Grounds
Decision on costs
Operative part
Parties
In Case C-30/02
REFERENCE to the Court under Article 234 EC by the Tribunal Tributário de Primeira Instância de Lisboa (Portugal) for a preliminary ruling in the proceedings pending before that court between
Recheio – Cash & Carry SA
and
Fazenda Pública/Registo Nacional de Pessoas Colectivas,
intervener:
Ministério Público,
on the interpretation of Community law concerning recovery of sums paid though not due,
THE COURT (First Chamber),
composed of: P. Jann, President of the Chamber, A. La Pergola, S. von Bahr (Rapporteur), R. Silva de Lapuerta and K. Lenaerts, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: M. Múgica Arzamendi, Principal Administrator,
after considering the written observations submitted on behalf of:
after hearing the oral observations of Recheio – Cash & Carry SA, represented by J. Vieira Peres, and by P. Sousa Machado and M. Fontaine de Campos, advogados, of the Portuguese Government, represented by L. Fernandes and by C. Baptista Lobo, advogado, and of the Commission, represented by A. Alves Vieira and R. Lyal, at the hearing on 13 November 2003,
after hearing the Opinion of the Advocate General at the sitting on
11 December 2003,
gives the following
1By order of 27 December 2001, received at the Court on 4 February 2002, the Tribunal Tributário de Primeira Instância de Lisboa (Fiscal Court of First Instance of Lisbon) referred to the Court for a preliminary ruling under Article 234 EC three questions on the interpretation of Community law concerning recovery of sums paid though not due.
2Those questions were raised in proceedings between Recheio – Cash & Carry SA (‘Recheio’) and the Fazenda Pública/Registo Nacional de Pessoas Colectivas (Exchequer/National Register of Legal Persons) concerning repayment of registration fees paid by Recheio pursuant to Article 3(4) of the Schedule of Fees of the National Register of Legal Persons, approved by Decree No 366/89 of 22 May 1989 ( Diário da República I, series A, No 117, of 22 May 1989).
3By notarial act of 5 November 1997, Recheio increased its share capital from PTE 100 000 000 to PTE 1 000 000 000.
4On 4 March 1998 it registered that increase in capital in the National Register of Legal Persons. It was charged the sum of PTE 2 251 000 by way of fees pursuant to Article 3(4) of the Schedule of Fees of the National Register of Legal Persons, which it paid the same day.
5On 11 July 2001 Recheio brought an action before the Tribunal Tributário de Primeira Instância de Lisboa for an order declaring it to be entitled to repayment of the sum of PTE 2 250 000. It claimed that payment of the fees had been made in contravention of Community law, in particular to Articles 10(c) and 12(1)(e) 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).
6Recheio based its application on the Court of Justice’s case-law, according to which charges payable for entering an increase in the share capital of a capital company in a national register of legal persons are, where they amount to a tax for the purposes of the Directive, in principle prohibited under Article 10(c) thereof (Case C-56/98 Modelo [1999] ECR I-6427, and Case C-134/99 IGI [2000] ECR I‑7717, paragraph 25).
7The Tribunal Tributário de Primeira Instância converted Recheio’s action into an action for annulment. In its view, the action ought to have been brought within a period of 90 days running from ‘the expiry of the period prescribed for voluntary payment of taxes’ pursuant to Article 123 of the Código de Processo Tributário (Code of Tax Procedure, the ‘CTP’), introduced by Decree-Law No 154/91 of 23 April 1991 ( Diário da República I, series A, No 94, of 23 April 1991), the corresponding article now being Article 102 of the Código de Procédimento e Processo Tributário (Code of Tax Procedure and Proceedings, ‘the CTPP’), introduced by Decree-Law No 433/99 of 26 October 1999 ( Diário da República I, series A, No 250, of 26 October 1999) and amended by Law No 15/2001 of 5 June 2001 ( Diário da República I, series A, No 130, of 5 June 2001).
8The Tribunal Tributário de Primeira Instância has pointed out that a period of 90 days for introducing an action for annulment ought neither to be less favourable than the periods applicable to actions for repayment based on national law nor to make it practically impossible or excessively difficult to exercise the rights conferred by the Community legal order.
9It has found that the period in question applies to all acts that levy tax dues, whether their basis is Community or domestic law.
10In the circumstances, the Tribunal Tributário de Primeira Instância de Lisboa has decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1) Is it contrary to Community law for a Member State to fix a limitation period, for actions for repayment of taxes levied in contravention of Community law, of 90 days reckoned from the expiry of the period for voluntary payment, so that the exercise of the right to reimbursement is made excessively difficult?
2) If so, what is the minimum period that may be considered compatible with the rule that exercise of that right must not be made excessively difficult?
3) What are the criteria to be used to fix that period?’
11By application lodged at the Court Registry on 23 January 2004, Recheio requested that the oral procedure should be reopened in response to the Advocate General’s Opinion. Recheio argues that the Advocate General based his Opinion on a plainly inaccurate reading of Portuguese law to the effect that the limitation period at issue was not 90 days but five and a half months.
12On this point it must be borne in mind that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure should be reopened in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C-299/99 Philips [2002] ECR I-5475, paragraph 20; Case C-184/01 P Hirschfeldt v AEE [2002] ECR I-10173, paragraph 30, and Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I-0000, paragraph 19).
13Since neither of those two situations is a feature of this case, the Court considers that there is in the circumstances no need to order that the oral procedure should be reopened. In consequence, the request for that reopening must be dismissed.
14By its questions, which may appropriately be examined together, the national court seeks in substance to ascertain whether, in relation to a claim for repayment of charges levied in breach of Community law, it is contrary to the principle of effectiveness of Community law for the time-limit extinguishing such a claim to be fixed at 90 days from the end of the period allowed for voluntary payment of those charges.
15It must be borne in mind that Member States are in principle required to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20).
16The Court has also observed on several occasions that the problem of the repayment of charges paid though not due is settled in different ways 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 that kind are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges paid but not due must be brought before the ordinary courts, mainly in the form of actions for recovery of sums paid but not owed, such claims being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see, in particular, Case C-343/96 Dilexport [1999] ECR I-579, paragraph 24).
17This diversity between national systems derives mainly from the lack of Community rules on the refund of national charges levied though not due. In such circumstances, it is for the domestic legal system of 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 Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Case C-231/96 Edis [1998] ECR I-4951, paragraph 34).
18As regards the latter principle, the Court has recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, which protects both the taxpayer and the administration concerned ( Edis , paragraph 35).
19In this instance, Article 123 of the CTP, replaced by Article 102(1)(a) of the CTPP, lays down a limitation period of 90 days for the introduction of an application for annulment of the act fixing the charges, reckoned from the voluntary payment of those charges.
20While Edis admittedly concerned a limitation period of three years from the date on which the charge was paid, that is to say, a distinctly longer period than that at issue in the main proceedings in this case, it follows also from that judgment and the Court’s settled case-law that the Member States remain at liberty to fix longer or shorter periods for repayment of sums paid though not due, on condition that they do not render virtually impossible or excessively difficult the exercise of rights conferred by the Community legal order.
21In this instance, a period of 90 days reckoned from the end of the period allowed for voluntary payment of the charges must be considered to represent a sufficient length of time to enable the taxpayer to take the decision to bring an action for annulment in full awareness of all the facts and for that purpose to gather all the matters of fact or law required.
22As is made clear in paragraph 41 of the Advocate General’s Opinion, that period can be called reasonable, in comparison with the periods of similar duration fixed in the legal systems of several other Member States.
23So far as concerns Recheio’s argument that that period is not acceptable inasmuch as the Portuguese Republic had not transposed Directive 69/335 at the time the fees were paid, but only two years after Modelo , Community law does not prohibit a Member State which has not properly transposed Directive 69/335 from resisting actions for repayment of duties levied in contravention of that directive by relying on a national limitation period. Moreover, the fact that the Court of Justice has given a preliminary ruling on the interpretation of the provision of Community law in question is as a rule immaterial in this respect (see, in particular, Edis, paragraphs 20 and 47).
24As regards Recheio’s argument that the period at issue is not justified, in so far as there are available to the tax authorities longer periods for the taking of a decision levying charges on taxpayers, no more need be stated than that that fact does not mean that the period of 90 days at issue in the main proceedings is insufficient having regard to the principle of effectiveness. Furthermore, the objectives with which the periods available to the tax authorities in exercising their fiscal powers are consonant are generally different from those which apply to the period prescribed for the introducing of an action for annulment.
25In the light of the foregoing, it must be held that a national limitation period such as that at issue in the main proceedings does not render it excessively difficult or practically impossible to exercise the rights conferred by Community law.
26In the circumstances, the answer to be given to the questions referred for a preliminary ruling by the Tribunal Tributário de Primeira Instância must be that, with regard to a claim for repayment of charges levied in breach of Community law, the principle of effectiveness of Community law does not militate against the fixing of a limitation period of 90 days reckoned from the end of the period prescribed for voluntary payment of those charges.
27The costs incurred by the Portuguese Government 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 action pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Tribunal Tributário de Primeira Instância de Lisboa by order of 27 December 2001, hereby rules:
With regard to a claim for repayment of charges levied in breach of Community law, the principle of effectiveness of Community law does not militate against the fixing of a limitation period of 90 days reckoned from the end of the period prescribed for voluntary payment of those charges.
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