Britain & Europe
Recovering overpaid tax: The shifting role of the ECJ
Dr Rebecca Williams, University of Oxford
Maximilian Schlote, One Essex Court
Chaired by Monica Bhandari,
Senior Lecturer in Taxation Law, UCL
Tuesday 11th February 2013
from 6 - 7.30pm
The San Giorgio principle is now well established – where tax has been levied contrary to the rules of EU law, the taxpayer has a right to recover the tax paid. This is a consequence of and an adjunct to the rights conferred on individuals by the EU provisions prohibiting those charges in the first place.
What is less clear is the changing role of the ECJ in relation to overpaid tax cases further to this principle. The speakers will consider two aspects of the shifting role of the ECJ.
Rebecca Williams will explore the way in which the ECJ has gradually moved away from one model of reasoning, in which EU law simply gives claimants the right to some kind of action at national level for return of the charges, leaving it to the member state courts to define and operate that cause of action, towards another model of reasoning in which EU law actually defines the cause of action in unjust enrichment. Such a move is to some extent inevitable and even desirable in some respects, but it does entail an important shift of responsibility to the ECJ and recent case law suggests that this is not being properly discharged. Cases such as C-398/09 Lady & Kid, C-310/09 Accor and C-362/12 FII No 3 are of particular concern in this respect and suggest that while national competence is being replaced at EU level, the principled reasoning underlying national causes of action is not.
Maximilian Schlote will consider the way in which the ECJ has increasingly taken control over how the San Giorgio right to restitution of sums levied contrary to EU law is given effect at the national level to the extent that one Advocate General said that “the concept of procedural autonomy does not . . . confer any real autonomy on the Member States.”
A particularly clear illustration of that development is the Court’s jurisprudence on the question whether taxpayers who have paid taxes which are contrary to EU law are entitled to interest as a matter of EU law. The Court moved from a position where that question was left entirely to the member state to a position where, today, it requires that interest be paid. In addition, the Court – as some recent cases show – takes a close interest in how that right to interest is given effect domestically. Ultimately, it is likely that the Court will take a supervisory role over all aspects of the right to interest.
Finally, though the Court’s recognition that interest must be paid as a matter of EU law is to be welcomed, the Court’s case law on interest also highlights some of the problems which arise or might arise as a result of the Court’s increasingly interventionist approach in relation to the San Giorgio right to restitution.
About this seminar series
The relationship between Britain and Europe is a highly contested issue that dominates political and academic debates. The UCL 'Britain and Europe' seminar series examines the relationship between the United Kingdom, and both the European Union and the Council of Europe. The aim of the series is to discuss important policy issues, with a special focus on their legal dimension. Topics to be addressed include the EU referendum, immigration, human rights, competition policy and taxation. This series is in association with the UCL European Institute, UCL Institute for Human Rights and the UCL Centre for Law and Governance in Europe.
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