CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 mars 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s58B8AE49 { clear:both; mso-column-break-before:always } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 24 March 2025   FIRST SECTION Applications nos. 6418/16 and 57964/21 Giovanni ANTONELLINI against Italy and Massimo SABBATINI against Italy lodged on 23 January 2016 and 9 November 2021 respectively communicated on 6 March 2025 SUBJECT MATTER OF THE CASE The applications concern the special tax regime “of the margin” ( regime del margine ) provided for by, at the time of the facts of the case, European Community (“EC”) law. In particular, Article 36 of Decree-Law no.   41 of 23   February 1995 (converted into Law no.   85 of 22   March   1995), which implemented Directive 94/5/CE of 14 February 1994, established a value-added tax (“VAT”) exemption in respect of intra-EC purchases of second-hand goods, provided that the VAT obligations had been previously complied with by one of the previous owners with no right to deduct the payment. In 2002 (as regards the first applicant) and in the period between   1999 and 2002 (as regards the second applicant), the applicants purchased second-hand vehicles, as defined by Article   38   §   4 of Decree-Law no.   331 of 30   August 1993 (converted into Law   no.   427 of 29   October   1993), by sellers who declared in the invoice that the conditions for the applicability of the regime of the margin existed. Therefore, the applicants complied with their obligation to declare the transaction but did not make any VAT payment. However, on 17 November 2005 (as regards the second applicant) and 13   December 2005 (as regards the first applicant), they were notified by the Tax Authority ( Agenzia delle Entrate ) of tax assessments imposing on them the payment of the VAT on the cited transactions, as well as tax surcharges. The applicants challenged the tax assessments. However, in the last instance, the Court of Cassation dismissed their arguments (see judgment   no.   15630 of 24 July 2015, as regards the first applicant, and judgment no.   16962 of 16 June 2021, as regards the second applicant). It observed that, pursuant to Article   6 of Decree no. 471 of 18   December 1997, the applicants had a duty to satisfy themselves of the regularity of the invoices issued by the sellers. In the Court of Cassation’s view, such obligation included a duty to assess the “substantial regularity” of the transaction, namely the correct legal qualification made in the invoice by the sellers. Therefore, they should have examined the vehicles’ registration documents in order to assess whether, “at least presumptively”, one of the previous owners had complied with the VAT obligation without having a right to deduct the payment. The applicants complain under Article 7 of the Convention and Article   1 of Protocol No. 1 to the Convention that the duty to assess the “substantial regularity” of the transaction was not provided by the law, was not foreseeable and imposed on them an excessive burden to assess the compliance by third parties with their tax obligations. They further argue that circular letters no. 40/E of 18   July 2003 and no. 14/E of   26 February   2008 of the Tax Authority, which aimed at clarifying the scope of the duty of the purchaser of second-hand vehicles in respect of the regularity of the VAT payments made by the seller, were retrospectively applied to their detriment. Relying on Article 6 § 1 of the Convention, the first applicant further complains of the unreasonable length of the proceedings before the tax courts. He argues, in particular, that the Pinto remedy provided for in the Italian legal system did not apply to tax proceedings. QUESTIONS TO THE PARTIES 1.     Did the acts in respect of which the applicants have been imposed tax surcharges constitute, at the time when they were committed, an offence under national law, as interpreted by the relevant domestic case-law (see, inter alia , Court of Cassation, judgments no. 1841 of 18   February   2000, no.   2603 of 6 March 2000, no. 4284 of 23 March 2001, no.   5880 of 20   April   2001, and no. 7681 of 16   May   2003), as envisaged by Article   7 of the Convention?   2.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1? If so:   (a)     was the interference in accordance with the principle of lawfulness, within the meaning of the provision? In particular, in the light of the relevant domestic case-law (see, inter alia , the Court of Cassation’s judgments cited above), was the duty imposed on the applicants’ sufficiently foreseeable (see, mutatis mutandis , Serkov v. Ukraine , no.   39766/05, §§   36-44, 7   July 2011)?   (b)     was the interference proportionate to the aim pursued, within the meaning of the provision? In particular, did the domestic authorities place an excessive burden on the applicants by imposing on them a duty to assess the substantial regularity of the economic operation, and considering that it included an obligation to assess whether the previous owners of the vehicles had “potentially” paid VAT without having a right to deduction (see “Bulves” AD v. Bulgaria , no. 3991/03, §§   70-71, 22   January   2009; Business Support Centre v. Bulgaria , no.   6689/03, §   25, 18   March   2010; and Euromak Metal Doo v. the former Yugoslav Republic of Macedonia , no.   68039/14, §   48, 14   June 2018)?   3.     As concerns application no. 6418/16, was the Pinto remedy accessible and effective in respect of complaints concerning the unreasonable length of proceedings before tax courts? If not, was the length of the proceedings before the tax courts compatible with the condition to decide within a “reasonable time”, as provided for by Article 6   §   1 of the Convention? APPENDIX List of applications:   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Representative’s name Location 1. 6418/16 Antonellini v.   Italy 23/01/2016 Giovanni ANTONELLINI 1936 Deceased in 2017 Alfonsine Italian   Heirs Daniele ANTONELLINI 1963 Roberto ANTONELLINI 1966 Ivan BAGLI Rimini 2. 57964/21 Sabbatini v. Italy 09/11/2021 Massimo SABBATINI 1958 Rome Italian Valerio FICARI Rome