• In the case of Case c-2/08 Fallimento Olimiclub Srl 2009 ECR 1-7501 it was held that EU law precluded the application of a provision of national law which sought to lay down the principle of res judicata, in a dispute concerning VAT relating to a tax year for which no final judicial decision had been delivered, to the extent that it would prevent the national court seized of that dispute from taking into consideration the rules of EU law concerning abusive practice in the field of VAT.

Facts of the Case

  • In proceedings between a sports facilities company (T) and the Italian Finance Administration, the Italian Court asked the European Court of Justice for a preliminary ruling concerning the application of the principle of res judicata in legal proceedings relating to VAT.
  • T had entered a contract allowing a non-profit making association (X) to use a sports complex which it owned.
  • In return, X paid its gross income to T.
  • The Finance Administration considered that T had intended to obtain a tax advantage. As a consequence, it appointed X’s gross income to T so that T would be liable to pay VAT on it.
  • T relied on the existence of two judgments which had acquired the force of res judicata and concerned VAT adjustment notices issued as a part of the same tax inspection of T relating to the other years.
  • Those judgments were binding under the Italian Civil code art.2909 which laid down the principles of res judicata.
  • The referring court asked whether EU law precluded the application of a provision of national law, such as the Italian Civil Code art.2909, I a VAT dispute relating to a tax year for which no final judicial decision had been delivered, where that provision would prevent the referring curt from taking into consideration EU rules concerning abusive practice in the field of VAT.  

Issues in Case c 2 08 Fallimento Olimiclub SRL 2009 ECR I 7501

  • The application of res judicata would prevent the Italian court from considering Community legislation and case law, it needed to be assessed whether the principle could preclude EU law.

Held by European Court of Justice (Second Chamber)

  • Preliminary ruling given

Timmermans

  • The principle of res judicata was considered important. Accordingly, EU law did not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of EU law on the part of the decision in question. The rules implementing the principle of res judicata were a matter for the national legal order but, in accordance with the principles of equivalence and effectiveness, they could not be less favourable than those governing similar domestic actions and could not be framed so as to make it impossible or excessively difficult to exercise the rights conferred by EU law The question was specifically whether it was compatible with the principle of effectiveness to interpret res judicata as meaning that, in tax disputes, where a final judgment in a given case concerned a fundamental issue common to other cases, it had binding authority with regard to that issue, even if its findings were made in relation to a different tax period. Such an interpretation would prevent a judicial decision that had acquired the force of res judicata from being called into question, even if that decision entailed a breach of EU law.
  • That interpretation also prevented any finding on a fundamental issue common to other cases and contained in a judicial decision which had acquired the force of res judicata from being called into question in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer but relating to a different tax year.

“ It should be noted that – as the national court itself points out – not only does the interpretation in question prevent a judicial decision that has acquired the force of res judicata from being called into question, even if that decision entails a breach of Community law; it also prevents any finding on a fundamental issue common to other cases, contained in a judicial decision which has acquired the force of res judicata, from being called into question in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year.

Accordingly, if the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an interpretation of the Community rules concerning abusive practice in the field of VAT which was at odds with Community law, those rules would continue to be misapplied for each new tax year, without it being possible to rectify the interpretation. In those circumstances, it must be held that such extensive obstacles to the effective application of the Community rules on VAT cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness” p.29-31

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