TAX PROVISIONS HAVE BEEN FOUND TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .

13 IT FOLLOWS FROM THE JUDGMENTS OF 16 DECEMBER 1976 IN THE REWE AND COMET CASES ( CASE 33/76 AND CASE 45/76 ( 1976 ) ECR 1989 AND 2043 RESPECTIVELY ) THAT , APPLYING THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE EEC TREATY , IT IS THE COURTS OF THE MEMBER STATES WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW . IN THE PRESENT STATE OF COMMUNITY LAW AND IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE CONTESTING OR THE RECOVERY OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY DEMANDED OR WRONGFULLY LEVIED , IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO SAFEGUARD THE RIGHTS WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS HAVE A DUTY TO PROTECT .

14 IT SHOULD BE SPECIFIED IN THIS CONNEXION THAT THE PROTECTION OF RIGHTS GUARANTEED IN THE MATTER BY THE COMMUNITY LEGAL ORDER DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY LEVIED TO BE GRANTED IN CONDITIONS SUCH AS WOULD INVOLVE AN UNJUSTIFIED ENRICHMENT OF THOSE ENTITLED .

15 THE SYSTEM OF PROTECTION WHICH SUBJECTS THUS HAVE AS A RESULT OF THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW IN CONJUNCTION WITH THE SPECIAL FEATURES OF NATIONAL LAWS WHICH GOVERN IN THE VARIOUS MEMBER STATES MATTERS OF FORM AND SUBSTANCE IN RELATION TO CHALLENGING NATIONAL TAXES OR RECOVERING THOSE WHICH HAVE BEEN PAID WITHOUT BEING OWED CANNOT BE REGARDED AS INCOMPATIBLE EITHER WITH ARTICLES 9 , 12 , 13 , 92 , 93 AND 95 OF THE EEC TREATY OR , IN A MORE GENERAL WAY , WITH THE PRINCIPLES OF COMMUNITY LAW RELATING TO THE FREE MOVEMENT OF GOODS , THE ESTABLISHMENT OF A SYSTEM ENSURING THAT COMPETITION WITHIN THE COMMON MARKET IS NOT DISTORTED OR THE PROHIBITION OF DISCRIMINATION IN TAX MATTERS . THE PROVISIONS REFERRED TO IN THE ORDER MAKING THE REFERENCE DO NOT PRECLUDE DIFFERENCES IN TREATMENT RESULTING FROM THE DIFFERENCES BETWEEN THE NATIONAL TAX LAWS ESPECIALLY IN RELATION TO CONTESTING NATIONAL TAXES .

16 THE ANSWER TO THE QUESTIONS REFERRED TO THE COURT BY THE CORTE SUPREMA DI CASSAZIONE MUST THEREFORE BE THAT :

( A ) IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE CONTESTING OR THE RECOVERY OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY DEMANDED OR WRONGFULLY LEVIED BY REASON OF THEIR INCOMPATIBILITY WITH COMMUNITY LAW , IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO SAFEGUARD THE RIGHTS WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS HAVE A DUTY TO PROTECT ;

( B)THERE IS THEREFORE NOTHING , FROM THE POINT OF VIEW OF COMMUNITY LAW , TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT IN ACCORDANCE WITH THEIR NATIONAL LAW OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO THE PURCHASERS .

17 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE ITALIAN CORTE SUPREMA DI CASSAZIONE BY AN ORDER OF 5 NOVEMBER 1979 , HEREBY RULES :

IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE CONTESTING OR THE RECOVERY OF NATIONAL CHARGES WHICH HAVE BEEN UNLAWFULLY DEMANDED OR WRONGFULLY LEVIED BY REASON OF THEIR INCOMPATIBILITY WITH COMMUNITY LAW , IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO SAFEGUARD THE RIGHTS WHICH SUBJECTS DERIVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE AND THAT UNDER NO CIRCUMSTANCES MAY THEY BE SO ADAPTED AS TO MAKE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS HAVE A DUTY TO PROTECT .

THERE IS NOTHING , FROM THE POINT OF VIEW OF COMMUNITY LAW , TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT IN ACCORDANCE WITH THEIR NATIONAL LAW OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO THE PURCHASERS .