Dear James et al.

I have attempted to read and digest what the CJEU is saying twice now, and
having wrestled with the various UK cases in this field, I really am none
the wiser, and not even better informed. Presumably the CJEU's response to
the recent Franked Investment Income reference by the UKSC will be equally
delphic.

Is it too dramatic to say that what obtains here is a clash of legal
cultures. Precise and defined sequence of questions, carefully drafted (and
haggled over) from English chancery/tax/restitution lawyers, met with a
response saying its all one big question, and we have hinted at the answer
before?

There are bound to be better CJEU watchers than me who can work out the
subtle shifts here - but is the reference to the fact that Littlewoods have
already had more interest (23%) than they have had principal under the
statutory remedy the clearest indication fro the Euro-court that there is
no need for the English courts to bend over backwards to assist the
taxpayers?

Gerard McMeel
University of Bristol

--On 25 July 2012 16:24 +0100 James Lee <j.s.f.lee@BHAM.AC.UK> wrote:

> Dear Colleagues,
>
> While some of us were debating restitutionary issues at the Obligations
> Conference last week, the ECJ handed down its judgment in the Littlewoods
> v HMRC case. The Court reiterates the "in principle" requirement that
> charges levied in breach of EU law must be repaid, and that this
> requirement extends to the loss constituted by the availability of money
> paid prematurely. But the Court points out that the principle of
> equivalence does not require a Member State "to extend its most
> favourable rules to all actions brought in a certain area of law" ([31]).
>
> In answer to the questions referred, the Court concludes (at [34]) that
>
> EU law must be interpreted as requiring that a taxable person who has
> overpaid VAT which was collected by the Member State contrary to the
> requirements of EU VAT legislation has a right to reimbursement of the
> tax collected in breach of EU law and to the payment of interest on the
> amount of the latter. It is for national law to determine, in compliance
> with the principles of effectiveness and equivalence, whether the
> principal sum must bear 'simple interest', 'compound interest' or
> another type of interest.
>
> So, essentially, the Court is leaving it up to the national court to
> determine the issues as a matter of principle. The judgment is not yet
> reported but is available here:
> http://curia.europa.eu/juris/document/document.jsf?text=&docid=125224&pag
> eIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=242814
>
> The remaining, important questions in that case, relating to change of
> position and the "exhaustion of benefits" argument, were not referred to
> the ECJ at this stage in the proceedings.
>
> Best wishes,
>
> James
>
> --
> James Lee
> Lecturer and Director of Careers
> Academic Fellow of the Inner Temple
> Birmingham Law School
> 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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----------------------
Professor Gerard McMeel
Professor of Law
University of Bristol Law School
Wills Memorial Building
Bristol, BS8 1RJ, UK


Gerard.McMeel@bristol.ac.uk

====

This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.