Avis juridique important

Judgment of the Court of 22 October 1998. - Ministero delle Finanze v IN.CO.GE.'90 Srl, Idelgard Srl, Iris'90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl. - Reference for a preliminary ruling: Pretura circondariale di Roma - Italy. - Recovery of sums paid but not due - Treatment of a national charge incompatible with Community law. - Joined cases C-10/97 to C-22/97. European Court reports 1998 Page I-06307

Summary Parties Grounds Decision on costs Operative part

1 Preliminary rulings - Power of the Court - Limits - Problem of jurisdiction within the national judicial system - Resolution depending on the classification of a legal situation in the light of Community law - Purpose served by a preliminary ruling

(EC Treaty, Art. 177)

2 Community law - Primacy - Contrary national law - Rules automatically inapplicable, without being rendered non-existent

3 Community law - Direct effect - National charges incompatible with Community law - Repayment - Arrangements - Application of national law - Classification of the legal relationship between the tax authorities and taxable persons

1 It is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law. However, it is the Member States' responsibility to ensure that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of particular legal situations based on Community law may give rise in the national judicial system.

The Court does, however, have the power, in a reference for a preliminary ruling, to explain to the national court points of Community law which may help to solve the problem of jurisdiction with which that court is faced.

2 The incompatibility with Community law of a subsequently adopted rule of national law does not have the effect of rendering that rule of national law non-existent. Faced with such a situation, a national court is obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law.

3 The obligation on a national court to disapply national legislation introducing a charge contrary to Community law must lead that court, in principle, to uphold claims for repayment of that charge. Such repayment must be ensured in accordance with the provisions of its national law, on condition that those provisions are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. Any reclassification of the legal relationship established between the tax authorities of a Member State and certain companies in that State when a domestic charge subsequently found to be contrary to Community law was levied is therefore a matter for national law.

In Joined Cases C-10/97 to C-22/97,

REFERENCES to the Court under Article 177 of the EC Treaty by the Pretura Circondariale di Roma (Italy) for a preliminary ruling in the proceedings pending before that court between

Ministero delle Finanze

and

IN.CO.GE.'90 Srl (C-10/97),

Idelgard Srl (C-11/97),

Iris'90 Srl (C-12/97),

Camed Srl (C-13/97),

Pomezia Progetti Appalti Srl (PPA) (C-14/97),

Edilcam Srl (C-15/97),

A. Cecchini & C. Srl (C-16/97),

EMO Srl (C-17/97),

Emoda Srl (C-18/97),

Sappesi Srl (C-19/97),

Ing. Luigi Martini Srl (C-20/97),

Giacomo Srl (C-21/97),

Mafar Srl (C-22/97),

on the consequences arising under national law from the incompatibility of a domestic charge with Community law,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet (Rapporteur), G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet, R. Schintgen and K.M. Ioannou, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- the Italian Government, by Professor Umberto Leanza, Head of the Legal Service in the Ministry of Foreign Affairs, acting as Agent, assisted by Francesca Quadri, Avvocato dello Stato,

- the French Government, by Kareen Rispal-Bellanger, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Gautier Mignot, Foreign Affairs Secretary in that directorate, acting as Agents,

- the United Kingdom Government, by Lindsey Nicoll, of the Treasury Solicitor's Department, acting as Agent, and Rhodri Thompson, Barrister, and subsequently by Stephanie Ridley, of the Treasury Solicitor's Department, acting as Agent, and Rhodri Thompson,

- the Commission of the European Communities, by Enrico Traversa, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of IN.CO.GE.'90 Srl, Idelgard Srl, Iris'90 Srl and Sappesi Srl, represented by Gianni Manca, of the Rome Bar; the Italian Government, represented by Ivo M. Braguglia, Avvocato dello Stato; the French Government, represented by Gautier Mignot; the United Kingdom Government, represented by Rhodri Thompson, Barrister; and the Commission, represented by Enrico Traversa, at the hearing on 19 March 1998,

after hearing the Opinion of the Advocate General at the sitting on 14 May 1998,

gives the following

Judgment

1 By 13 orders of 17 December 1996, received at the Court on 16 January 1997, the Pretura Circondariale di Roma (District Magistrate's Court, Rome) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question concerning the consequences arising under national law from the incompatibility of a domestic charge with Community law.

2 That question was raised in a series of disputes between the Ministry of Finance, on the one hand, and IN.CO.GE.'90 and 12 other limited-liability companies (`IN.CO.GE.'90 et al.'), on the other, relating to the detailed rules governing repayment of the tassa di concessione governativa (administrative charge) for entering companies on the register of companies (hereinafter `the registration charge').

3 The registration charge was introduced by Decree No 641 of the President of the Republic of 26 October 1972 (GURI No 292 of 11 November 1972, Supplement No 3, hereinafter `Decree No 641/72'). In so far as it applies to the registration of documents recording the incorporation of companies, it has been the subject of successive amendments regarding its amount and periodicity.

4 The amount of the registration charge was first substantially increased by Decree-Law No 853 of 19 December 1984 (GURI No 347 of 19 December 1984), converted into law by Law No 17 of 17 February 1985 (GURI No 41bis of 17 February 1985), which also provided that from then on the charge would be payable not only upon registration of the instrument of incorporation but also on 30 June of each calendar year thereafter. The amount of the charge was then further altered in 1988 and 1989. In 1989 the amount came to LIT 12 million for public limited companies and partnerships limited by shares, LIT 3.5 million for private limited companies and LIT 500 000 for other companies.

5 In its judgment in Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni v Amministrazione delle Finanze dello Stato [1993] ECR I-1915, dealing with the registration charge, the Court held that Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) was to be interpreted as prohibiting, subject to the derogating provisions of Article 12, an annual charge due in respect of the registration of capital companies even though the product of that charge contributed to financing the department responsible for keeping the register of companies. The Court also held that Article 12 of Directive 69/335 was to be interpreted as meaning that duties paid by way of fees or dues referred to in Article 12(1)(e) might constitute payment collected by way of consideration for transactions required by law in the public interest such as, for example, the registration of capital companies. The amount of such duties, which might vary according to the legal form taken by the company, was to be calculated according to the cost of the transaction, which might be assessed on a flat-rate basis.

6 Following that judgment, the registration charge was reduced to LIT 500 000 for all companies by Decree-Law No 331 of 30 August 1993 (GURI No 203 of 30 August 1993), converted into law by Law No 427 of 29 October 1993 (GURI No 255 of 29 October 1993), and it ceased to be payable annually.

7 Pursuant to Article 633 et seq. of the Italian Code of Civil Procedure, IN.CO.GE.'90 et al. successfully applied to the Pretura di Roma for orders enjoining the Ministry of Finance to repay to them the sums which they had paid by way of the registration charge over previous years.

8 The Ministry of Finance, however, challenged those injunctions by raising two objections alleging, first, that the Pretura di Roma lacked jurisdiction to hear disputes involving tax matters and, second, that the applicants' entitlement to repayment, which, it claimed, was limited to the amounts paid during the three-year period preceding lodgment of their claims, was barred by lapse of time in accordance with Article 13 of Decree No 641/72.

9 It appears from the order for reference that those objections must stand or fall together, in so far as they both hinge on the question whether the dispute is of a fiscal or civil nature. If the dispute is of a fiscal nature, the Pretura will lack jurisdiction to hear it and it will not therefore be open to it to consider the plea of time-bar. On the other hand, if the dispute is not of a fiscal nature but comes under the civil-law rules for recovery of amounts paid but not due, the national court will have to resolve the dispute and the three-year time-limit laid down in Article 13 of Decree No 641/72 will not be applicable.

10 The Pretura di Roma adds, in that connection, that in Judgment No 3458 of 23 February 1996, the Combined Chambers of the Corte Suprema di Cassazione (Supreme Court of Cassation) ruled that repayment of the registration charge falls within the scope of Article 13 of Decree No 641/72 since that provision applies to all charges paid but not due, irrespective of the reason for the undue payment.

11 The national court, however, does not share that view. It points out that, in accordance with the case-law of the Court, a national court is under a duty not to apply any provision of national law, even if adopted subsequently, which is contrary to Community law, without being obliged to request or await the repeal of that provision by legislative or any other constitutional means (Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617). In the present cases, the non-application in its entirety of the Italian law which introduced the registration charge necessarily has the effect of divesting of its fiscal nature the legal relationship established between the Ministry of Finance and the applicant companies when the contested amounts were paid. Since those amounts were levied by way of a charge which is non-existent, and thus in the absence of any fiscal debt owed to the State, their repayment falls within the general rules for recovery of amounts paid but not due, which is subject to a ten-year limitation period under the Civil Code.

12 It was in those circumstances that the Pretura di Roma stayed proceedings and referred the following question to the Court for a preliminary ruling:

Does the incompatibility with Article 10 of Council Directive 69/335/EEC of 17 July 1969, as interpreted by the Court of Justice in its judgment of 20 April 1993 (in Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni v Amministrazione delle Finanze dello Stato [1993] ECR I-1915), of Article 3(XVIII) and (XIX) of Decree-Law No 853 of 19 December 1984, converted into Law No 17 of 17 February 1985, mean, on the basis of the criteria for integration of national law and Community law which that Court has laid down, that the said paragraphs (XVIII) and (XIX) of Article 3 must be set aside in their entirety, and in particular does it mean that the national court must not take account of those internal provisions, even when classifying the legal relationship on the basis of which a national of a Member State calls on the finance administration to refund sums that were paid in contravention of the said Article 10 of Directive 69/335?

Jurisdiction

13 The United Kingdom Government submits that the Court lacks jurisdiction to reply to the question submitted by the Pretura di Roma in so far as that question concerns the interpretation of Italian law and not of Community law. It points out that it is for each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the Community legal order (Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989 and Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043).

16 It appears in this regard from the order for reference that the Pretura di Roma is uncertain as to the consequences arising under national law from the incompatibility of a domestic charge with Community law. The Pretura bases its opinion that the disputes pending before it are not of a fiscal nature but fall, under Italian law, within the general rules for recovery of amounts paid but not due on the fact that such incompatibility, inasmuch as its effect is to disapply the relevant national provisions in their entirety and deprive the charge in question of any existence in law, necessarily has the effect of divesting it of its fiscal nature.

17 It follows that the Court does have jurisdiction to reply to the question submitted.

The question submitted

22 It remains to be considered whether non-application, as the result of a judgment given by the Court, of national legislation which introduced a levy contrary to Community law has the result of depriving that levy retroactively of its character as a charge and thereby divesting of its fiscal nature the legal relationship established when that charge was levied between the national tax authority and the companies liable to pay it.

28 The possibility thus recognised by the Court of applying those special detailed rules to the repayment of charges and other levies found to be contrary to Community law would be deprived of any effect if, as the Commission argues, the incompatibility between a domestic levy and Community law necessarily had the effect of depriving that levy of its character as a charge and divesting of its fiscal nature the legal relationship established, when the charge in question was levied, between the national tax authorities and the parties liable to pay it.

Costs

30 The costs incurred by the Italian, French and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Pretura Circondariale di Roma by orders of 17 December 1996, hereby rules:

The obligation on a national court to disapply national legislation introducing a charge contrary to Community law must lead that court, in principle, to uphold claims for repayment of that charge. Such repayment must be ensured in accordance with the provisions of its national law, on condition that those provisions are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. Any reclassification of the legal relationship established between the tax authorities of a Member State and certain companies in that State when a domestic charge subsequently found to be contrary to Community law was levied is therefore a matter for national law.