Keywords
Summary

Keywords

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1 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL TAXES INCOMPATIBLE WITH COMMUNITY LAW - REPAYMENT - PROCEDURES - APPLICATION OF NATIONAL LAW - CONSIDERATION OF ANY PASSING ON OF THE TAX - PERMISSIBILITY - UNLAWFULNESS OF CERTAIN REQUIREMENTS OF PROOF UNDER WHICH THE TAXPAYER HAS TO PROVE THAT HE HAS NOT PASSED THE TAX ON

2 . MEMBER STATES - OBLIGATIONS - FAILURE TO FULFIL - MAINTENANCE OF A NATIONAL PROVISION INCOMPATIBLE WITH COMMUNITY LAW

Summary

1 . IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE REFUNDING OF NATIONAL CHARGES WHICH HAVE BEEN LEVIED IN BREACH OF COMMUNITY LAW, IT IS FOR THE MEMBER STATES TO ENSURE THE REPAYMENT OF SUCH CHARGES IN ACCORDANCE WITH THE PROVISIONS OF THEIR INTERNAL LAW . FURTHERMORE, COMMUNITY LAW DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY MADE TO BE GRANTED IN CONDITIONS WHICH WOULD INVOLVE AN UNJUST ENRICHMENT OF THOSE ENTITLED . THUS IT DOES NOT PREVENT THE FACT THAT THE BURDEN OF SUCH CHARGES MAY HAVE BEEN PASSED ON TO THE TRADERS OR TO CONSUMERS FROM BEING TAKEN INTO CONSIDERATION .

HOWEVER, ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW IS INCOMPATIBLE WITH COMMUNITY LAW . THIS IS PARTICULARLY SO IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE ON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE CHARGES UNDULY PAID HAVE NOT BEEN PASSED ON TO OTHER PERSONS OR OF SPECIAL LIMITATIONS CONCERNING THE FORM OF THE EVIDENCE TO BE ADDUCED, SUCH AS THE EXCLUSION OF ANY KIND OF EVIDENCE OTHER THAN DOCUMENTARY EVIDENCE .

2 . THE PRIMACY AND DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW - AS RECOGNIZED BY THE COURTS OF A MEMBER STATE - DO NOT RELEASE THE MEMBER STATE IN QUESTION FROM ITS OBLIGATION TO REMOVE FROM ITS DOMESTIC LEGAL ORDER ANY PROVISIONS INCOMPATIBLE WITH COMMUNITY LAW, SINCE THE MAINTENANCE OF SUCH PROVISIONS GIVES RISE TO AN AMBIGUOUS STATE OF AFFAIRS IN SO FAR AS IT LEAVES PERSONS CONCERNED IN A STATE OF UNCERTAINTY AS TO THE POSSIBILITIES AVAILABLE TO THEM OF RELYING ON COMMUNITY LAW .