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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61985J0133

	Název: Title:		JUDGMENT OF THE COURT OF 25 FEBRUARY 1988. S. A. LES FILS DE JULES BIANCO AND S. A. J. GIRARD FILS V DIRECTEUR GENERAL DES DOUANES ET DROITS INDIRECTS. REFERENCE FOR A PRELIMINARY RULING FROM THE COUR DE CASSATION. RECOVERY OF UNDUE PAYMENTS - EVIDENCE THAT CHARGES ON THE PRICE OF GOODS HAVE NOT BEEN PASSED ON. JOINED CASES 331/85, 376/85 AND 378/85.

	Publikace: Publication:		REPORTS OF CASES 1988 PAGES 1099

	Předmět (klíčová slova): Keywords		TAXATION;

	Související předpisy: Corresponding acts:		157E

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		[309] San Giorgio · [205] Just · [131] Rewe


	Plný text: Fulltext:		Ne

Fakta:
Les fils de Jules Bianco SA (Bianco) and J. Girard Fils SA (Girard) are engaged in the purchase, importation and distribution of petroleum products. They had paid various sums by way of charges to the French tax authorities. Considering that the charges levied were unlawful, in particular under Community law, they brought actions for repayment of the charges. The French courts considered that these actions were inadmissible under French law because the plaintiffs had not produced evidence to the effect that the duties in question had not been passed on to the buyers of their products. Bianco and Girard argued that such requirement of proof was incompatible with Community law because it would be practically impossible for companies like them to comply with it.
Upon appeal, the Cour de Cassation stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice (1) whether such requirement of proof was compatible with Community law and (2) whether the answer to the question depended on (inter alia) the nature of the charge.

Názor soudu a komentář:
Pursuant to the Court’s established case-law, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature ( [131] Rewe). “[A]ny requirement of proof which has the effect of making in virtually impossible or excessively difficult to secure the repayment of charges levied contrary to Community law is incompatible with Community law[;] … this is so in particular in the case of presumptions of rules of evidence designed to place on the taxpayer the burden of establishing that the unduly paid charges have not been passed on to other persons” ( [309] San Giorgio).
The Court finds that under these rules, the French law in issue could not been upheld. It rejects the contention, put forward by the French Government, that in reality the said rules merely required the taxpayer to establish a positive fact, namely that the charge has in fact been borne by the business of the sellers of refined petroleum products. In the Court’s view, it requires the traders to establish a negative fact inasmuch as where the authorities merely allege that traders have passed on the taxes, these traders must prove that they have not passed on the unduly paid parafiscal charge to other persons.
The answer to this question does not depend on the nature of the charge. The French Government had argued that as far as indirect taxes were concerned, the presumption established by the law in issue should be admissible because indirect taxes are, by definition, to be borne ultimately by consumers; any business operating soundly will normally pass them on in the price of the product sold. The Court rejects this argument, taking the view that the actual passing on of such taxes, either in whole or in part, depends on various factors in each commercial transaction which distinguish it from other transactions in other contexts. Consequently, the actual passing on of the taxes is a matter to be established in each case individually and it may not be assumed that there is a presumption that they have been passed on and that it is for the taxpayer to prove the contrary.
While the Court thus declares incompatible with Community law a presumption that the duties unduly paid have been passed on to the buyer, it does not, as its preceding judgement in Just ( [205]) shows, rule out the possibility that the fact that such charges have been passed on to consumers be taken into account.

Shrnutí (Summary of the Judgment):
THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE MAY NOT ADOPT PROVISIONS WHICH MAKE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW CONDITIONAL UPON THE PRODUCTION OF PROOF THAT THOSE CHARGES HAVE NOT BEEN PASSED ON TO THE PURCHASERS OF THE PRODUCTS THAT WERE SUBJECT TO THE CHARGES AND PLACE THE BURDEN OF ADDUCING SUCH NEGATIVE PROOF ENTIRELY UPON THE NATURAL OR LEGAL PERSONS CLAIMING REPAYMENT. THE ANSWER DOES NOT DEPEND ON WHETHER THE NATIONAL PROVISION HAS RETROACTIVE EFFECT, THE NATURE OF THE CHARGE AT ISSUE OR WHETHER THE MARKET IS FREE, REGULATED OR MONOPOLISTIC, EITHER WHOLLY OR IN PART.

Plný text judikátu (Entire text of the Judgment):