Provincial additional tax on electric power excise duties abolished in Italy - refunds still possible

published on 27 December 2019

In 2011, the European Commission identified an incompatibility between the European and Italian regulations regarding the application of additional provincial taxes on excise duties on electric power (equal to: from 9.3 to 11.4 Euro/MWh for consumption up to 200,000 kWh/month, for a maximum annual amount of approximately  25,000 Euro for each meter).

Therefore, Italy abolished the additional provincial taxes with effect from 1 January 2012. Following the action brought before Court for the purpose of recovering the amount unduly paid, recently the Italian Supreme Court (with the rulings no. 27099/2019 and no. 27101/2019 of the 23 October 2019), declared the inapplicability of the provisions establishing the provincial additional tax on the excise on electricity (as said abolished in 2012), as not consistent with EU legislation (European Directive 2008/118 / EC), confirming the right to request refund of the amounts unduly paid. Consequently, any company that paid the aforementioned additional taxes (generally recharged by the supplier in the bill) in years 2010-2011, may claim the refund from the company providing the energy for the refund of the amounts unduly paid.

Specifically, with the aforementioned rulings, the Supreme Court has recalled and stated, with regard to the reimbursement of excise duties and additional taxes, that:

• only the supplier is obliged to pay excise duties and additional taxes, but the supplier can fully charge the excise duties paid to the final consumer (in Article 56 of the Law on Excise, it is also specified that the supplier companies «have the right to redress on final consumers);
• The additional taxes on the energy consumption, as the excise duties, are due by the supplier, at the time of supplying the electricity to the final consumer. The right to a refund is entirely up to the supplier, who can exercise this right  against the Tax Authority: a) in the event that the tax has not been charged to the final consumer, within two years from the date of payment of the tax; b) in the event that the tax has been charged to the final consumer and that the latter has successfully took legal action of recovery of  the undue payment, within ninety days from the date of effectiveness of the final judgment;
• In the case that additional taxes have been charged to the final consumer of an electricity supply, the consumer can take an ordinary legal action of recovery for undue payments directly against the service provider (supplier), with the further possibility, in  exceptional cases, to ask for reimbursement directly towards the Tax Authority when the consumer proves that the legal action against the supplier is extremely burdensome (as it happens, e.g., in the case of the insolvency of the supplier). The consumer is in an advantageous position, since he can benefit from an ordinary statute of limitation (10 years) for the legal civil action of recovery of the undue payments, which is longer than the time limit provided to the supplier for the refund.

Consequently, it is possible to take legal action for the recovery of the amounts not yet time-barred unduly paid during 2010 and 2011.

Once the final consumer has successfully acted for the refund against the supplier, the latter can claim the refund against the Tax Authority within ninety days from the final judgement. Therefore, the action for refund is expressly granted to the supplier, who has transferred the tax to the consumer, as a result of the action the consumer has successfully brought against him.