«(Failure of a Member State to fulfil obligations – Construction contrary to Community law of national legislation by case-law and administrative practice – Conditions for the recovery of sums paid though not due)»

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

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

JUDGMENT OF THE COURT (Full Court) 9 December 2003 (1)

((Failure of a Member State to fulfil obligations – Construction contrary to Community law of national legislation by case-law and administrative practice – Conditions for the recovery of sums paid though not due))

In Case C-129/00,

applicant,

v

defendant,

APPLICATION for a declaration that, by maintaining in force Article 29(2) of Law No 428 of 29 December 1990 entitled Disposizioni per l'adempimento di obblighi derivanti dall'appartenenza dell'Italia alle Comunità europee (legge comunitaria per il 1990) (Provisions for the fulfilment of obligations deriving from Italy's membership of the European Communities (Community law for 1990)) (GURI, Ordinary Supplement No 10 of 12 January 1991, p. 5) which, as construed and applied by the administrative authorities and the courts, allows rules of evidence in relation to the passing on to third parties of the amount of charges levied in breach of Community rules which make exercise of the right to repayment of such charges virtually impossible or, at least, excessively difficult for the taxpayer, the Italian Republic has failed to fulfil its obligations under the EC Treaty,

THE COURT (Full Court),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, (Presidents of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: L.A. Geelhoed,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 2 April 2003,

after hearing the Opinion of the Advocate General at the sitting on 3 June 2003,

gives the following

...

On those grounds,

THE COURT (Full Court)

hereby:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Rosas

Edward

La Pergola

Puissochet

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 9 December 2003.

R. Grass

V. Skouris

Registrar

President