It just is not the ECJ's role in a case like this to set out detailed rules for member states. For myself I can only see two logical possibilities as a result of a tax being inconsistent with European Union law, options that are mutually incompatible one with another. One option is that as a result of the violation of EU law, legislation is (to the extent of inconsistency) a nullity under the domestic law of the relevant member state. That would be the position in some federal state structures (eg Canada). As a result a claim for restitution for the invalidly levied tax would follow as a matter of course. Member states have a great deal of leeway in constructing the relevant incidental rules on limitation and interest as they see fit under EU law, and that is what the UK legislature has done. or The tax is valid under the domestic law of the member state, and is therefore wrongful under EU law, giving rise to a claim for damages for a eurotort under Factortame, or other adequate remedy set out by legislation. Again member states have a great deal of leeway in constructing the details of such a claim. If the tax is wrongful it isn't a nullity. If the tax is a nullity (to the extent required by EU law) it isn't wrongful. Which is correct is then up to the member state. The UK law position that it is both wrongful and a nullity makes no sense at all to me, but that is of no concern to the ECJ which is just concerned that there be an adequate remedy of some kind. My understanding had always been that we did not live in a Federal State of Europe and that the correct analysis under UK constitutional law was that legislation in violation of EU law was wrongful (and hence not a nullity). See Factortame. Apparently not. Almost the only court I would not criticise at all in this sorry story is the ECJ, which is just doing its job. It is not its role to give more detailed answers than this on these matters. The same would be true on the change of position defence etc. It is for the UK courts to rule on these basic UK constitutional issues, but instead they have treated the claims for restitution as a set of formulas, with a series of boxes to tick, missing the basic justification for the claim in the first place. Rob
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