Until December 2012, electricity suppliers automatically charged end-users in their bills the provincial additional tax on excise duties on electricity, for an amount that varied according to the province of supply. However, in 2011, the Court of Justice of the European Union declared the incompatibility between the European legislation and the Italian legislation that had established the additional provincial tax on excise duties and, consequently, the latter was repealed in Italy with effect from 1 December 2012.
This gave rise to an extensive and troubled strand of litigation that culminated in 2019, when the Supreme Court of Cassation – with several pronouncements quite similar to each other – ruled few cases in which end-user companies had generally acted against the Italian Customs and Monopolies Agency to request the reimbursement of the excise duties paid. In these decisions, the Supreme Court addressed and resolved two specific issues: (i) the incompatibility of national regulations on excise duties with EU legislation and (ii) the consequent possible reimbursement to the user of additional taxes unduly collected.
In particular, the Supreme Court expressed the following principles: 1) the party obliged to pay excise duties to the Customs and Monopolies Agency is solely the electricity supplier; 2) the supplier may charge the excise duties paid to the final consumer in full; 3) the relationship between the supplier and the customs authorities on one hand, and the supplier and the final consumer on the other one, are autonomous and do not interfere with each other; 4) as result of the aforementioned autonomy, the final consumer - even in the event of the tax being charged by the supplier - is not entitled to request reimbursement of the excise duties unduly paid directly to the Customs and Monopolies Agency; 5) the right to claim for reimbursement to the Customs and Monopolies Agency is recognized solely to the electricity supplier, who may exceptionally exercise it: a. in the event that he has not charged the tax to the final consumer, within two years from the date of payment (which becomes the starting point for the limitation period of the right to request reimbursement); b. in the event that the final consumer has successfully brought legal action against him to recover undue payments, within ninety days of the related decision becoming res judicata; 6) in the event that excise duties and surtaxes are charged to the final consumer, the latter may bring a civil action to recover undue payments directly against the electricity supplier.
The above-mentioned rulings of the Supreme Court of Cassation have, therefore, recognized the unequivocal right of the final consumer, who has a direct relationship of a private nature with the electricity service provider, to take civil action exclusively against the electricity suppliers in order to ascertain the undue payment made as provincial surcharge on the excise tax on electricity in the 2010-2011 reference period and thus request the full reimbursement.
It has also indirectly emerged that it is substantially impossible for the electricity suppliers to reach a settlement agreement with the final consumer, either out of court or in court, as the former in turn may only exercise their right to claim reimbursement against the Customs and Monopolies Agency only in the event that the final consumer has successfully exercised legal action to recover undue payments and within ninety days of the related judgement becoming final (i.e. res jucicata). This implies that the final consumer, although his right to do so has been clearly recognized, will be able to obtain reimbursement of the excise duties and surcharges unduly paid to his electricity supplier in the two-year period in question (2010-2011) only by successfully bring the related legal action.
This was followed, at the end of 2020, by the first significant judgments of merit (Court of Milan and Court of Mantua) where, accepting in full the claims for reimbursement of undue payments pursuant to art. 2033 of the Italian Civil Code made by end-consumer companies against the electricity suppliers, the Courts consequently ordered the electricity supplier to return to the plaintiff companies the amounts paid as additional excise duties in 2010 and 2011.
Having ascertained the right to the reimbursement of the additional taxes unduly paid, it is now burden of end-user companies, before being able to start the eventual judicial procedure for reimbursement, to take the necessary legal steps required to promptly and correctly interrupt the running of the limitation period for the action for recovery of undue payments, which is equal to 10 years. After this term, in fact, every claim and right of the final consumer against the electricity suppliers will be definitively prejudiced. Therefore, for those who have not interrupted the limitation period for 2010, there is still the possibility to do so at least for 2011.