Keywords
Summary

Keywords

1. Member States — Obligations — Failure to fulfil obligations — Liability — Extent — Constitutionally independent institutions — (Art. 226 EC)

2. Actions for failure to fulfil obligations — Examination of the merits by the Court — Assessment of the scope of the provisions impugned — Taking into account of the interpretation by the courts of the Member State in question — Criteria — (Art. 226 EC)

3. Community law — Direct effect — National charges incompatible with Community law — Repayment — Arrangements — Application of national law — Maintenance by a Member State of legislation whose construction by case-law and administrative practice makes exercise of the right to repayment excessively difficult — Failure to fulfil obligations

Summary

1. A Member State's failure to fulfil obligations may, in principle, be established under Article 226 EC whatever the agency of that State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.

see para. 29

2. For the purposes of an action, under Article 226 EC, for a declaration of a Member State's failure to fulfil obligations, the scope of national laws, regulations or administrative provisions of that Member State must be assessed in the light of the interpretation given to them by national courts.

In that regard, isolated or numerically insignificant judicial decisions in the context of case-law taking a different direction, or still more a construction disowned by the national supreme court, cannot be taken into account. That is not true of a widely-held judicial construction which has not been disowned by the supreme court, but rather confirmed by it.

Where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with Community law, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with Community law.

see paras 30, 32-33

3. A Member State fails to fulfil its Treaty obligations if it maintains in force legislation relating to the repayment of indirect charges levied in breach of Community rules, which excludes such repayment if the charges have been passed on to third parties and which is construed and applied by the administrative authorities and a substantial proportion of the courts, including the national supreme court, in such a way that the exercise of the right to repayment is made excessively difficult for the taxpayer, because

─ the reasoning deployed by the case-law in question is based on a premiss which is a mere presumption, namely that indirect taxes are in principle passed on by subsequent sales by economic operators where they have the chance;

─ the failure to produce the accounting documents of the undertaking seeking the repayment is, by itself, sufficient for it to be presumed that those charges have been passed on to third parties;

─ the authorities consider that the passing on of a charge is established if the amount thereof has not been accounted for, from the year of its payment, as a payment to the public purse for undue tax, and credited as an asset in the balance-sheet of the undertaking.

see paras 35, 37-39, 41, operative part