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