Para 96 of Metallgesellschaft states:

That resident subsidiaries and their non-resident parent companies should have an effective legal remedy in order to obtain reimbursement or reparation of the financial loss which they have sustained and from which the authorities of the Member State concerned have benefited as a result of the advance payment of tax by the subsidiaries.

From that, I don't think that the ECJ thought that the UK would only be compliant if a claim for restitution, as opposed to a claim for compensation for loss based upon a tort, was not available. Indeed, the only reason why the claimant wanted such a claim in this case was in order to rely upon the very generous limitation period applicable to such claims. The Advocat General had thought that the claim was 'more naturally' a claim for restitution but the ECJ do not endorse him in that.

Looking at the case again, I think the Revenue lost it at the very early stage of the appeal when the parties agreed the issues for the court to resolve. I think this agreed statement goes in with the parties' agreed statement of facts. It is because most of the members of the court stuck rigidly to the list of issues agreed by the parties that it is quite difficult to work out what some of them thought on the issues which should have been decisive. Lords Hoffmann (unsurprisingly) and Scott can be forgiven on this score.

Still, if they had given us all the answers what would we have left to argue about?

Robert Stevens