By Judgment No. 834/2026, published on 18 January 2026, the Eleventh Civil Division of the Tribunal of first instance of Rome ordered the Italian Customs and Monopolies Agency (Agenzia delle Dogane e dei Monopoli – ADM), which had been joined to the proceedings by Enel Energia, to make a direct refund to the end user of amounts paid by way of the provincial surcharge on electricity excise duty.
The decision concerns an area of law that has been significantly shaped by recent developments in both European and Italian case law. First, the Court of Justice of the European Union, in its preliminary ruling of 11 April 2024 (Case C-316/2022), excluded the possibility of disapplying the domestic legislation establishing the surcharge in disputes between private parties, on the grounds that the relevant EU directive lacked horizontal direct effect.
Following that ruling, the Italian Supreme Court (beginning with Judgment No. 21154/2024) recognised the viability of a direct claim by users against the tax authorities. Subsequently, the Italian Constitutional Court, in Judgment No. 43/2025, declared the tax provision unconstitutional, thereby rendering the user’s restitution claim against the supplier once again available, although solely on the basis of that declaration of unconstitutionality (see Supreme Court, Third Civil Division, Judgment No. 16992/2025).
Against this evolving legal background, Enel Energia argued that the party naturally responsible for making the refund was the tax authority itself, which had ultimately received the proceeds of the tax later declared unconstitutional, whereas the supplier had merely collected and remitted those amounts in compliance with the legislation then in force.
The Court accepted this argument, holding that the joinder of the Customs and Monopolies Agency was an appropriate procedural mechanism for resolving the dispute in a single set of proceedings, thereby avoiding duplicate litigation, first between the user and the supplier and subsequently between the supplier and the tax authority.