JUDGMENT OF THE COURT

17 November 1998 (1)

(Charges having equivalent effect — Recovery of sums

paid but not due — Procedural time-limits under national law)

In Case C-228/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the GiudiceConciliatore, Milan (Italy), for a preliminary ruling in the proceedings pendingbefore that court between

Aprile Srl, in liquidation,

and

Amministrazione delle Finanze dello Stato,

on the interpretation of Community law concerning the recovery of sums paid butnot due,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn and J.-P.Puissochet (Rapporteur), (Presidents of Chambers), G.F. Mancini, J.C. Moitinho

de Almeida, C. Gulmann, J.L. Murray, L. Sevón, M. Wathelet, R. Schintgen andK.M. Ioannou, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Aprile Srl, in liquidation, by Ernesto Beretta and Aldo Bozzi, of the MilanBar,

—    the Italian Government, by Professor Umberto Leanza, Head of the LegalDepartment in the Ministry of Foreign Affairs, acting as Agent, assisted byIvo M. Braguglia, Avvocato dello Stato,

—    the French Government, by Catherine de Salins, Deputy Head ofDirectorate in the Legal Directorate, Ministry of Foreign Affairs, andGautier Mignot, Secretary for Foreign Affairs in the same department,acting as Agents,

—    the United Kingdom Government, by John E. Collins, Assistant TreasurySolicitor, acting as Agent, and Nicholas Paines, Barrister,

—    the Commission of the European Communities, by Enrico Traversa, of itsLegal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Aprile Srl, in liquidation, represented by AldoBozzi, the Italian Government, represented by Ivo M. Braguglia, the FrenchGovernment, represented by Gautier Mignot, the United Kingdom Government,represented by Stephanie Ridley, of the Treasury Solicitor's Department, acting asAgent, and Nicholas Paines, and the Commission, represented by Enrico Traversa,at the hearing on 17 February 1998,

after hearing the Opinion of the Advocate General at the sitting on 2 April 1998,

gives the following

Judgment

1.

    By order of 25 June 1996, received at the Court Registry on 28 June 1996, theGiudice Conciliatore (Judge-Conciliator), Milan, referred to the Court of Justicefor a preliminary ruling under Article 177 of the EC Treaty four questions on the

interpretation of Community law concerning recovery of sums paid but not due.

2.

    Those questions were raised in proceedings brought by Aprile Srl, in liquidation(hereinafter 'Aprile‘), against Amministrazione delle Finanze dello Stato (StateFinance Administration, hereinafter 'the Administration‘) concerning the latter'srefusal to repay to Aprile certain charges collected in breach of Community law inrespect of customs transactions.

3.

    In its judgments in Case 340/87 Commission v Italy [1989] ECR 1483 and CaseC-209/89 Commission v Italy [1991] ECR I-1575, the Court held that the ItalianRepublic had failed to fulfil its obligations under the provisions of the Treatyconcerning the prohibition of charges having an effect equivalent to customs dutiesby charging traders in respect of intra-Community trade the cost of inspections andadministrative formalities carried out during part of the normal business hours ofcustoms offices at frontier posts as determined by Council Directive 83/643/EECof 1 December 1983 on the facilitation of physical inspections and administrativeformalities in respect of the carriage of goods between Member States (OJ 1983L 359, p. 8), as amended by Council Directive 87/53/EEC of 15 December 1986(OJ 1987 L 24, p. 33), and by requiring from each undertaking individually, whereservices were rendered simultaneously to several undertakings individually, inconnection with the completion of customs formalities in intra-Community trade,payment of an amount disproportionate to the cost of the services provided.

4.

    The Italian Republic complied with those judgments by amending its rules witheffect from 13 June 1991 and 1 November 1992 respectively. However, thosemeasures did not apply to situations existing before their entry into force, inparticular the repayment by the Administration to the traders concerned ofamounts collected by the customs offices in breach of Community law.

5.

    It was in those circumstances that the main proceedings were brought before theGiudice Conciliatore, Milan, who, in a previous request for a preliminary ruling,had asked the Court of Justice for guidance as to the applicability to trade withnon-member countries of Directive 83/643, as amended by Directive 87/53, and theprovisions of the Treaty concerning the prohibition of charges having equivalenteffect.

6.

    By judgment of 5 October 1995 in Case C-125/94 Aprile v Amministrazione delleFinanze dello Stato [1995] ECR I-2919, hereinafter 'Aprile I‘) the Court held, first,that Directive 83/643, as amended by Directive 87/53, was not applicable to customsformalities in respect of goods from non-member countries, and, second, that theMember States were not entitled unilaterally to impose charges having equivalenteffect in trade with those countries.

7.

    Following the judgment in Aprile I, it fell to the national court to consider anobjection raised by the defendant administration to the effect that Aprile's claimed

right to reimbursement had become statute-barred by virtue of Article 29 of LawNo 428/1990 of 29 December 1990 (Community law for 1990, GURI No 10 of 12January 1991), which relates to the 'repayment of taxes recognised to beincompatible with the Community rules‘. Pursuant to Article 29(1):

'The five-year time-bar laid down in Article 91 of the Consolidated version of theprovisions relating to customs duties ... shall be deemed to apply to all claims andactions which may be brought for refund of sums paid in connection with customsoperations. That period, and also the limitation period laid down in Article 84 ofthe same instrument, shall be reduced to three years as from the 90th day followingthe entry into force of this Law.‘

8.

    The Giudice Conciliatore, Milan, observed in particular that, although purportingto be provisions for the interpretation of the existing legislation, those provisionswere in fact intended to amend that legislation, as interpreted by the CorteSuprema di Cassazione. According to the case-law of the latter court, whereas thefive-year time-limit laid down by the customs legislation applied only to cases of'calculation errors in the assessment or the application of a duty other than thatlaid down in the tariff‘, actions for repayment where, in breach of Community law,sums had been paid although not due, namely cases of 'objective undue payment‘of the kind referred to in Article 2033 of the Civil Code, were subject to theordinary limitation period of 10 years laid down in Article 2946 of the same code.

9.

    Entertaining doubts as to the compatibility of the provisions at issue with certainprinciples of Community law, the Giudice Conciliatore, Milan, sought a preliminaryruling on the following additional questions:

'1.    Do the principles of legal certainty, effective protection of rights arisingunder Community law and non-discrimination as regards the protection indamages of the aforesaid rights (according to which the proceduralconditions of domestic law must not be less favourable and, in any event,must not make it excessively difficult to exercise such rights), as formulatedin the case-law of the Court of Justice, preclude the introduction of nationalrules, such as those laid down in the first paragraph of Article 29 of Law No428 of 29 December 1990, which, whilst it is apparently formulated as aninterpretative provision and, as a result, has retroactive effect, in factsubstituted a (five-year) time-limit for the ordinary (10-year) limitationperiod formerly in force, and which, in further reducing the prescriptionperiod to three years, considers those periods to be already in course at thetime when it entered into force, thereby derogating, without apparentjustification, also from the general principle set out in Article 252 of theimplementing and transitional provisions of the Civil Code, under which, inthe event that the exercise of a right is made subject to a shorter time-limitthan that laid down by previous laws, the new time-limit applicable also tothe exercise of rights which arose previously begins to run only as from theentry into force of the new provision?

2.    Does the principle that the procedural conditions of domestic law for theprotection of rights arising under Community law must not be lessfavourable than those relating to similar actions of a domestic nature(judgments of 15 December 1976 in Case 33/76 Rewe vLandwirtschaftskammer Saarland [1976] ECR 1989 and Case 45/76 Cometv Produktschap voor Siergewassen [1976] ECR 2043 upheld in subsequentother judgments) preclude the introduction of a national provision, such asthat provided for in the first paragraph of Article 29 of Law No 428 of29 December 1990, which, whilst apparently designed to standardise thetime-limits for the repayment of sums paid in relation to customsoperations, in reality (as is clear from the heading and the actual wordingof the provision) has the effect of extending the time-limits formerly laiddown by Article 91 of the Customs Law (applicable only in the event ofcalculation errors or where a duty other than that laid down in the tariff isapplied) to objective undue payments made as a result of breaches ofCommunity law, whilst analogous claims for the recovery of objective unduepayments under the ordinary domestic law (Article 2033 of the Civil Code)are subject to the 10-year limitation period?

3.    Is the principle laid down by the Court of Justice in Case C-208/90 Emmottv Minister for Social Welfare and Attorney General — to the effect that, untilsuch time as an EEC directive has been properly transposed, a defaultingMember State may not rely on an individual's delay in initiating proceedingsagainst it in order to protect rights conferred upon him by the provisions ofthe directive and that a period laid down by national law within whichproceedings must be initiated cannot begin to run before that time —, as anapplication of the principle of legal certainty, binding upon the nationalcourts in the same way as written provisions of Community law?

4.    If the preceding question is answered in the affirmative, does theaforementioned principle laid down in Case C-208/90 Emmott v Minister forSocial Welfare and Attorney General, by virtue of its constituting a specificapplication of one of the fundamental principles of Community law, havegeneral, direct effect, that is to say, is it directly applicable and may it berelied upon before the national courts by individuals whenever a directiveis not properly transposed — as in the case relating to Directive 83/643/EECwhich formed the subject of the judgment in Case 340/87 Commission v Italy[1989] ECR 1483 — and, in any event, whenever national provisions areretained or introduced which lay down rules inconsistent with what isprovided by directly applicable Community rules, such as those of theTreaty prohibiting charges having equivalent effect and of the CommonCustoms Tariff which were the subject of the Court's judgment in CaseC-209/89 Commission v Italy and its judgment of 5 October 1995 in CaseC-125/94 Aprile, in liquidation v Amministrazione delle Finanze dello Stato,where the national provisions maintained in force required the payment,

contrary to Community law, of charges not due in circumstances (such asthe customs clearance of goods) such that the trader was not in a positionto refuse to pay? It is therefore asked whether the Member State in breachof the obligation to implement Community provisions having direct effectis entitled to plead that time-limits or limitation periods expired during thetime when the incompatible national provisions were maintained in force.‘

The admissibility of the questions

10.

    The French Government has expressed doubts as to the admissibility of thequestions on which a preliminary ruling is sought. In its view, the scope of theprovisions at issue is uncertain and if an interpretation were to be adoptedaccording to which the action for repayment brought by Aprile was brought withinthe prescribed period, the questions submitted would not be necessary in order forjudgment to be given in the proceedings.

11.

    In that regard it need only be pointed out that it is for the national court to assessthe scope of the national provisions and the manner in which they must be applied(see, in particular, the judgment in Case C-45/94 Ayuntamiento de Ceuta [1995]ECR I-4385, paragraph 26). Since the national court is best placed to assess, inview of the particularities of the case, the need for a preliminary ruling in order togive its judgment, the preliminary questions cannot be regarded as inadmissible forreasons relating to a certain interpretation of the provisions at issue (see, byanalogy, Case C-194/94 CIA Security International v Signalson and Securitel [1996]ECR I-2201, paragraph 20).

12.

    The questions submitted by the national court should therefore be examined.

The first and second questions

13.

    By its first and second questions the national court seeks essentially to ascertainwhether Community law precludes the application of a national provision which,for all actions for reimbursement of customs charges, introduces a special time-limitof five, and subsequently three, years instead of the ordinary limitation period of10 years laid down for actions for the recovery of sums paid but not due.

14.

    Aprile considers that the answer to those questions should be in the affirmativesince the provision at issue, operating retroactively, conflicts fundamentally with theearlier provisions of the Civil Code and the customs legislation, as interpreted bythe Corte Suprema di Cassazione. That court held that an action for sums paid butnot due under Community law, based on the lack of a power of taxation isgoverned by the general limitation rules of the Civil Code and not the special time-limit laid down by the tax or customs legislation, which applies only to actions for

the recovery of sums paid in excess as a result of an error of calculation orincorrect application of a tariff.

15.

    The Italian, French and United Kingdom Governments contend, on the contrary,that the time-limit imposed by the contested provision is amply sufficient to ensurethat the exercise of rights under Community law is not rendered impossible orexcessively difficult and that that period applies in the same way to all actions forreimbursement of customs charges, whether based on national or Community law. The Italian Government explains that the same period of three years applies innational law in relation to various taxes and observes that the same period is laiddown by Community law for the repayment or remission of customs duties. It alsorefers to the most recent case-law of the Corte Suprema di Cassazione, whichapplied to an action for recovery of sums paid but not due under Community lawthe time-limit specifically laid down by the national tax legislation and not thelimitation period laid down for actions for recovery of sums unduly paid broughtunder the ordinary law.

16.

    For its part, referring to its observations in Case C-231/96 Edis [1998] ECR I-0000,the Commission suggests that the questions be reformulated. In its view, theyessentially seek to ascertain whether Community law precludes national legislationwhich makes actions for the reimbursement of charges which were paid inconnection with customs operations and have been recognised as incompatible withCommunity law subject to a time-limit which presupposes the existence of a powerto impose tax and a tax debt owed to the State rather than to a limitation periodwhich, under the same legislation, is applicable in cases of objective unduepayments deriving from the absence of any such power or debt. In response, theCommission refers in particular to Case 240/87 Deville v Administration des Impôts[1988] ECR 3513 in which it was held that a national legislature may not,subsequent to a judgment of the Court from which it follows that certain legislationis incompatible with the Treaty, adopt a procedural rule which specifically reducesthe possibilities of bringing proceedings for repayment of charges levied though notdue under that legislation.

17.

    As the Court has held on several occasions, a comparison of the national systemsshows that the problem of disputing charges which have been unlawfully claimedor refunding charges which have been paid when not due is settled in differentways in the various Member States, and even within a single Member State,according to the various kinds of taxes or charges in question. In certain cases,objections or claims of this type are subject to specific procedural conditions andtime-limits under the law with regard both to complaints submitted to the taxauthorities and to legal proceedings. In other cases, claims for repayment ofcharges which were paid but not due must be brought before the ordinary courts,mainly in the form of claims for the refunding of sums paid but not owed, suchactions being available for varying lengths of time, in some cases for the limitationperiod laid down under the general law (see Case 68/79 Just v Ministry for Fiscal

Affairs [1980] ECR 501, paragraphs 22 and 23, Case 61/79 Denkavit Italiana [1980]ECR 1205, paragraphs 23 and 24, Case 811/79 Amministrazione delle Finanze delloStato v Ariete [1980] ECR 2545, paragraphs 10 and 11, and Case 826/79Amministrazione delle Finanze dello Stato v Mireco [1980] ECR 2559, paragraphs11 and 12).

18.

    This diversity between national systems derives mainly from the lack of Communityrules on the refunding of national charges levied though not due. In suchcircumstances, it is for the domestic legal system of each Member State todesignate the courts and tribunals having jurisdiction and to lay down the detailedprocedural rules governing actions for safeguarding rights which individuals derivefrom Community law, provided, first, that such rules are not less favourable thanthose governing similar domestic actions (principle of equivalence) and, second,that they do not render virtually impossible or excessively difficult the exercise ofrights conferred by Community law (principle of effectiveness) (see, most recently,Edis, cited above, paragraphs 19 and 34, and Case C-260/96 SPAC v Ministero delleFinanze [1998] ECR I-0000, paragraph 18).

19.

    As regards the latter principle, the Court has held that it is compatible withCommunity law to lay down reasonable time-limits for bringing proceedings in theinterests of legal certainty which protects both the taxpayer and the administrationconcerned (Case 33/76 Rewe v Landwirtschafskammer Saarland, cited above,paragraph 5, and Case 45/76 Comet v Produktschap voor Siergewassen, cited above,paragraphs 17 and 18; Denkavit Italiana, cited above, paragraph 23; see also CaseC-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 28, and Case C-90/94Haahr Petroleum v Åbenrå Havn and Others [1997] ECR I-4085, paragraph 48). Such time-limits are not liable to render virtually impossible or excessively difficultthe exercise of rights conferred by Community law. In that regard, a time-limit ofthree years under national law, reckoned from the date of the contested payment,appears reasonable (see Edis and SPAC, cited above, paragraphs 35 and 19respectively).

20.

    Observance of the principle of equivalence implies, for its part, that the proceduralrule at issue applies without distinction to actions alleging infringements ofCommunity law and to those alleging infringements of national law, with respectto the same kind of charges or dues. That principle cannot, however, beinterpreted as obliging a Member State to extend its most favourable rulesgoverning recovery under national law to all actions for repayment of charges ordues levied in breach of Community law (see Edis and SPAC, cited above,paragraphs 36 and 20 respectively).

21.

    Thus, Community law does not preclude the legislation of a Member State fromlaying down, alongside a limitation period applicable under the ordinary law toactions between private individuals for the recovery of sums paid but not due,special detailed rules, which are less favourable, governing claims and legalproceedings to challenge the imposition of charges and other levies. The position

would be different only if those detailed rules applied solely to actions based onCommunity law for the repayment of such charges or levies (see Edis and SPAC,cited above, paragraphs 37 and 21 respectively).

22.

    In this case, it must be noted that the time-limit at issue expressly applies to allclaims and proceedings for the reimbursement of sums paid in respect of customsoperations. Moreover, according to the Italian Government, whose statement tothat effect has not been contradicted, a similar time-limit applies to actions for therepayment of a number of indirect levies. Thus, as the Advocate General observedin point 31 of his Opinion, that time-limit thus applies without distinction to allactions for recovery of charges of that kind, whatever their basis, and cannottherefore be regarded as contrary to the principle of equivalence.

23.

    The Commission, however, has stated, referring to its observations in Edis, citedabove, that the provision at issue prompted the Corte Suprema di Cassazione todepart from its earlier case-law in that hitherto it had restricted the application oftime-limits such as the one at issue to cases of errors in the calculation of taxes. By making repayment of the sums paid subject to the three-year time-limit laiddown in Article 29 of Decree-Law No 428/1990 rather than the 10-year limitationperiod under the ordinary law, that provision, as interpreted by the Corte Supremadi Cassazione, specifically curtailed the opportunity for the persons concerned tobring proceedings to secure repayment of charges levied in breach of Communitylaw, thereby disregarding the judgments in Case 309/85 Barra v Belgium andAnother [1988] ECR 355 and Deville, cited above.

24.

    It should be noted that in paragraph 19 of Barra, cited above, the Court held thatCommunity law precludes a national legislative provision which restricts repaymentof a duty held to be contrary to the Treaty by a judgment of the Court solely toplaintiffs who brought an action for repayment before the delivery of thatjudgment. Such a provision simply deprives natural and legal persons who do notmeet that condition of the right to obtain repayment of amounts paid but not dueand therefore renders the exercise of the rights conferred on them by Communitylaw impossible.

25.

    Similarly, in Deville, cited above, the Court held that a national legislature may not,subsequent to a judgment of the Court from which it follows that certain legislationis incompatible with the Treaty, adopt a procedural rule which specifically reducesthe possibilities of bringing proceedings for repayment of charges levied though notdue under that legislation.

26.

    It is clear from those judgments that a Member State may not adopt provisionsmaking repayment of a tax held to be contrary to Community law by a judgmentof the Court, or whose incompatibility with Community law is apparent from sucha judgment, subject to conditions relating specifically to that tax which are less

favourable than those which would otherwise be applied to repayment of the taxin question.

27.

    As the Advocate General observed in point 45 of his Opinion, the matters by whichthis case is characterised differ considerably from those noted in theabovementioned judgments.

28.

    In the first place, the provision at issue, although significantly reducing the periodwithin which reimbursement of sums paid but not due may be claimed, sets a time-limit which is sufficient to guarantee the effectiveness of the right toreimbursement. It is clear from the written observations and oral argumentpresented to the Court that the Italian courts, including the Corte Suprema diCassazione itself, have interpreted that provision as allowing proceedings to beinstituted within the three years following its entry into force. In thosecircumstances, that provision cannot be regarded as having retroactive effect.

29.

    Next, the time-limit at issue is applicable not solely to a particular kind of chargewhich has previously been declared incompatible with Community law but to awhole range of internal charges and taxes for which the legislation has standardisedthe rules on time-limits and limitation periods.

30.

    Finally, the adoption of the contested Law, although subsequent to the judgmentof 30 May 1989 in Commission v Italy, cited above, preceded the judgment of 21March 1991 in Commission v Italy, cited above, and the judgment in Aprile I.

31.

    In view of those factors, the legislation at issue cannot be regarded as a measureintended to limit specifically the consequences of the Court's findings in theabovementioned judgments. In that regard, it is important, as observed inparagraph 22 of this judgment, to note in particular that the provision at issuerelates to all claims and proceedings for the repayment of sums paid in relation tocustoms operations, whatever the grounds on which reimbursement is claimed, andthat it sets a time-limit similar to that already laid down for various taxes.

32.

    Moreover, the findings made in the judgment of 30 May 1989 in Commission vItaly, cited above, the only judgment delivered before the adoption of thatprovision, related very specifically to the imposition on traders, in respect ofintra-Community trade, of the cost of inspections and administrative formalitiescarried out during part of the normal business hours of customs offices at frontierposts. However, as is clear from paragraph 19 of the judgment in Aprile I, it iscommon ground that some of the goods imported by Aprile and affected by thecharges of which Aprile seeks reimbursement originated in non-member countries. Moreover, as the Advocate General stated in point 19 of his Opinion precedingthat judgment, it was made clear in the main proceedings that they were specificallyconcerned with charges for customs services provided outside normal businesshours.

33.

    It follows that the solution adopted in Barra and Deville, cited above, is notapplicable to this case.

34.

    The answer to the first two questions must therefore be that Community law doesnot preclude the application of a national provision which, for all actions forrepayment of customs charges, imposes a special time-limit of five, andsubsequently three, years, instead of the ordinary limitation period of 10 years foractions for the recovery of sums paid but not due, provided that that time-limit,which is similar to that imposed for certain taxes, applies in the same way toactions based on Community law for repayment of such charges as to those basedon national law.

The third and fourth questions

35.

    By its third and fourth questions, the national court, referring to the judgment of25 July 1991 in Case C-208/90 Emmott v Minister for Social Welfare and AttorneyGeneral [1991] ECR I-4296, seeks essentially to ascertain whether Community lawprecludes a Member State from relying on a national time-limit to resist actions forthe repayment of taxes levied in breach of Community provisions at a time whenthat Member State has not yet amended its national rules to render themcompatible with those provisions.

36.

    Aprile considers that those questions should be answered in the affirmative sincethe principle laid down in Emmott is very wide in scope and is intended to governall similar situations in which the existence of national provisions contrary to theCommunity provisions prevents a citizen from ascertaining his rights.

37.

    The Italian, French and United Kingdom Governments contend on the contrarythat that principle is not applicable in a case like this in which the rights invokedderive not from a directive but from rules contained in Treaties, internationalagreements and Community regulations. In the view of those Governments, it isclear from Case C-338/91 Steenhorst-Neerings [1993] ECR I-5475 and Case C-410/92Johnson [1994] ECR I-5483) that the course followed in Emmott was justified bythe specific circumstances of that case and did not in any way amount to anexpression of a fundamental principle of Community law.

38.

    Initially, the Commission maintained that Steenhorst-Neerings and Johnson, citedabove, concerned social benefits that had been improperly withheld and were nottherefore relevant to this case. It thus considered that the solution adopted inEmmott should be followed in proceedings for repayment of charges levied inbreach of Community law, otherwise a defaulting Member State might be allowedto profit from its own non-compliance. However, at the hearing the Commissionabandoned that thesis, acknowledging that it had been undermined by the judgmentin Case C-188/95 Fantask and Others [1997] ECR I-6783.

39.

    It is clear from the answer given to the first two questions that Community lawdoes not in principle prohibit a Member State from resisting actions for repaymentof duties levied in breach of Community law by relying on a time-limit undernational law of three years.

40.

    It is true that in paragraph 23 of Emmott, cited above, the Court held that, untilsuch time as a directive has been properly transposed, a defaulting Member Statemay not rely on an individual's delay in initiating proceedings against it in order toprotect rights conferred on him by the provisions of a directive and that a periodlaid down by national law within which proceedings must be initiated cannot beginto run before that time.

41.

    However, as was confirmed by the Court in paragraph 26 of Johnson, cited above,it is clear from the judgment in Steenhorst-Neerings, cited above, that the solutionadopted in Emmott was justified by the particular circumstances of that case, inwhich a time-bar had the result of depriving the plaintiff in the main proceedingsof any opportunity whatever to rely on her right to equal treatment under aCommunity directive (see also Haahr Petroleum, cited above, paragraph 52, andJoined Cases C-114/95 and C-115/95 Texaco and Olieselskabet Danmark [1997] ECRI-4263, paragraph 48).

42.

    The Court thus held in Fantask and Others, cited above, that Community law doesnot prevent a Member State which has not properly transposed Council Directive69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ,English Special Edition 1969 (II), p. 412) from resisting actions for repayment ofduties levied in breach thereof by relying on a limitation period under national lawof five years reckoned from the date on which those duties became payable.

43.

    In this case, it does not appear from the documents before the Court and thearguments presented at the hearing that the conduct of the Italian authorities, inconjunction with the existence of the contested time-limit, had the effect, as it didin Emmott, of depriving the plaintiff company of any opportunity of enforcing itsrights before the national courts.

44.

    Moreover, it is clear from the case-law of the Court (Haahr Petroleum, cited above,paragraph 53, and Texaco and Olieselskabet Danmark, cited above, paragraph 49)that the solution adopted in Emmott is not applicable to claims for repayment notbased on the direct effect of a directive. Even though the Court, in Aprile I, gavea ruling as to the scope of Directive 87/53, it is clear from the documents nowbefore the Court that the incompatibility of the charges at issue with Communitylaw derives not from a failure to implement, or incorrect transposition of, thatdirective but from infringement of the provisions of the Treaty or of other directlyapplicable Community instruments.

45.

    The answer to the third and fourth questions must therefore be that, incircumstances such as those of the main proceedings, Community law does not

prohibit a Member State from resisting actions for repayment of charges levied inbreach of Community law by relying on a time-limit under national law even if thatMember State has not yet amended its national rules in order to render themcompatible with those provisions.

Costs

46.

    The costs incurred by the Italian, French and United Kingdom Governments andthe Commission, which has submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the action pending before the national court, the decision on costs is amatter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Giudice Conciliatore, Milan, byorder of 25 June 1996, hereby rules:

1.    Community law does not preclude the application of a national provisionwhich, for all actions for repayment of customs charges, imposes a specialtime-limit of five, and subsequently three, years, instead of the ordinarylimitation period of 10 years for actions for the recovery of sums paid butnot due, provided that that time-limit, which is similar to that imposed forcertain taxes, applies in the same way to actions based on Community lawfor repayment of such charges as to those based on national law.

2.    In circumstances such as those of the main proceedings, Community lawdoes not prohibit a Member State from resisting actions for repayment ofcharges levied in breach of Community law by relying on a time-limitunder national law even if that Member State has not yet amended itsnational rules in order to render them compatible with those provisions

Rodríguez IglesiasKapteyn Puissochet Mancini Moitinho de Almeida Gulmann Murray Sevón Wathelet Schintgen Ioannou

Delivered in open court in Luxembourg on 17 November 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: Italian.