Keywords
Summary

Keywords

Community law - Direct effect - National charges incompatible with Community law - Repayment - Refusal - Conditions - Entire charge passed on leading to unjust enrichment of the trader - Existence of a legal obligation for the trader to pass on the charge to purchasers - Effect - No presumption that the entire charge has been passed on - Consideration of damage caused by the charge even though it has been passed on

Summary

A Member State may object to repayment to the trader of a national charge levied in breach of Community law only where it is established that the charge has been borne in its entirety by someone other than the trader and that reimbursement to the trader would amount to his unjust enrichment. It is for the national courts to determine, in the light of the facts in each case, whether those conditions have been satisfied. If the charge has been passed on only in part, it is for the national authorities to reimburse to the trader the sum not passed on. The fact that a legal obligation exists to incorporate the charge in the cost price does not mean that it can be assumed that the entire charge has been passed on, even when failure to comply with that obligation would involve a penalty.

Where, although the charge has been passed on to purchasers, the rules of domestic law permit traders to allege that they have been caused damage by the illegal levying of the charge, to the total or partial exclusion of any unjust enrichment, it is for the national court to draw the appropriate inferences. Such damage could be caused by, inter alia, the fact that the unlawful charge by increasing the price of the imported goods has reduced sales and thus profits.