Case C‑316/22
Gabel Industria Tessile SpA
and
Canavesi SpA
v
A2A Energia SpA
and
Energit SpA
and
Agenzia delle Dogane e dei Monopoli
(Request for a preliminary ruling
from the Tribunale di Como (District Court, Como, Italy))
Judgment of the Court (Fifth Chamber) of 11 April 2024
(Reference for a preliminary ruling – Directive 2008/118/EC – Article 1(2) – Excise duties – Electricity – National legislation creating an additional tax on electricity excise duties – Lack of specific purposes – Additional tax deemed contrary to Directive 2008/118/EC by the national courts – Recovery by the final consumer of the tax unduly paid from the supplier alone – Article 288 TFEU – Direct effect – Principle of effectiveness)
Acts of the institutions – Directives – Direct effect – Limits – Obligation on the national court, in a dispute between private parties, to disapply a provision of national law establishing an indirect tax contrary to a directive – None – Limits
(Art. 288, third para., TFEU)
(see paragraphs 23-27, operative part 1)
Union law – Direct effect – National taxes incompatible with EU law – Reimbursement – Procedures – Application of national law – Limits – Compliance with the principle of effectiveness – Passing on to the final consumer of a tax unduly paid by a supplier – Legally impossible to request reimbursement from the supplier due to the lack of horizontal direct effect of the directive establishing that tax – Legislation allowing a final consumer not to seek reimbursement directly from the Member State concerned, but only to bring a civil action for recovery of sums paid but not due against the supplier – Unlawful
(see paragraphs 32-34, 36-38, operative part 2)
Résumé
In proceedings concerning the reimbursement to final consumers of sums unduly paid in respect of an additional excise duty contrary to EU law, the Court recalls its case-law interpreting the third paragraph of Article 288 TFEU and the principle of effectiveness.
Gabel Industria Tessile and Canavesi are two companies governed by Italian law which have signed contracts with A2A Energia and Energit, respectively, for the supply of electricity to their production sites.
Under those contracts, in 2010 and 2011, Gabel Industria Tessile and Canavesi paid an additional tax on electricity excise duties provided for at that time by the Italian legislation.
In 2020, considering that that additional tax was contrary to EU law, they brought proceedings against their suppliers before the Tribunale di Como (District Court, Como, Italy), the referring court in this case, seeking reimbursement thereof.
The referring court, while pointing out that the tax had been found to be contrary to Directive 2008/118 ( 1 ) by the Corte suprema di cassazione (Supreme Court of Cassation, Italy), questions the consequences of that unlawfulness for the treatment of sums unduly paid, given the absence of horizontal effect of a directive, as well as with regard to the application of the principle of effectiveness.
In that context, it referred two questions to the Court for a preliminary ruling, and asks, first, whether the third paragraph of Article 288 TFEU must be interpreted as precluding the disapplication by a national court, in a dispute between private parties, of a provision of national law establishing a tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed.
Secondly, the referring court asks, in essence, whether the principle of effectiveness must be interpreted as precluding national legislation that does not allow a final consumer to seek directly from the State reimbursement of a tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed, paid to his or her supplier, whereas it is impossible, due to the absence of horizontal direct effect of a directive, for the final consumer to rely on the fact that the tax is contrary to EU law against that supplier, which has itself repaid the tax, and therefore to obtain reimbursement of the sums unduly paid to the latter.
Findings of the Court
As regards the first question, the Court points out first of all that, under the third paragraph of Article 288 TFEU, a directive may not be relied on as such against a private party before a national court.
In principle, such a court cannot disapply, in a dispute between private parties, a provision of national law establishing an indirect tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed.
However, there are two exceptions to that principle.
First, national law may provide otherwise as regards such disapplication. A Member State may confer on the national courts the power to disapply, on the basis of its domestic law, any provision of national law which is contrary to a provision of EU law that does not have direct effect. Thus, notwithstanding the absence of horizontal effect of a directive, a national court may allow a private party to rely on the unlawfulness of a tax which has been wrongly passed on to it by a supplier, if such a possibility is provided for by national legislation.
Secondly, according to the case-law of the Court, provisions of a directive that are unconditional and sufficiently precise may be relied upon by private parties against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between private parties. A private party may therefore rely on the fact that an indirect tax is contrary to EU law, as against an entity that meets those characteristics, which is for the referring court to determine.
As regards the second question, the Court considers that national legislation that does not allow a final consumer to seek directly from the Member State concerned reimbursement of a tax contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed infringes the principle of effectiveness.
In accordance with the principle of effectiveness, where the supplier required to pay unlawful taxes has passed them on directly to a final consumer, who has ultimately unduly borne that additional economic burden, the latter must have the possibility of obtaining reimbursement from the supplier and, if such reimbursement were to prove impossible or excessively difficult to obtain, he or she should be able to direct his or her application for reimbursement to the Member State concerned directly.
In the present case, as the final consumer is prevented from relying on the incompatibility of the tax with the provisions of Directive 2008/118 in the context of an action for reimbursement brought against its supplier, due to the absence of direct horizontal effect of that directive, reimbursement of that tax from that supplier is in actual fact legally impossible. However, the national legislation allows final consumers to bring an action for recovery of sums paid but not due only against the supplier, without the possibility of applying directly to the Member State concerned, which therefore infringes the principle of effectiveness.
( 1 ) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).