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Reports of Cases Report s of C ases OPINION OF ADVOCATE GENERAL WATHELET 1 delivered on 5 September 2013 Case C-362/12 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty’s Revenue and Customs (Request for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom)) (Recovery of national taxes which are contrary to European Union law — Limitation period for instituting proceedings — National legislation curtailing the limitation period with retroactive effect and without advance notice) I – Introduction 1. This request for a preliminary ruling is the third such request made to the Court in the context of a group action brought before the United Kingdom courts by the Test Claimants in the Franked Investment Income Group Litigation (‘the Test Claimants’) – companies belonging to the British American Tobacco group and the Aegis group – concerning the tax treatment of dividends paid to parent companies established in the United Kingdom by subsidiaries established abroad. 2. The first of the two earlier requests was made to the Court on 30 October 2004 by the High Court of Justice (England & Wales), Chancery Division (United Kingdom), and concerned the compatibility of 2 the tax treatment of those dividends with the fundamental freedoms entrenched in the FEU Treaty. Following the first ruling made by the Court in the context of this litigation, on 12 December 2006, the national court decided, by judgment of 27 November 2008, to refer questions seeking clarification 3 as to the proper interpretation of that ruling. 3. The Test Claimants lodged an appeal against the judgment of 27 November 2008 before the Court 4 of Appeal (England & Wales), which, by judgment of 23 February 2010, confirmed the decision of the High Court of Justice (England & Wales), Chancery Division, to make a second request to the Court for a preliminary ruling. The second order for reference was made on 21 January 2011 and the Court 5 replied by its ruling of 13 November 2012. 1 — Original language: French. 2 — Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753. 3 — Test Claimants Franked Investment Income Group Litigation v The Commissioners for Her Majesty’s Revenue & Customs [2008] EWHC 2893 (Ch), [2009] STC 254. 4 — Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue and Another [2010] EWCA Civ 103. 5 — Case C-35/11 Test Claimants in the FII Group Litigation [2012] ECR. EN ECLI:EU:C:2013:538 1 OPINION OF MR WATHELET – CASE C-362/12 TEST CLAIMANTS IN THE FRANKED INVESTMENT INCOME GROUP LITIGATION 4. Meanwhile, the Test Claimants had brought an appeal against the above judgment of the Court of Appeal (England & Wales) before the Supreme Court of the United Kingdom (‘the Supreme Court’). The appeal focused on the issue of the causes of action available to taxpayers for the recovery of sums paid, but not due, in connection with taxes declared incompatible with the fundamental freedoms entrenched in the Treaty and, specifically, on the issue of the retroactive amendment, introduced by section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007, of the limitation periods for those causes of action. The Test Claimants challenged the finding made by the Court of Appeal (England & Wales) that their claims for recovery of the tax – levied in breach of EU law and accordingly paid, but not due, to the United Kingdom tax authorities – were time-barred. 5. By judgment of 23 May 2012, the Supreme Court was unanimous in finding that section 107 of the Finance Act 2007 was incompatible with EU law, but was divided on the issue of the compatibility with EU law of the retroactive amendment, introduced without notice by section 320 of the Finance Act 2004, to the applicable limitation period. Five Law Lords (Lord Hope, Lord Walker, Lord Clarke, Lord Dyson and Lord Reed) found that amendment to be contrary to EU law, but two of their fellow peers 6 (Lord Brown and Lord Sumption) considered it to be compatible with EU law. The Supreme Court therefore decided to stay the proceedings and to make the present request for a preliminary ruling. II – Legal context A – EU law 6. The second subparagraph of Article 19(1) TEU provides: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ 7. The present case also concerns the application of the principles of effectiveness, legal certainty and 7 the protection of legitimate expectations as they arise out of the Court’s case-law. B – National law 8. On 8 September 2003, Aegis – a multinational group active in the field of digital media and communications, whose holding company is established in the United Kingdom – introduced a claim before the English courts for reimbursement of taxes which the Court of Justice had declared incompatible with the fundamental freedoms entrenched in the Treaty. 9. In its judgment in Test Claimants FII (No 3), the Supreme Court decided by a majority that, when the companies belonging to the Aegis group introduced their claim on 8 September 2003, two causes of action were available at ‘common law’ to claimants seeking restitution of corporation tax levied in 8 breach of EU law. 6 — Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue and Another [2012] UKSC 19 (‘Test Claimants FII (No 3)’). 7 — See, to that effect, Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraphs 34 to 47. 8 — The situation changed in April 2010 with the introduction by the Finance Act 2009 of a new cause of action for the recovery of tax paid but not due, with a limitation period of four years. That new cause of action has replaced the Woolwich and Kleinwort Benson causes of action in the field of restitution of tax paid but not due. 2 ECLI:EU:C:2013:538 OPINION OF MR WATHELET – CASE C-362/12 TEST CLAIMANTS IN THE FRANKED INVESTMENT INCOME GROUP LITIGATION 10. The first cause of action had been recognised in a purely domestic context, long before the current litigation commenced, by the House of Lords in its decision of 20 July 1992 in Woolwich (‘the 9 Woolwich cause of action’). On the basis of the Woolwich cause of action, it was possible to recover ‘all sums paid to a public authority in response to (and sufficiently causally connected with) an 10 apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due’. 11. Under section 5 of the Limitation Act 1980, Woolwich claims are time-barred after six years have elapsed from the date on which the cause of action arose, which is normally the date on which the tax was paid. 12. The second cause of action permitted the restitution of taxes paid under mistake either of fact or of law on the part of the taxpayer. That cause of action was recognised for the first time in the 11 judgment handed down by the House of Lords on 29 October 1998 in Kleinwort Benson, which overruled longstanding authority to the effect that money paid under a mistake of law was not recoverable (‘the Kleinwort Benson cause of action’). 12 13. In the judgment of 18 July 2003, handed down in Deutsche Morgan Grenfell (‘DMG’) by Park J. of the High Court of Justice (England & Wales), Chancery Division, it was held for the first time that the Kleinwort Benson remedy could be used to obtain restitution of tax paid under a mistake of law. 14. Accordingly, Park J. held that the limitation period applicable to that cause of action was the more favourable period laid down in section 32(1)(c) of the Limitation Act 1980, under which: ‘… where in the case of any action for which a period of limitation is prescribed by this Act, [and where] – … (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the … mistake … or could with reasonable diligence have discovered it’. 15. On 4 February 2005, the Court of Appeal (England & Wales) reversed Park J.’s judgment, but the House of Lords reinstated it on 25 October 2006, confirming that taxpayers seeking restitution of tax paid, but not due, had available to them both the Woolwich and the Kleinwort Benson causes of action. 16. One of the differences between the two causes of action lay in the applicable limitation period: the six-year limitation period for the purposes of the Woolwich cause of action started to run as soon as the tax in question was paid, whereas the six-year limitation period for the purposes of the Kleinwort Benson cause of action did not start to run until the claimant had discovered, or should have discovered, his mistake. 17. In the meantime, Parliament had adopted the Finance Act 2004, section 320(1) of which provides: ‘Section 32(1)(c) of the Limitation Act 1980 … (extended period for bringing an action in case of mistake) does not apply in relation to a mistake of law relating to a taxation matter under the care and management of the Commissioners of Inland Revenue. 9 — Woolwich Equitable Building Society v Inland Revenue Commrs [1993] AC 70 (HL). 10 — Lord Walker’s speech in Test Claimants FII (No 3), paragraph 79. 11 — Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (HL). 12 — Deutsche Morgan Grenfell plc v Inland Revenue Commrs [2003] EWHC 1779 (Ch), [2003] 4 All ER 645.
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