«(Indirect taxation – Duty on sales of alcoholic beverages – Incompatibility with Community law – Recovery of duty)»

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

JUDGMENT OF THE COURT (Fifth Chamber) 2 October 2003 (1)

((Indirect taxation – Duty on sales of alcoholic beverages – Incompatibility with Community law – Recovery of duty))

In Case C-147/01,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 5 of the EC Treaty (now Article 10 EC) and paragraph 3 of the operative part of the judgment of the Court in Case C-437/97

THE COURT (Fifth Chamber),,

composed of: M. Wathelet (Rapporteur), President of the Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Rathgeber, represented by W. Ilgenfritz, Prozeßbevollmächtigter, of Mr Schlosser, represented by T. Jordis and G. Stefan, Rechtsanwalt, of Beta-Leasing GmbH, represented by W. Arnold, of the Abgabenberufungskommission Wien, represented by L. Pramer, Rechtsanwalt, of the Austrian Government, represented by H. Dossi, and of the Commission, represented by E. Traversa and V. Kreuschitz, at the hearing on 12 December 2002,

after hearing the Opinion of the Advocate General at the sitting on 20 March 2003,

gives the following

Community legislation

National legislation

The circumstances prevailing at the time of the adoption of the amending act

The main proceedings

Observations submitted to the Court

Response of the Court

Article 10 EC

The relationship between the passing-on of the duty on alcoholic beverages and unjust enrichment

The principles of equivalence and effectiveness

─ Principle of equivalence

─ Principle of effectiveness

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Verwaltungsgerichtshof by order of 23 March 2001, hereby rules:

Wathelet

Timmermans

La Pergola

Jann

von Bahr

Delivered in open court in Luxembourg on 2 October 2003.

R. Grass

M. Wathelet

Registrar

President of the Fifth Chamber