Drax Power Ltd and Another, Regina (on The Application of) v Hm Treasury and Others: Admn 10 Feb 2016

The claimant sought to challenge the removal of the exemption for renewable source electricity from the Climate Change Levy.
Held: Review was refused. The court rejected the Respondents’ submission that EU law has no application to the RSE Exemption at all and that therefore the claim must fail because at the national level legitimate expectations cannot be raised against a sovereign Parliament. The amendments to para. 19 of Schedule 6 to the FA 2000 are within the scope of EU law. The EU law principle of legal certainty, and its corollary the protection of legitimate expectations, require that the application of rules of law must be foreseeable by those subject to them, and that a breach of the EU law principle of foreseeability would also be a breach of domestic law on account of the European Communities Act 1972.
The Judge rejected the Claimants’ case that the legal test as to whether there had been a breach of the EU law principles of legal certainty and protection of legitimate expectations in the present case is reducible to the question whether a prudent and circumspect economic operator could have foreseen the possibility of a without notice withdrawal of the RSE Exemption in all the circumstances.
It was not possible to reconcile the various strands of ECJ jurisprudence and the Claimants could not succeed unless they established to his satisfaction that the Respondents promoted a legitimate expectation of there being no withdrawal of the RSE Exemption without a two year time limit (for which the Judge understood the Claimants to be contending), or equivalent fiscal benefit in lieu.
What was required was an express assurance by the Government that any withdrawal of the RSE Exemption would be coupled with the specific two year lead time, or that that might irresistibly be inferred from what Government had said and done such that the giving of such an assurance might be implied; in other words, the giving of something tantamount to an express assurance.
A prudent and circumspect operator should not have inferred that the RSE Exemption would not be removed without a two-year lead time. The Respondents had not created any legitimate expectation on the part of the Claimants to the effect that the RSE Exemption would not be withdrawn without providing a lead time of two-years, or equivalent value.

Jay J
[2016] EWHC 228 (Admin)
European Communities Act 1972
England and Wales
Cited by:
Appeal fromInfinis Energy Holdings Ltd v HM Treasury and Another CA 21-Oct-2016
No breach of EU Legitimate Expectation
The appellant challenged rejection of its request for judicial review of a decision to remove financial support for its creation pf renewable energy.
Held: The appal failed. Althought eth claimant would indeed be severely affected, it had . .

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Utilities, Constitutional, Customs and Excise

Updated: 10 January 2022; Ref: scu.559744