 At this part the idea is that we compare what is happening or should be happening initially with what has happened or should be happening in the Netherlands. And you did the same exercise for Belgium and Austria in a previous round. So I think the idea is to complete the picture and to answer the questions that were given to us by the people in Tilburg responsible for setting up the course. I was listening to a lot of the discussion and I was thinking there's maybe a very fundamental issue when it comes to recovery and the role of the National Court which you touched on at the end and what is the role of the National Court. In my experience state aid is a highly political issue. When the commission takes a decision it's often an extremely political decision and politically motivated. If you look at the level of judicial protection in state aid or fairness to the beneficiary it's dreadful. It's really awful and many commentators on state aid argue that this is in breach of the Charter of Human Rights and all the rest but it is terrible. And of course you can appeal or to amend a decision to the General Court and eventually up to the Court of Justice but the General Court doesn't go into great detail when it comes to procedural rights. So I personally think from my own experience that when it comes to recovery the National Courts have a very important role to play because if there's anywhere that legal principles sort of have a role it's going to be there. And that some fairness and some sort of procedural certainty should be guaranteed at that level. That's my personal experience from working in the field. I was interested in the question that was raised how do judges deal with the burden of proof. Is that a way of addressing some of the issues like in the media set case that was discussed. And this is a big issue in state aid. What are the rules on burden of proof. And of course you start always with the usual presumption that the person making the claim has to prove the claim. But in state aid law it's not always very clear when the Commission can reverse the burden of proof on the member state. And if there's one area where that is really a big issue at the moment it's in tax law. Because when you are looking at whether a tax measure is an aid or not. Now I don't want you to go into a whole lecture about what is a state aid or not. But from the point of view of the burden of proof the question is is it for the Commission to say this is an exception from a benchmark. And for the Commission to prove that it's an exception. Or is it for the member state to say it's not an exception this is the benchmark. And so who has the burden of proof of saying what is the benchmark. It's a really fundamental issue and hopefully hopefully but we can't always expect too much of the European courts. But hopefully in the World Duty Free case which you might have followed it began life as Banco Santander and it's changed names. But in that case which concerns Spanish legislation giving preferential tax treatment for the writing off of goodwill for foreign acquisitions. You might if you followed it know the general court annouced the Commission decision. And about six months ago the European Court of Justice reinstated that decision and said the Commission was right to find that this special goodwill treatment for foreign investment was a fond state aid. So that case now goes back to the general court and one of the arguments that the Spanish lawyers for the tax for those companies having to pay the tax now are making is that the Court of Justice has failed to appreciate properly how the burden of proof should be allocated. So that it's going to be quite fascinating to see how that works. Really a principled case which will be very important I think for national justice as well. Now it's called World Duty Free. That's lawyer very much but I think my field of study is the comparison between tax systems apart from European tax law and I can assure you that each fiscal system has different rationales from the other. And the fiscal system is the shaping of the fiscal system is related to the history, the culture, the economy of the single state. And I am comforted in this by the econometric study that can fail to identify a perfect taxation. There is no perfect taxation. I deal with taxation. Each country has its own taxation. It's all perfect taxation. It's all preferable taxation. It's very easy to find the benchmark in this field. What is the benchmark? What is the benchmark of the tax of the fiscal system? Each... In Italy, we had one of few cases, the remaining of the ECJ, the friend, the ECJ from National Charter, is the famous case on co-operative companies, co-operative companies. Not the system of the European Commission that expects nothing. It's the tax graphos. As far as I know, in each country in Europe there are some co-operative companies and the fiscal system provides for this sort of company, a special regime. That could be favorable and that could be not favorable. There is a different benchmark in any case. Companies, capital companies, are different from co-operative companies. In each system of the European Union, of each member state. And so, now, the European Commission, some Italian judges, was doubtful that the regime, fiscal regime, granted to the co-operative companies, was stayed at. But, as Leib said, what is the benchmark? Co-operative companies are different from capital companies. And the main problem, and we come back to what Leib said at the very beginning, at the main point, that's a political question. In the end, the decision, what is the benchmark, is a political question. And this political question is up to each state, or is it up to the European Commission. That's the main issue. A big issue we confronted up to now. And then we would like to cover this political issues with some technical rules, technical recognition of the market, the perfect market, perfect competition market, and so on. And I took comfort also, from the recent, as I said, also. So, today, this projection of your information in tax-economic, this is very unacceptable from tax point of view, from tax-economic point of view. A duke of information is saying to a tax-administration, you granted an app and a bandage to submit companies by the police to leave a room. But in the end, I think also, I guess my opinion, in the end, it will be a political movement as well. It's a way to foster taxation, to foster the, you know, the blooping and arming of that taxation. And it is not just my thoughts, it is not just my thoughts, it is what we know about the lawyer and politicians here in Europe. And in the end, so I agree, I agree totally. The main issue is political, is who stays, who is in charge to stay in the benchmark, the benchmark for all European economy, all in the European society, how to say it. That's the main point I think in the state and high-end definition of rules. That's all. But it can come down to the very legal question of who has that burden of proof. And that was, I think, a very important point that you made that goes right through state aid law. It's very uncertain at the moment. There are some presumptions, as I mentioned, but in fact, those presumptions are very easily put aside and then the burden shifts in state aid law. And so that, I think, is a role for national judges to be very alert with how that just happened. So the questionnaire asks us to compare then between the countries quite easily the first question, whether we have a specific state aid recovery procedure for fiscal state aid, or whether it's still based on civil or administrative procedures. So I think for Italy the answer is there's supposed to be a special regime now. Although the question of whether the exclusive competence for the administrative court is constitutional is still subject to debate. I have a question about that when I was listening to your talk. I mean, the law is from 2012. Is there a period of limitation to challenge the constitutionality of that? No, it's not. That can be any time. Anytime it could be challenged before the constitutional court. And it could be challenged just only by sending off from national judge. I mean, in every way we have a control by our constitutional courts that is spread on the national judge. Each judge, when it is done for about the constitutionality of a law, would refer to the European constitutional court, more or less like ECJA. And then the constitutional court would judge and assume. But the fact is that when the constitutional court question out a law, the very constitutional, this declaration, this judgment has a retroactive effect. So it never happened. It never existed. So we experience it right now. We can have a declaration of inconstitution by the constitutional court and it will take effect from 2012. But it is not easy to go to the court because I can imagine someone that should challenge a decision before a tax judge. And this tax judge has to say, yes, I am in conflict. But according to the law I'm not. I'm not in conflict according to the very nature of the sound record. But I'm not according to the law. So I'm doubtful about this law. It's not coherent with our constitution that forbids the free attribution of contract. And so refer to the European constitutional court. That's the way it will go before the constitutional court. So that could well happen? Yes, it could. And could it happen in the other situation where the underneath the different judge, which is the... Yes, it could happen. The question is the following. Yes, it could happen. It's not like that. Because the underneath the different judge is a law in the law for the law. That the judge doesn't know how to do the game because he doesn't know if it is not fair in the constitution. But it is through this process. And with the constitutional court, if they upheld the tax judge, would that be then a general ruling or would it be for each individual case? No, general. They never upheld. So the whole law... Yes, it's all of this. Like the C.J. That's right, almost. No, it does... Did you all hear that question? Sorry. Could you repeat the question? My question was about the constitutional court. In Italy, can adjust the rate of creativity of this decision? Because... Oh, okay. Sometimes it is the... Limit the retroactivity. Sometimes it is when... Yeah, yeah. I was wondering... I mean, she did this before. No. And up to 2015, it never did. In 2015, we experienced the first case in which the court opened the tax matter. In tax matter, because we... We wanted to prepare the constitutionalities of the court, prepare the constitutionality of the taxation. We saw the state and we pay... We found what has been paid by the very beginning of the steps. The court, for financial reasons, needed his... Okay. There is no constitutional court. There is no constitutional court? No. There is no constitutional court? No. There is no possibility to... Challenge. Challenge the tax law through the constitution. Yeah. That's not... In the Netherlands. Yeah. In the Netherlands. Yeah. In the Netherlands. Yeah. In the Netherlands. Yeah. It is not challenging. But it is quite different. Because it is more much... Very like similar to... Very similar to the... Preliminary ruling to the ECJ. How the constitutional court judged. Because the... Ordinary judge, asked us about the constitutional court. I am doubtful about the coherence of the constitution of this internal law. Could you please assure me that this law is coherent with the constitution? It's a sort of cooperation. Not challenging any proper term. But the more... In the Netherlands it's challenging because the constitutional court questioned out the law and so the very term of constitution. And so if our constitutional court did that, as I said, the law is considered as never-existent. There is a retroactive effect of our constitutional... I mentioned one case in 2015. Yeah. For taxation. The only one. The only one where in which the court stated it clearly. Applied it this adjustment clearly. It stated, yes. In theory my presentation should have an effect. From the very beginning. But for financial reasons we are experiencing financial crisis in the public. So I reduce and adjust. And I say that taxation should be not... constitutional tax shall not be repaid. But this sentence, this judgment will take place by now onward. Prospecting overall. Yeah. So I think when we look at the Netherlands of course we don't have yet a specific system. So tax for fiscal state aid recovery could be based on any of the three procedures we discussed. Civil administrative, all through the task force obviously. So the next question is if we have a specific procedure, when was it adopted? So that's easy for Italy 2012 and we're still waiting in the Netherlands. So that question can deal with very quickly. The third question was why do we... why do certain countries in Italy have a specific recovery procedure? And they asked what were the problems arising from the application of civil or administrative law that led to the adoption of the procedure. And I think for both countries what's really interesting is it's been the pressure from the European Commission to resolve the situation. Which I think in the Netherlands as I explained this flouring case resulted in an infringement procedure which was then withdrawn because the Dutch government promised to introduce an act on recovery in 2008 and in the Italian case the Christmas present in 2012 came also as a result of commission pressure. Although we don't seem to have had a clear case there it's just linked to a general dissatisfaction on the rate of recovery. And if I could quickly back to Belgium and Austria there's no general framework for recovery in those countries either. So Italy is really an exception. Yes, it's an exception. The experience from Italy is an exception but I would like to... I'm not aware of... I was very good to communicate to you that there is a mismatch in Italy with the intention of the Christmas present and the effective implementation of this general procedure. Because up to now there are lots of unsettled issues related to the state-of-the-art gross news there is a constitutional doubt huge constitutional doubt. So one lesson that in my most opinion would be learned not to go so hard as Italy did but a general procedure to recovery is not so easy to implement to introduce in general in our national law. There are no backdoor... backdoors there is no way to go faster and so we in Italy are devoted to the Roman law to the private law and we think that when you are dealing with the payment of credit debt you have to be very carefully to establish the obligation of return, obligation of how to deal separately in this kind of order. And in Italy unfortunately we was thinking that just referring to the European rules we solved the problem that was not the case in Italy though we instead of solving the problem we introduced much more issues. So up to now the lesson we learned is a good thing, a general procedure but very well said very well sketched out from the... and I think it's very important the big of the each single each single country. That's the... Just a question that you mentioned that this law generalizing adopted in 2012 under pressure of the commission or the EU institution no we are quite 5 years later with all the certainties are you not again under pressure of the EU institution to verify the commission? No, no we are not we are not under pressure please not as far as I can but I guess that's the purpose of the EU institution to get an effective instrument that's just a bit more... Yeah, you are right but I have to add that in from 2012 we started to a very strict approach at the normal level of ranking we are very keen we are very careful and we notify we are also in the states of the EU so this competition is plenty of information from the EU that from 2012 in the same way in the same act we change those to our attitude to the state act and so we notify also and so they are from the European Commission they are focused on politics because we are going to be to act to act in an application of state act okay so looking again at the questionnaire one of the questions the next question was whether particular problems that had to be addressed because separate procedures were needed and we've seen from the Netherlands the two primary issues of the limitation period and the interest trying to find an effective procedure to recover interest according to how the commission calculates it compounded interest and as Professor D'Angelo explained according to Roman law you can't do that under Italian civil law and in in Dutch law the reason was that there was no written provision to base that calculation upon with regard to the limitation periods we didn't spend a lot of time talking about that but that is a problem of course in fiscal state aid because the 10 year period applied in a commission recovery decision is usually much longer than any national limitation period whether it's the Netherlands or Italy or Belgium or Austria I think that's been a common problem and we will have to see whether in some of the tax ruling cases this will be challenged the commission going back 10 years if that was seen as infringing legal rights at national level now we could mention this famous case here the Taricco case if you want you're not exhausted so we had a correspondence beforehand about a particular Italian case where the fact that the national limitation period is much shorter than European law has become a big issue this is not a state aid case it's a VAT case it concerns VAT fraud it's called Taricco and in this case the people accused of the fraud claimed well they no longer had to repay the VAT that had been defrauded plus the penalties because of the limitation yeah the Taricco claimed that he has no longer to repay the VAT and on the other side he has no longer to be prosecuted for tax fraud because anyway as I think quite short of 13 as in the Netherlands Belgium Austria the prosecution for crime is barred it's not permitted in time it cannot be started in whatever manner at any time so anyway we have time limitation we call it prescription prescription we have time limitation very short and the usage and the fact that it was very difficult that one person one VAT fraudster should be is punished for VAT fraud due to this ammunition for the prosecution of VAT fraud the fact that it was very difficult to punish the VAT fraudster and the ECJ stated that this national nation spending a too short description 3 years 3 years 3 years the fact is disproportionate because that's not ground did not grant the correct collection of VAT because the crime sanction was symbolic sanction was the choice sanction and not effective sanctions so ECJ stated that too short recommendation to approve we can link our program to state that too short implementation period too short time barring for the proper implementation of European law could be deemed as not proportionate so not granting effectiveness of national measures so when I was writing maybe we can discuss Taricco's case Taricco it is crime matter from the Italian tradition there is no link there is no connection the problem is the same too short time limitation period for the correct implementation of the European law could be deemed as disproportionate and so the ECJ stated this and perhaps it is coherent in this way with the 10 years limitation 10 years limitation perhaps this proportionate surprise is too long but the ECJ is stating too short term to recover it could be disproportionate because it does not as I said it does not grant proper and effective implementation of the European, generally speaking the European law in the end Taricco is known for talking about in the end Taricco is a modern European saga so we have lots of we are sending questions now for the ECJ because for all reasons for constitutional limitation our constitutional court referred to the ECJ that the ECJ cannot interfere in the criminal primary methods and so it cannot state that the time limitation of prosecution is proportionate or not because it is in the jurisdiction of people it does not be conferred to the European Union we have a supreme principle of reservation to the national law of stating what is this description of this time limitation that these are all sorts of questions I have a question referred to the the ECJ but these questions are involved to the entire part of Italy to the European Union now because this one this is the first case as far as I know in which our constitutional court entered the option to dismiss an ECJ that's the first as far as I know as far as I know neither am I but I thought it was an interesting case because it showed the clash between the people cultures we start off always in European law and European state aid law too with the presumption that national procedural rules are autonomous they are not harmonized but then we get to this limitation period which is 10 years and through state aid law we are balancing a certain limitation period and one of the arguments from Tariqo was this idea of retroactivity when Mr Tariqo was found guilty of the fraud he thought that if the three year period had elapsed that was it, he was going free but he got a shock because he found out that the normal legal norm was being set aside and it was being extended then to six years I think in the BAT case so he claimed also that that interfered that retroactive application interfered with his human rights and this also raises a dimension of to what extent can the European courts then overturn rights guaranteed by the European Convention on Human Rights and the European Charter and those I think that angle could also be interesting in some of the tax ruling cases because maybe you have some ideas as well if you think that a tax assessment was valid and also that it can't be looked at again after a certain number of years and then you find out you were completely wrong and it's going to be reassessed but it's going to go back in time for ten years when nationally I think for fiscal tax it's five years then you may be confronted with a very different financial situation and the difference with Tariqo of course is that Tariqo we're talking about criminal penalties but they were administrative penalties if I'm right he wasn't going to go to prison it wasn't a crime it was a crime they were penalties but it was a penalty it wasn't going to go to you it's not a problem we have another laughing at a police field and crime we have that in the Netherlands probably in Belgium I had some kind of a final question and to all of you as a kind of a jury we've heard about the Italian special legislation and you have heard today that we will get it in the Netherlands maybe it looks like it and it's been signed a bit in parliament in Belgium you don't have it in Austria you don't have it looking at the Italian experience if you were to go and advise governments do you think it's a good thing