Brussels, 11 July 2006
The Commission has issued a Reasoned Opinion to Italy for not having introduced measures implementing the decision of the Court of Justice in case C-129/00, where certain aspects of the Italian legislation concerning the refund of unduly paid tax were found incompatible with Community law. The Reasoned Opinion has been issued in the framework of the infringement procedure enshrined in Article 228 of the EC Treaty.
According to Article 228 of the EC Treaty "If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice".
With the decision of 9 December 2003 in case C-129/00, the European Court of Justice found that Italy had failed to fulfil its obligations under the EC Treaty.
Refund system of unduly paid taxes in Italy was construed and applied by the administrative authorities and a substantial proportion of the courts, including the Italian Supreme Court, in such a way that the exercise of the right to repayment of charges levied in breach of Community rules was made excessively difficult for the taxpayer.
The main difficulties consisted in the conditions which the Italian legislation required in order to prove that the burden of the tax had not been passed on to other persons.
Since Italy did not enforce a legislation which effectively bans the recourse to any presumption in order to give evidence that the burden of proof has not been passed to another person, the Commission has decided to sent to Italy a letter of Formal Notice and subsequently a Reasoned Opinion according to Article 228 of the EC Treaty.
If the case is ultimately brought before the Court of Justice, Article 228 entitles the Commission to specify the amount of the lump sum or/and penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
Commission cases' reference numbers is 1995/2166 (Italy)