Courts of Milan and Mantua confirm: The provincial surcharge on taxes on electricity are undue and must be reimbursed

published on 28 December 2020 | reading time approx. 3 minutes

In the period between November and December 2020, the Court of Milan, firstly, and the Court of Mantua, then, have judged as grounded the claims pursuant to section 702-bis of the Italian Civil Procedural Code filed on the issue of the reimbursement of provincial surcharge on taxes on electricity charged to the consumer companies during the years 2010 and 2011.

With these decisions, the Judges have applied the principles recently issued by the Supreme Court’s judgements issued in October and November 2019 (no. 15198/2019, no. 27099/2019 and no. 27101/2019).

 
In these decisions, the Supreme Court already disapplied the provisions establishing the provincial surcharge on taxes on electricity in force in 2010 and 2011 (already canceled starting with effect from 2012), deeming them to be incompatible with the EU legislation (as per Directive 2008/118/EC). Thus, the Court confirmed the consequent right of companies to be refunded of the amount unduly paid to the supplier companies.

 
These judgments, indeed, immediately led to the emergence of a significant number of judicial actions aimed at obtaining the reimbursement of large sums in favor of the electricity consuming companies, a dispute that had even aroused the interest of Confindustria and requested the intervention of the Ministry of Economy and Finance (MEF), which has, however, never taken a position on the matter.

 
These proceedings were then delayed due to the Covid-19 emergency crisis, which has implied the initial closure of judicial offices and the consequent postponement of the schedule of judicial activities.

 
At the end of the 2020, however, the first judgments were issued, and both have applied the principles expressed by the Supreme Court, confirming:

• the passive legitimacy of the energy supplier companies, which are directly responsible for the reimbursement of the amounts unduly paid by the consumer companies as they were (i) obliged to pay the surcharges on taxes on electricity to the Financial Administration and, contextually, (ii) recipients of the (undue) payment by consumers – final customers;
• the “good faith” of the electricity supplier, with the consequent obligation to pay only interests at the legal rate on the amount reimbursed, with effect from the date of the legal demand (according to the Court of Milan) or from the date of the out-of-court request made by the consumer company (according to the Court of Mantua).
  

Specifically, the aforementioned judgments on the merits confirm the legal principles enunciated by the Supreme Court in 2019 (as well as in some judgments issued during the period between February and July 2020) and make the recovery of the sums unduly paid as provincial surcharges on taxes on electricity by the final consumers concrete and rather immediate (within the maximum period of 4-6 months from the filing of the judicial claim).

 
Therefore, the companies unduly charged with these additional surcharges on taxes on electricity are still allowed to file civil claims for the recovery of undue payments directly against the energy suppliers at the time.

In any case, in the event that the action, that can be taken against the suppliers, is excessively burdensome (for example, in the event of the judicial winding up of the energy suppliers), it remains possible to take action for the recovery of the undue payments exceptionally and directly towards the public Tax Authorities (Agenzia delle Dogane).

 
In this regard, it is necessary to clarify that, although the possibility of taking action for the reimbursement of amounts unduly paid in 2010 and 2011 is still open, for the part of the amounts that is not yet statute-barred, it is essential to take immediate action to interrupt the statute-barred period, by sending a specific interrupting letter.

 
We remain, of course, available to examine each individual position, both to send the letter interrupting the statute-barred period and to start the consequent judicial action.