Dear Colleagues,

The European Court of Justice has today given judgment in the reference in FII, on recovery of tax overpaid under a mistake of law/Woolwich. It is a relatively brisk judgment, reaching broadly the same (in my view correct) conclusion as the majority in the Supreme Court, that s 320 of the Finance Act 2004, as enacted, is incompatible with European law:
http://curia.europa.eu/juris/document/document_print.jsf;jsessionid=9ea7d0f130d52e0eb45e99404fdb83758ccbf55f4a78.e34KaxiLc3eQc40LaxqMbN4OaxaPe0?doclang=EN&text=&pageIndex=0&part=1&mode=DOC&docid=145536&occ=first&dir=&cid=371754
The key section is from [30] onwards. The Court necessarily rejects the dissenting analysis of Lord Sumption in the Supreme Court. At [49], the Court concludes that

"the answer to the question referred is that in a situation in which, under national law, taxpayers have a choice between two possible causes of action as regards the recovery of tax levied in breach of EU law, one of which benefits from a longer limitation period, the principles of effectiveness, legal certainty and the protection of legitimate expectations preclude national legislation curtailing that limitation period without notice and retroactively."

This should mean that the rest of the litigation, and the various interesting outstanding issues, including but not limited to change of position, can proceed.

Best wishes,
James
(Apologies for cross-posting)

--
James Lee
Senior Lecturer and Director of Admissions
Birmingham Law School, room 235
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>


Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx

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