OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 16 November 2023(1)
Case C‑316/22
Gabel Industria Tessile SpA,
Canavesi SpA
v
A2A Energia SpA,
Energit SpA,
Agenzia delle Dogane e dei Monopoli,
joined parties:
Agenzia delle Dogane e dei Monopoli
(Request for a preliminary ruling from the Tribunale di Como (District Court, Como, Italy))
(Reference for a preliminary ruling – Article 288 TFEU – Direct effect of directives – Horizontal direct effect – Vertical direct effect – Foster test – Entities which are considered an emanation of the State – Directive 2008/118/EC – Electricity provider – Repayment of taxes paid in breach of EU law – Procedural autonomy – Principle of effectiveness)
I. Introduction
1. Few topics have fascinated generations of EU lawyers as much as the direct effect of directives. The topic has been the subject of lengthy discussions (and, to some extent, great controversy), both within the EU institutions and in academic fora, from the 1960s (2) to present day. (3)
2. A number of learned Advocates General have, in the past, advised the Court to recognise not only the vertical, but also the horizontal direct effect of directives that have not been transposed, (4) thereby ‘curing’ (at least in part) the EU legal order of what has famously been described as an ‘infant disease’ of EU law. (5) Nevertheless, the Court’s case-law has remained quite stable on this point. Since the judgments in Marshall and Faccini Dori, the Court has consistently stated that a directive cannot, of itself, impose obligations on an individual and cannot therefore be relied upon as such against an individual. (6)
3. At the same time, however, the Court has tried to temper the adverse effects that the absence of horizontal direct effect of directives may have on individuals, in several ways. In particular, the Court has: (i) introduced a far-reaching obligation for national courts and other national authorities alike, to interpret national law as far as possible in conformity with the provisions of unimplemented directives; (7) (ii) given a broad interpretation to the concept of ‘Member State’ and its emanations in this area, so as to cover a variety of organisations and bodies which must thus be considered; (8) (iii) accepted direct effect in certain peculiar triangular situations which involved two private parties and one public party; (9) (iv) accepted direct effect of certain provisions of the Charter of Fundamental Rights of the European Union and of certain general principles of law, of which the provisions of a directive may be a manifestation; (10) and; (v) lowered the bar for a successful action for liability against Member States having failed to transpose directives. (11)
4. The present case offers the Court an opportunity to generally reflect on the state of the law in this area, and to shed further light on certain aspects of its case-law.
II. Legal framework
A. EU law
5. Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, (12) which was applicable at the material time, (13) provided:
‘Member States may levy [indirect taxes other than excise duty] on excise goods for specific purposes, provided that those taxes comply with the [Union] tax rules applicable to excise duty or value added tax as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.’
B. National law
6. Article 5 of Decreto Legislativo 2 febbraio 2007, n. 26, Attuazione della direttiva 2003/96/CE che ristruttura il quadro comunitario per la tassazione dei prodotti energetici e dell’elettricità (Law Decree No 26/2007 of 2 February 2007, Implementation of Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity), (14) amended Article 6 of Decreto Legge 28 novembre 1988, n. 511, Disposizioni urgenti in materia di finanza regionale e locale (Decree-Law No 511/1988 of 28 November 1988, Urgent provisions on regional and local finance), (15) introducing an additional provincial tax on electricity excise duties (‘the additional tax’).
7. Article 2 of Decreto Legislativo 14 marzo 2011, n. 23, Disposizioni in materia di federalismo fiscale municipale (Decree-Law No 23/2011 of 14 March 2011, Provisions on Municipal Fiscal Federalism) (16) provided that as of 2012, the additional tax ceased to be applied in the ordinary-statute regions. Subsequently, Article 4 of Decreto Legge 2 marzo 2012, n. 16, Disposizioni urgenti in materia di semplificazioni tributarie, di efficientamento e potenziamento delle procedure di accertamento (Decree-Law No 16/2012 of 2 March 2012, Urgent provisions on tax simplification, streamlining and strengthening of assessment procedures)(17) repealed the additional tax entirely as of 1 April 2012.
8. Article 14 of Decreto Legislativo 26 ottobre 1995, n. 504, Testo Unico Accise (Legislative Decree No 504/1995 of 26 October 1995, Consolidated Text on Excise) (18) states, in paragraph 1, that ‘excise duty shall be reimbursed when it has been unduly paid’; in paragraph 2, that ‘reimbursement must be requested within two years of the date of payment or of the date on which the right to reimbursement may be exercised, or the right to reimbursement shall be forfeited’; and in paragraph 4, that ‘where, at the end of court proceedings, the person liable to pay the excise duty is ordered to repay to third parties sums unduly levied by way of recovery of excise duty, the reimbursement shall be requested by that person within 90 days of the date when the judgment ordering repayment of the sums becomes res judicata, or the right to request reimbursement shall be forfeited’.
III. Facts, procedure and the questions referred
9. The applicants in the main proceedings (Gabel Industria Tessile S.p.A and Canavesi S.p.A) are both companies that individually concluded a contract with one of the defendants (A2A Energia S.p.A., and Energit S.p.A., respectively) for the supply of electricity at their production sites, and had paid them the consideration due, including the amounts charged as additional tax for the 2010-2011 period.
10. In 2020, the applicants brought proceedings against the defendants, before the Tribunale di Como (District Court, Como, Italy), seeking repayment of the sums paid as additional tax on the ground that the national provisions establishing that tax were incompatible with EU law.
11. The Tribunale di Como (District Court, Como) states that, following the judgments of the Court of Justice in Undis Servizi and Messer France, (19) the Corte suprema di cassazione (Supreme Court of Cassation, Italy), has determined that the additional tax was contrary to Article 1(2) of Directive 2008/118.
12. The main proceedings form part – the Tribunale di Como (District Court, Como) adds – of a number of ongoing disputes concerning the fate of the sums unduly paid in the period between the deadline allowed for Member States to comply with Directive 2008/118, and the point in time when the Italian legislature decided that the additional tax would cease to apply. In that regard, the lower courts in Italy have taken two different approaches.
13. According to the first approach, the applications should be rejected since, given that the defendants are private companies, disapplying the relevant national provisions would amount to granting horizontal direct effect to the provisions of Directive 2008/118. The referring court emphasises that the disapplication of the national provisions would have the effect of creating a new obligation for private parties: to repay the sums collected as unlawful taxes to the final user. By contrast, according to the second approach, the applications should be upheld, since – if I understand correctly – the principle of effectiveness could require national courts to apply the provisions of an unimplemented directive even in a dispute between private individuals.
14. Thus, harbouring doubts as to the interpretation of the relevant principles and provisions of EU law, the Tribunale di Como (District Court, Como) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In general, does the system of sources of European Union law and, specifically, the third paragraph of Article 288 TFEU preclude the disapplication by a national court, in a dispute between private individuals, of a provision of national law that is contrary to a clear, precise and unconditional provision of a directive that has not been transposed or has been incorrectly transposed, thereby imposing an additional obligation on an individual, where that constitutes, according to the national legal system … a prerequisite for the latter to be able to assert against the State the rights conferred on him or her by that directive?
(2) Does the principle of effectiveness preclude national legislation … that does not allow a final consumer to seek reimbursement of undue tax directly from the State, but grants him or her only the option of bringing a civil action for recovery against the taxable person, who alone is entitled to obtain reimbursement from the tax authority, where the sole ground for the unlawfulness of the tax – namely the fact that it is contrary to a [Union] directive – can be relied on only in the relationship between the person liable to pay and the tax authority, but not in the relationship between the person liable to pay and the final consumer, thus effectively preventing the application of the reimbursement or, in order to ensure compliance with that principle, should the final consumer be recognised as having direct standing in such a case to bring an action against the Treasury, as a case where it is impossible or excessively difficult to obtain from the supplier a refund of the tax unduly paid?’
15. On 17 May 2023, the Court addressed a request for clarification to the referring court, concerning the national procedures for recovery of undue taxes, which was answered by letter dated 31 May 2023.
16. Written observations have been submitted by the Spanish Government and the European Commission, which also presented oral argument at the hearing on 13 September 2023.
IV. Analysis
A. The first question: horizontal and vertical effect of directives
17. By its first question, the referring court essentially asks the Court whether EU law precludes the disapplication by a national court, in a dispute between two private individuals, of a provision of national law that is contrary to a clear, precise and unconditional provision of a directive that has not been transposed, even if that were to be necessary for the applicant to be able to assert the rights conferred on him or her by that directive.
18. If taken at face value, the answer to such a question would be – for the reasons explained below – rather straightforward. However, it appears from the order for reference that the referring court intended to raise a number of issues concerning the direct effect of directives which go beyond the bare text of the question. In the next sections, I shall, thus, attempt to deal with all of those issues.
1. Horizontal direct effect of directives under EU law and national law
19. To begin with, I shall discuss the issue that the first question raises expressly: is a national court permitted to apply the provisions of an unimplemented directive in a dispute between private individuals?
20. In a recent judgment concerning the provisions of an unimplemented directive, the Court first confirmed that ‘a national court is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect’. It then went on to state that such a principle is ‘without prejudice, however, to the possibility, for that court, or for any competent national administrative authority, to disapply, on the basis of domestic law, any provision of national law which is contrary to a provision of EU law that does not have such effect’. (20)
21. That means, put simply, that EU law does not require national courts to disapply national provisions which are contrary to provisions of EU law which lack direct effect in disputes between private individuals, but it also does not preclude national courts from doing so, if national law so provides. In other words, national courts may give directives horizontal direct effect, on the basis of national law.
22. At the hearing, the Spanish Government objected to the above proposition, on the ground that that would introduce some form of inequality between individuals.
23. Nevertheless, I believe the opposite to be true. If anything, it is the lack of transposition of directives which creates situations of inequality: (i) at EU level, since individuals may or may not enjoy the rights conferred on them by EU law depending, for example, on which Member State they live or work in, and (ii) at national level, between individuals who can assert their rights because they are acting against public entities, and individuals who, despite relying on the same EU rules, cannot assert their rights because they are acting against private entities. Thus, the horizontal application of unimplemented directives – if permitted by national law – would remove a source of unjust differentiation. (21) More generally, that would also enhance the effectiveness (effet utile) of the directives in question.
24. Indeed I see no plausible reason as to why EU law should be interpreted as barring a Member State’s domestic legal system from pursuing a more complete and effective application of EU provisions which, if it were not for that Member State’s own failure, would have been of general application. (22)
25. That said, if a national court were unable to grant horizontal direct effect to directives on the basis of national law, then – as already mentioned – EU law does not require it to do so. That begs the following question: should the Court re-consider its case-law on this issue?
2. The main rule: no mandatory horizontal direct effect of directives
26. In my view, it would be of little use to discuss whether the Court should reconsider its case-law on the matter.
27. There is no doubt that good arguments may be found both in favour and against recognising the horizontal direct effect of directives. However, despite the complexity of the issue – which would require a lengthy legal analysis in order to be adequately dealt with – one may easily have the impression that everything that needs to be said has already been said. (23)
28. For my part, it suffices to say that, on the one hand, I recognise the strength of the arguments put forward by past Advocates General against the directives’ ‘exceptionalism’. They took the view that there were sound reasons of principle for assigning direct effect to directives, without any distinction as to the status of the defendant. In the view of those Advocates General, this would, inter alia: (i) remove the numerous inconsistencies which have arisen from the incremental development of the case-law in this matter; (ii) prevent national courts from resorting to questionable interpretations of national law in order to ensure conformity with EU law; (iii) strengthen the individual’s right to an effective remedy and, more generally, enhance the effectives of EU law; and (iv) prevent discrimination between different individuals and ensure equal conditions of competition between public and private undertakings.(24)
29. On the other hand, however, I must admit that there are several arguments that militate against the recognition of the horizontal direct effect of directives. Article 288 TFEU draws an undeniable distinction between the various legal instruments set out therein. Unlike regulations, which are described as ‘binding in [their] entirety and directly applicable in all Member States’, directives are meant to ‘be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. I see therefore the Court’s case-law as mainly intended to preserve the special characteristics (25) and the constitutional significance (26) of this form of legislation, which reflects the ‘federal’ element of the EU legal order. (27)
30. It is true that the EU legal order in 2023 is quite unlike that in which the Court delivered its judgments in Marshall and Faccini Dori. (28) Indeed, the Treaties of Amsterdam, Nice and, most of all, Lisbon have significantly altered the institutional and constitutional landscape of EU law. Nevertheless, it seems to me that the changes made to (what is now) Article 288 TFEU – bearing in mind the specific discussions held during the 2002-2003 Convention on the Future of Europe (29) and the subsequent intergovernmental conferences (30) – do not support the idea that the drafters of the Treaties intended to alter the fundamental difference between regulations and directives.
31. Thus, in the light of the very recent case-law on this point, including from the Grand Chamber, (31) I doubt that the Court would be inclined to re-consider, let alone overturn, its consistent case-law on this issue. It seems to me that, at least for the time being – to use an idiom originating from tennis – the ball is in the Member States’ court: the case-law of the Court on this issue is clear and known to them and, should they deem the situation to be unsatisfactory, they can remedy this by amending the Treaties. (32)
32. Having said that, the fact that EU law does not require national courts to recognise the horizontal direct effect of directives would be immaterial to the main proceedings, if the disputes were considered to involve one private party (the consumer) and one entity which acted as an emanation of the State (the provider). Albeit not expressly raised by the referring court, that issue was discussed in the course of the proceedings before the Court.
3. Vertical direct effect and concept of ‘Member State’
33. As from the judgments in Van Duyn and Ratti, (33) the Court has consistently held that it would be incompatible with the binding effect that (what is now) Article 288 TFEU ascribes to directives to exclude the possibility that individuals may rely on the obligations imposed on the Member States by such instruments. In particular, the Court found that Member States cannot be allowed to take advantage of their own failure to transpose a directive. (34) As a consequence of this, individuals can validly invoke – in support of their claims or in their defence – clear, precise and unconditional provisions of unimplemented directives, in the context of disputes with the authorities of the Member State in default of transposition (vertical direct effect).
34. Over the years, the Court has made clear that the above is true regardless of the precise capacity in which the public authority is acting (as employer or as public authority), and of whether that authority bears any actual responsibility for the Member State’s failure to implement the directive in question. (35)
35. More importantly for the present case, the Court has embraced a broad concept of ‘Member State’ in this context. According to well established case-law, unconditional and sufficiently precise provisions of a directive can be relied on against organisations or bodies that must be treated as comparable to the State, ‘either because they are legal persons governed by public law that are part of the State in the broad sense’ or, when governed by private law, because ‘they are subject to the authority or control of a public body’ or, alternatively, ‘they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, [some] special powers’ (‘the Foster test’).(36)
36. In the present case, it appears from the case file that that the defendants in the main proceedings are not bodies governed by public law. However, whether they fall in one of the other two alternative situations concerning entities governed by private law is something that is for the referring court to ascertain. (37) This is the case not only because the Court does not have all the information that is required to carry out such an assessment at its disposal but also, more fundamentally, because, for that assessment to be accurate, it may be necessary to interpret provisions or principles of national law.
37. With a view to assisting the referring court, I would add some brief considerations on the type of assessment that that court is to carry out.
38. In principle, I agree with the Spanish Government that determining whether a given entity fulfils the ‘Foster test’ normally requires a case-by-case assessment in which all the relevant circumstances relating to that entity’s organisation and activity are taken into account.
39. For example, to establish whether a private entity is ‘subject to the authority or control of a public body’, a court should examine the ability of the State to exert, directly or indirectly, a dominant influence on that entity’s decision-making process – if not in the daily activities thereof, then at least on the most important choices and strategic decisions.
40. To that end, it would seem important to take into consideration, on the basis of the relevant legislation and of the entity’s internal rules, elements such as: (i) the ownership structure; (ii) the existence of special voting or veto rights in favour of some other entity; (iii) the membership of the governing bodies and the procedures for the appointments thereof; (iv) the type of activities carried out; (v) the objective(s) pursued by the entity; and (vi) the method of financing of the entity. (38) Thus, the mere fact that the State (or other public authority) has a shareholding in a company – as I understand it to be the case of the defendants I the main proceedings – is not, in itself, determinative of whether the State has control over that company.
41. As regards the determination as to whether a private entity has been required, by a public body, ‘to perform a task in the public interest’ and has been given ‘special powers’ for that purpose, I would say the following.
42. To begin with, the assessment as to whether a private entity must be treated as comparable to the State is, in my view, not to be carried out by looking (exclusively) at the general nature and activities of the entity in question. Indeed, what is particularly significant is whether the ‘Foster test’ is satisfied in respect of the very relationship which gave rise to the dispute in question. In fact, it is possible for a private entity to carry out one or more activities in the public interest, for which it enjoys special powers, whilst at the same time pursuing other activities on a purely commercial basis and in conditions of normal competition with other undertakings. (39)
43. In addition, the two elements of ‘public interest’ and ‘special powers’ are clearly cumulative: both must be present for an entity to be considered as an emanation of the State. Those elements must also be linked, in the sense that the special powers must have been granted to the entity in question ‘for [the] purpose’ of enabling it to pursue the public interest effectively. (40)
44. Furthermore, which objectives can be regarded as being pursued in the ‘public interest’ will naturally vary from Member State to Member State. However, that concept necessarily reflects the idea that the entity’s activity must not be carried out for the sole (or predominant) benefit of its owners or stakeholders, but for the benefit of the society as a whole. It is also reasonable to think that the conferral of a public service mission should result from some legislative or administrative act. (41)
45. Finally, the existence of ‘special powers’ must be identified by comparing the rules which govern the relationship which gave rise to the dispute in question with those that govern the relationship between private individuals. Are the entity in question and its counterpart on an equal footing, or at least in a comparable position, in their relationship? Could the entity in question unilaterally impose some obligation or limit its counterpart’s rights?
46. Concluding on this point on a more general note, I would like to add that, in my opinion, the ‘Foster test’ cannot be applied too broadly. (42) In today’s world, most economic activities are, in one way or another, heavily regulated. In addition, numerous entities (such as non-governmental organisations) seek to achieve objectives in the public interest, despite not being in any way related to the State; and, by the same token, many companies are owned (in whole or in part) by the State but they do not pursue any public goal.
47. Therefore, unless the horizontal/vertical distinction is reduced to a mere formality, it is crucial that private entities are – in the context of disputes such as those pending before the referring court – considered to have acted as an emanation of the State only where the ‘public’ control over those entities, or the public nature of their activities, can be clearly discerned. The temptation to take ‘shortcuts’ to help consumers and/or to find a pragmatic and fair solution to disputes which appear, on the basis of the relevant procedural framework, to be over-complicated may be understandable, but it would ultimately be ill-advised.
4. The need to preserve effectiveness as an exception to the main rule?
48. In its request for a preliminary ruling, the referring court also wonders whether, in a situation such as that at issue in the main proceedings – that is, applicants facing significant procedural hurdles to enforce their rights – the EU principle of effectiveness may be interpreted as requiring, exceptionally, national courts to apply the provisions of unimplemented directives even in disputes among private individuals.
49. I do not consider this to be the case. The principle of effectiveness (understood as effet utile (43)) has often been employed by the Court of Justice as an interpretative tool which allows, on the one hand, to exclude interpretations of EU provisions that would detract from their validity, make them redundant, or lead to absurd results and, on the other hand, to give preference to interpretations which ensure that the provisions in question have ‘full effect’, that is the capacity to achieve the objective pursued by the EU legislature. (44)
50. By contrast, the principle of effectiveness cannot – in my view – be used as a means of ‘maximising’ the scope and effect of an EU provision, to the point that they would go beyond the clear intention of the legislature, or of circumventing the basic constitutional principles of the EU legal order.
51. Furthermore, creating an additional (45) – and vaguely defined – exception to the no-horizontal-effect rule for cases of extrema ratio (sort of ‘when nothing else works’) would, in my view, only increase legal uncertainty. (46) This is an area that, as the law stands, is described by some observers as one of great complexity, (47) or lacking coherence. (48) Some of the criticism is, admittedly, not without foundation. I would, thus, be hesitant to suggest an expansion of the number or scope of the exceptions, since that would come at the expense of the predictability, coherence and intellectual rigour of the system.
52. In the light of the above, I suggest the Court to answer the first question referred to the effect that (i) EU law does not require national courts to disapply national provisions which are contrary to provisions of EU law which lack direct effect in disputes between private individuals, but it does not preclude national courts from doing so, if national law so provides; and (ii) unconditional and sufficiently precise provisions of a directive can be relied on against organisations or bodies governed by private law when they are subject to the authority or control of a public body or, alternatively, they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, some special powers.
B. The second question: national procedural autonomy and repayment of unlawful taxes
53. By its second question, the referring court essentially asks whether the principle of effectiveness precludes national legislation that does not permit a final consumer to seek reimbursement of an undue tax directly from the State, but only grants him or her the option of bringing a civil action for recovery against the provider – which collected the tax on behalf of the State and is the only entity entitled to obtain reimbursement from the tax authority – where the ground for the unlawfulness of the tax is its inconsistency with EU law, and that ground cannot be validly invoked in the action against the provider.
54. This question is prompted by the specific situation at issue in the main proceedings which – if my understanding is correct – can be summarised as follows: (i) the applicants are consumers who paid a tax, to a provider who collected that tax on behalf of the State, which was subsequently found to be incompatible with EU law; (ii) in circumstances such as those at issue, national law provides for the reimbursement of undue taxes through a two-step procedure: first, the consumer must demand repayment of the tax by the provider (before a civil court), and then that provider can demand reimbursement from the State (before an administrative court); and (iii) the consumers seem unable to rely on the provisions of Directive 2008/118 before the referring court since Italy failed to correctly transpose that directive and the defendants appear to be private companies.
55. Against that background, the referring court wonders whether a situation such as that in the main proceedings should be regarded as one in which the consumer faces an excessive difficulty or impossibility to obtain repayment of an undue tax, which could thus justify its ability to act directly against the State (rather than against the provider who collected the tax).
56. I must say, from the outset, that, despite the clarifications provided by the referring court in reply to a question of the Court, not all the features of the domestic system governing repayment of undue taxes are completely clear to me. I therefore find it regrettable that neither the parties in the main proceedings, nor – which I consider to be particularly unfortunate – the Italian Government saw fit to participate to the present proceedings.
57. For example, I wonder whether two sets of judicial proceedings are necessary in all circumstances to ensure that neither the consumer nor the provider would have to bear the burden of the undue tax. I would find such a requirement quite problematic. In that regard, it must be borne in mind that, pursuant to Article 4(3) TEU, the obligation to ‘take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ is incumbent on all the authorities of the Member States, not only on the judicial authorities.
58. As the Court held in Costanzo, ‘when the conditions under which the Court has held that individuals may rely on the provisions of a directive before the national courts are met, all organs of the administration, including decentralised authorities … are obliged to apply those provisions’. (49) In my view, the provisions of Article 1(2) of Directive 2008/118 are sufficiently clear, precise and unconditional so that they can be relied on (‘vertically’) by an individual against the public authorities, including administrative ones such as tax agencies.
59. More importantly, it is not clear to me what judicial remedies, if any, are available to individuals claiming repayment of undue taxes, if the standard procedure, provided for by Article 14 of Legislative Decree No 504/1995, were to prove insufficient to achieve that result.
60. In that regard, I would recall that the Court has consistently held that the right to a refund of charges levied in a Member State in breach of the rules of EU law is the consequence and complement of the rights conferred on individuals by the provisions of EU law prohibiting such charges. The Member State is therefore required, in principle, to repay charges levied in breach of EU law. In the absence of EU rules governing claims for the repayment of taxes, in line with the principle of procedural autonomy, it is for the domestic legal system of each Member State to lay down the conditions under which those claims may be made. However, that principle is subject to observance of the principles of equivalence and effectiveness. In particular, Member States must ensure that the conditions under which an action may be brought for recovery of sums unduly paid are such that the economic burden of the taxes can be neutralised. (50)
61. On the basis of those principles, the Court has found that a Member State may, in principle, oppose a claim for the reimbursement of an unduly paid duty made by the final consumer to whom that duty has been passed on, on the ground that it is not that consumer who has paid the duty to the tax authorities. That is dependent on the consumer – who, in the final analysis, bears the burden of that duty – being able, on the basis of national law, to bring an action against the provider for recovery of the sums unduly paid. However, if reimbursement by the provider were to prove impossible or excessively difficult, the principle of effectiveness requires that the consumer should be able to bring his or her claim for reimbursement against the tax authorities directly and that, to that end, the Member State must provide the necessary means and detailed procedural rules. (51)
62. It seems to me that those considerations are relevant to the case at hand. However, it is for the referring court to decide whether the national procedural rules in question are such that, in a situation such as that in the main proceedings, a consumer finds it impossible or excessively difficult to obtain a refund of the tax unduly paid.
63. To my mind, the condition of ‘excessive difficulty’ cannot be assessed in the abstract, but must be considered in relation to the specific situation of each applicant. Is that applicant ‘forced’ to go through one or more procedures that, because of their complexity, length and/or cost, create an unreasonable burden for him or her, having regard to amount of the sums which could be recovered? Moreover, would the availability (and the reasonable prospects of success) of those procedures be something that a prudent lawyer would be aware of, or would those remedies appear to him or her to be of uncertain feasibility?
64. If, in the light of such an analysis, the referring court were to come to the conclusion that the applicants in the main proceedings are indeed faced with a situation of practical impossibility or excessive difficulty, the EU principle of effectiveness – which, in such a case, coincides with the right to an effective remedy (52) – would then require that those consumers be permitted to act directly against the State, to obtain repayment of the undue tax.
65. In the proceedings commenced against the State, the consumers would then have ‘two aces up their sleeve’. On the one hand, they could argue that the procedural rule barring them from acting directly against the State be declared inapplicable on the basis that it contravenes the EU principle of effectiveness and, on the other hand, they could rely on the provisions of Directive 2008/118 given that the dispute is of a ‘vertical’ nature.
66. In the light of the above, the answer to the second question should, in my opinion, be that EU law does not preclude national legislation that does not permit a final consumer to seek reimbursement of a tax imposed in breach of EU law directly from the State, but grants him or her only the option of recovering that tax from the provider who collected it on behalf of the State. However, if reimbursement by the provider were to prove impossible or excessively difficult, the principle of effectiveness requires that the consumer be able to bring his or her claim for reimbursement against the tax authorities directly.
V. Conclusion
67. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunale di Como (District Court, Como, Italy) as follows:
(1) EU law does not require national courts to disapply national provisions which are contrary to provisions of EU law which lack direct effect in disputes between private individuals, but it does not preclude national courts from doing so, if national law so provides. However, unconditional and sufficiently precise provisions of a directive can be relied on against organisations or bodies governed by private law when they are subject to the authority or control of a public body or, alternatively, they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, some special powers;
(2) EU law does not preclude national legislation that does not permit a final consumer to seek reimbursement of a tax imposed in breach of EU law directly from the State, but grants him or her only the option of recovering that tax from the provider who collected it on behalf of the State. However, if reimbursement by the provider were to prove impossible or excessively difficult, the principle of effectiveness requires that the consumer be able to bring his or her claim for reimbursement against the tax authorities directly.