Keywords
Summary

Keywords

1. Community law — Direct effect — National charges incompatible with Community law — Repayment — Introduction of a more restrictive procedural rule in anticipation of the potential effects of a judgment of the Court — Not permissible — Criterion — Measure specific to the duty which is the subject of the Court's judgment — To be assessed by the national court — (EC Treaty, Art. 5 (now Art. 10 EC))

2. Community law — Direct effect — National charges incompatible with Community law — Repayment — Refusal on the sole ground that the charge was passed on and independently of the degree of unjust enrichment — Not permissible

3. Community law — Direct effect — National charges incompatible with Community law — Repayment — Procedure — Application of national law — Limits — Compliance with the principle of equivalence of Community law — National provision derogating from the rule of non-repayment where the charge was passed on for applicants able to rely on a precedent from a national constitutional court — Breach of the principle of equivalence — To be determined by the national court

4. Community law — Direct effect — National charges incompatible with Community law — Repayment — Procedure — Application of national law — Limits — Compliance with the principle of the effectiveness of Community law — Presumption of unjust enrichment solely because the charge was passed on — Not permissible

Summary

1. The adoption by a Member State of rules fixing more restrictive procedural rules on recovery of sums levied but not due, in order to forestall the possible effects of a judgment of the Court holding that Community law precludes the maintenance of a national duty, is contrary to Community law and, more particularly, to Article 5 of the Treaty (now Article 10 EC) only in so far as it is aimed specifically at that duty, a point which falls to be determined by the national court.

see para. 118, operative part 1

2. The rules of Community law on the recovery of sums levied but not due are to be interpreted as meaning that they preclude national rules which refuse ─ a point which falls to be determined by the national court ─ repayment of a charge incompatible with Community law on the sole ground that the charge was passed on to third parties, without requiring that the degree of unjust enrichment that repayment of the charge would entail for the taxable person be established.

see para. 118, operative part 2

3. The principle of equivalence precludes national rules which lay down less favourable procedural rules for claims for repayment of a charge which has been levied though not due from the aspect of Community law than those applicable to similar actions based on certain provisions of domestic law.

As regards a national provision derogating from the rule that repayment of a charge which was passed on is refused, where the claimants are able to rely on a precedent in the form of a judgment of a national constitutional court, it is for the national court to ascertain, on the basis of a comprehensive assessment of national law, whether it is actually the case, first, that only claimants who bring proceedings based on domestic constitutional law may rely on that derogation and, second, that the rules governing repayment of charges held to be incompatible with domestic constitutional law are more favourable than those applicable to actions relating to taxes held to be contrary to Community law.

see para. 118, operative part 3

4. As regards claims for repayment of a charge levied though not due from the aspect of Community law, the principle of effectiveness precludes national legislation or a national administrative practice which makes the exercise of the rights conferred by the Community legal order impossible in practice or excessively difficult by establishing a presumption of unjust enrichment on the sole ground that the duty was passed on to third parties.

see paras 103, 118, operative part 4