Keywords
Summary

Keywords

1 . QUESTIONS SUBMITTED FOR A PRELIMINARY RULING - REFERENCE TO THE COURT - RIGHT OF EVERY NATIONAL COURT - STAGE OF THE PROCEEDINGS BEFORE THE NATIONAL COURT - NATURE OF THE DECISION TO BE GIVEN BY THE NATIONAL COURT - IRRELEVANT

( EEC TREATY , ART . 177 , SECOND PARA .)

2 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL CHARGES INCOMPATIBLE WITH COMMUNITY LAW - REPAYMENT - PROCEDURES - APPLICATION OF NATIONAL LAW - LIMITS

3 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL CHARGES INCOMPATIBLE WITH COMMUNITY LAW - REPAYMENT - PROCEDURES - APPLICATION OF NATIONAL LAW - CONDITIONS - CONSIDERATION OF POSSIBLE PASSING ON OF THE CHARGE - PERMISSIBILITY

4 . COMMUNITY LAW - DIRECT EFFECT - NATIONAL CHARGES INCOMPATIBLE WITH COMMUNITY LAW - REPAYMENT - PROCEDURES - APPLICATION OF NATIONAL LAW - CONDITIONS - REQUIREMENT OF PROOF THAT THE TAXPAYER HAS NOT PASSED THE CHARGES ON - UNACCEPTABILITY - CRITERIA

Summary

1 . EVERY COURT OR TRIBUNAL OF A MEMBER STATE IS ENTITLED TO ASK THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY , REGARDLESS OF THE STAGE REACHED IN THE PROCEEDINGS PENDING BEFORE IT AND REGARDLESS OF THE NATURE OF THE DECISION WHICH IT IS CALLED UPON TO GIVE .

2.ENTITLEMENT TO THE REPAYMENT OF CHARGES LEVIED BY A MEMBER STATE CONTRARY TO THE RULES OF COMMUNITY LAW IS A CONSEQUENCE OF , AND AN ADJUNCT TO , THE RIGHTS CONFERRED ON INDIVIDUALS BY THE COMMUNITY PROVISIONS PROHIBITING CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES OR , AS THE CASE MAY BE , THE DISCRIMINATORY APPLICATION OF INTERNAL TAXES . WHILST IT IS TRUE THAT REPAYMENT MAY BE SOUGHT ONLY WITHIN THE FRAMEWORK OF THE CONDITIONS AS TO BOTH SUBSTANCE AND FORM , LAID DOWN BY THE VARIOUS NATIONAL LAWS APPLICABLE THERETO , THE FACT NEVERTHELESS REMAINS THAT THOSE CONDITIONS MAY NOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR CLAIMS REGARDING NATIONAL CHARGES AND THEY MAY NOT BE SO FRAMED AS TO RENDER VIRTUALLY IMPOSSIBLE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW .

3.COMMUNITY LAW DOES NOT PREVENT A NATIONAL LEGAL SYSTEM FROM DISALLOWING THE REPAYMENT OF CHARGES WHICH HAVE BEEN UNDULY LEVIED WHERE TO DO SO WOULD ENTAIL UNJUST ENRICHMENT OF THE RECIPIENTS . THERE IS NOTHING IN COMMUNITY LAW THEREFORE TO PREVENT COURTS FROM TAKING ACCOUNT , UNDER THEIR NATIONAL LAW , OF THE FACT THAT THE UNDULY LEVIED CHARGES HAVE BEEN INCORPORATED IN THE PRICE OF THE GOODS AND THUS PASSED ON TO THE PURCHASERS . THUS NATIONAL LEGISLATIVE PROVISIONS WHICH PREVENT THE REIMBURSEMENT OF TAXES , CHARGES AND DUTIES LEVIED IN BREACH OF COMMUNITY LAW CANNOT , IN PRINCIPLE , BE REGARDED AS CONTRARY TO COMMUNITY LAW WHERE IT IS ESTABLISHED THAT THE PERSON REQUIRED TO PAY SUCH CHARGES HAS ACTUALLY PASSED THEM ON TO OTHER PERSONS .

4.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 , EVEN IF REPAYMENT OF A SUBSTANTIAL NUMBER OF , OR EVEN ALL , THE NATIONAL TAXES , CHARGES AND DUTIES LEVIED IN BREACH OF COMMUNITY LAW IS SUBJECT TO THE SAME RESTRICTIVE CONDITIONS .

THAT IS SO PARTICULARLY IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE UPON 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 . ONCE IT IS ESTABLISHED THAT THE LEVYING OF THE CHARGE IS INCOMPATIBLE WITH COMMUNITY LAW , THE NATIONAL COURT MUST BE FREE TO DECIDE WHETHER OR NOT THE BURDEN OF THE CHARGE HAS BEEN PASSED ON , WHOLLY OR IN PART , TO OTHER PERSONS .