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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Fallimento Olimpiclub (Taxation) [2009] EUECJ C-2/08 (03 September 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C208.html Cite as: [2009] ECR I-7501, [2010] BVC 1019, [2009] EUECJ C-2/8, ECLI:EU:C:2009:506, EU:C:2009:506, [2009] EUECJ C-2/08 |
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(VAT Primacy of Community law Provision of national law laying down the principle of res judicata)
In Case C-2/08,
REFERENCE for a preliminary ruling under Article 234 EC from the Corte suprema di cassazione (Italy), made by decision of 10 October 2007, received at the Court on 2 January 2008, in the proceedings
Amministrazione dell'Economia e delle Finanze,
Agenzia delle Entrate,
Fallimento Olimpiclub Srl,
composed of C.W.A. Timmermans, President of the Chamber, K. Schiemann (Rapporteur), P. Klūris, L. Bay Larsen and C. Toader, Judges,
Advocate General: J. Mazák,
Registrar: R. Şereş, Administrator,
having regard to the written procedure and further to the hearing on 22 January 2009,
after considering the observations submitted on behalf of:
Fallimento Olimpiclub Srl, by G. Tinelli, avvocato,
the Italian Government, by I. Bruni, acting as Agent, and P. Gentili and W. Ferrante, avvocati dello Stato,
the Slovak Government, by B. Ricziová, acting as Agent,
the Commission of the European Communities, by E. Traversa and M. Afonso, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 24 March 2009,
gives the following
National law
'Findings made in judgments which have acquired the force of res judicata shall be binding in all respects on the parties, their lawful successors or assignees.'
'... where two sets of proceedings between the same parties are concerned with the same legal relationship, and one of those sets of proceedings has culminated in a judgment that has acquired the force of res judicata, the findings thus made concerning that legal situation or concerning the resolution of points of fact or of law on a fundamental issue common to both cases and thus constituting the logical premiss underpinning the decision in the operative part preclude that same issue of law, now settled, from being re'examined, even if the aims of the subsequent proceedings are different from those reflected in the subject'matter and form of order sought in the first.'
The dispute in the main proceedings and the question referred
'Does Community law preclude the application of a provision of national law, such as Article 2909 of the Italian Civil Code, laying down the principle of res judicata, where the application of that provision would lead to a result incompatible with Community law, thereby thwarting its application, even in areas other than State aid (in relation to which, see ... Lucchini ...) and, in particular, in matters relating to VAT and with respect to the abuse of rights in order to obtain undue tax savings, in particular in the light also of the rules of national law as interpreted in the case-law of the [Corte suprema di cassazione] according to which, in tax disputes, where a final judgment drawn up by another court in a case on the same subject contains a finding on a fundamental issue common to other cases, it has binding authority as regards that issue, even if it was drawn up in relation to a different tax period?'
The question referred for a preliminary ruling
Costs
On those grounds, the Court (Second Chamber) hereby rules:
Community law precludes the application, in circumstances such as those of the case before the referring court, of a provision of national law, such as Article 2909 of the Italian Civil Code, in a dispute concerning value added tax and relating to a tax year for which no final judicial decision has yet been delivered, to the extent that it would prevent the national court seised of that dispute from taking into consideration the rules of Community law concerning abusive practice in the field of value added tax.
[Signatures]
* Language of the case: Italian.