Foglia had a contract with Novello, containing terms that Foglia wouldn’t be responsible for the payment of any charges that were contrary to EC law, and Novello wouldn’t be responsible for taxes payable under EC law.
Foglia, to carry out the contract, had to pay such a charge / tax.
Dispute was before Italian court regarding who should bear the cost of the charge / tax, but both parties agreed that the tax / charge was against EC law.
The ECJ declined to give a ruling, holding that Article 234 only applied where a ruling was needed to settle genuine disputes. This was not the case here, where there was no real dispute as to the illegality of the tax.
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