I think this is exactly what the ECJ is saying.

In Metallgesellschaft, the ECJ was asked the specific question whether or not a claim could be denied on the basis that no election was made (see paras 98-107).

The ECJ held that the UK could not reject a claim for payment of the loss of the use of money on the sole ground that an election was not made. Essentially, this is on the basis that it is unreasonable to expect taxpayers to have made a claim when they would have had such a claim rejected.

Second -

support for allowing a restitutionary claim comes from both the ECJ and the AG's opinion. Whilst the ECJ said that it is open for the UK to decide whether to allow a claim for damages or restitution, they did say that in deciding which cause of action to allow, the rules mustn’t make it practically impossible or excessively difficult to exercise Community rights - there is at least an argument (although I haven't quite made up my mind on this yet) that by not allowing a compensation claim due to the limitation period, where there seems to be an option of allowing a claim in unjust enrichment due to a longer limitation period, the exercise of community rights is made excessively difficult (particularly bearing in mind the fact that the ECJ seems to say that retrospective claims should be allowed as described above, yet for the case to come to the ECJ and to get judgment takes a considerable period of time).

Stronger support comes from the AG's opinion - see in particular paras 51-52.

He rejects the submission that a restitutionary claim should be denied on the basis that no election was made.

Best
Monica

On Tue, 17 May 2005 09:02:58 +0100 Robert Stevens wrote:

I don’t think that there is any problem with a claim based upon the wrong in DMG v IRC. There is a tort as a result of the infringement of Art 52 of the Rome Treaty, and it is clear that that is actionable. The problem for the claimants in DMG v IRC was that this would not bring them within the advantageous limitation rule applying to claims for relief from the consequences of a mistake.

For me, however, to get a claim in unjust enrichment off the ground it is necessary to set aside the obligation. As DMG never elected the only way to bring a claim in unjust enrichment is to deem them to have done so. Many jurisdictions adopt a ‘fiction of fulfilment’ where a claimant is wrongfully prevented from fulfilling a condition precedent to liability. So, in the Scottish decision of Mackay v Dick an excavating machine was sold on condition that it could excavate at a specified rate on the defendant’s property. The buyer refused to provide the opportunity for the excavation rate to be tested. The buyer was held liable for the price. The buyer’s wrongful refusal to allow the condition precedent to be fulfilled led the court to deem it to be fulfilled. Similarly in the US case of Foreman v Tauber a man promised his fiancée $20,000 if she married and survived him. Some years after the marriage he shot and killed his wife. His estate was held liable to the wife as it was his deliberate and wrongful act which had prevented fulfilment of the condition.

The doctrine of fictional fulfilment has been rejected in England (Little v. Courage Ltd. (1995) 70 P. & C.R. 469 at p. 474 per Millett L.J). The alternative is to hold the defendant liable in damages for the wrong committed in preventing the fulfilment of the condition eg Bournemouth v Manchester United The Times 22 may 1980. It seems to me that this is what should have been done in DMG v IRC.