conference proceedin.. - Facultatea de Drept

Conference Proceedings - Galaţi, 24 th -25 th of April 2009
Year I, Vol. II - 2009
enforcement which must be guided by the civil adjective law in force
within the state where it is carried out.
Implicit references are made especially by the Community Courts of
Justice in the cases they are assigned to. They applied legal notions drawn
from the national law. In this respect, it was asserted that the law system of
each member state of the EU, is to designate competent courts of law in
absence of Community law regulations and to determine the procedural
conditions which will govern the actions in the law-suits destined to assure
the protection of the citizens‟ rights (rights which are the direct effect of
Community law regulations). Of course, these procedures and conditions
can not be less favorable than those referring to similar actions of an
internal nature (respecting the principle of equivalence), and they must not
make the exercising of the rights conferred by the Community law virtual
impossible or excessively difficult (the principle of effectiveness).
We will briefly analyze the two stated principles by presenting
concrete situations.
The principle of equivalence may be interpreted as compelling a
member state to extend its most favorable prescription norms to all the
actions concerning the returning of taxes and duties collected by violating
the Community law. The norms of the Community law do not prevent the
legislation of a state from establishing, in addition to a prescription term
applicable according to the Common law and according to the actions
between persons for recovering the sums of money paid but not owed,
some specific, detailed rules (but less favorable) to guide the complaints
and the legal procedures related to contesting imposed taxes and other
financial obligations. The situation would be different only if these detailed
rules would apply just to actions grounded on the Community law for the
refunding of such taxes or duties.
The principle of effectiveness is applicable even in the situation
when, in the absence of Community regulations, the task of establishing
detailed procedural rules to govern the actions either for restoring taxes
collected by violating the stipulations contained within the norms of
Community law, or for repairing the loss caused by the infringement of
Community law (including subsidiary problems such as interest payment),
is ascribed to the national juridical system of the Member State. Thus, the
actions regarding these matters, filled by people in the courts of law of a
Member State, are subject to national procedure regulations which may
demand from the claimant to act with the reasonable diligence as to avoid
the loss or limit the prolongation.
As for the priority within the relation between the norms of the
European Community law and the norms of the national law of Member
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