• In the case of Case C-62/00 Marks Spencer PLC v Commissioners of Customs Excise [2002] ECR-I 6325, it was established that an individual can rely upon direct effect of EU law where the national measure in place is (in a manner) incompatible with the regulation, despite being implemented correctly.

Facts of Case C-62/00 Marks Spencer PLC v Commissioners of Customs Excise [2002] ECR-I 6325

  • M&S sold gift vouchers at a price less than the face value
  • These vouchers were then sold on or given away to third parties who were able to redeem them by giving them back to M&S to then receive goods equivalent to the face value of their voucher
  • M&S told Commissioners of Customs in their view it should account for VAT on the amounts received for the vouchers, not the face value
  • Commissioners ruled M&S would be subject of VAT on the face value rather than the price they were sold
  • However, following the judgment of Case C-288/94 Argos Distributors [1996], the regime applied by Commissioners appeared to be incorrect; thus, M&S submitted a claim for the repayment of VAT
  • The Commissioners repaid the part of the VAT not affected by the 3-year limitation period, and M&S requested an internal review
  • The Court of Appeal, albeit rejecting M&S’ appeal for repayment, referred to the CJEU the preliminary question of whether the national measure was compatible with Community law

Issues in Case C-62/00 Marks Spencer PLC v Commissioners of Customs Excise [2002] ECR-I 6325

  • Was the Finance Act 1997, which deprived individuals from repayment of VAT sums to a limited period, compatible with the principle of effectiveness in relation to Directive 77/388?
  • If not, would the individual be able to apply the Directive with direct effect to resolve th issue of incompatibility in manner?

Held by the European Court of Justice

  • The UK Act was incompatible with the principles of effectiveness and of protection of legitimate expectations, this curtailed period was contrary to Community law

Findings of the Court

Implementation of Community law requires Member States to “to achieve the result envisaged by the directive” and must, “under Article 5 of the EC Treaty (now Article 10 EC) … take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts” [24]

However, a Member State’s duty exists beyond correct implementation, they must also ensure that the objective of the EU measure is achieved by:

  • “full application of the directive even after the adoption of those measures. Individuals are therefore entitled to rely before national courts, against the State, on the provisions of a directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been implemented or has been implemented incorrectly, but also where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it” [27]

Principle of effectiveness:

To avoid making the exercising of an individual’s rights significantly difficult or virtually impossible, “in the interests of legal certainty, which protects both the taxpayer and the administration, it is compatible with Community law to lay down reasonable time-limits for bringing proceedings”. [35]

  • Generally, three years running “from the date of the contested payment appears to be reasonable”. [35]

However, when applying this to the present facts, the CJEU found it to be incompatible due to the lack of transitional arrangements:

  • “Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation.” [38]
  • Depriving individuals the possibility to exercise a right, in respect of VAT, previously enjoyed is held to be incompatible with the effectiveness principle [40]

Principle of the protection of legitimate expectations

  • “a legislative amendment retroactively depriving a taxable person of a right to deduction he has derived from the Sixth Directive is incompatible with the principle of the protection of legitimate expectations” [45]
  • In the current case, retroactively deprivation of a right enjoyed previously is in breach of this principle [46]

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