Marks and Spencer Plc v Customs and Excise: HL 28 Jul 2005

The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte claire, and a reference was made.
Nichoolls of Birkenhead, Steyn, Hoffmann, Walker of Guestingthorpe LL
[2005] UKHL 53, [2005] STC 1254
Bailii, House of Lords
Value Added Tax Act 1994 80
England and Wales
CitedBP Supergas Anonimos Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion v Greece ECJ 6-Jul-1995
Europa Under the procedure for a preliminary ruling provided for in Article 177 of the Treaty it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for . .
CitedIdeal tourisme SA v Belgian State ECJ 13-Jul-2000
Europa In the present state of harmonisation of the laws of the Member States relating to the common system of value added tax, the Community principle of equal treatment does not preclude legislation of a Member . .
CitedArgos Distributors v Commissioners of Customs and Excise ECJ 24-Oct-1996
VAT was payable on the value of a discount voucher only, and not on the full price of the goods. ‘According to the court’s settled case law, the taxable amount for the supply of goods or services is represented by the consideration actually received . .
CitedJust I/S v Danish Ministry For Fiscal Affairs ECJ 27-Feb-1980
ECJ Whilst the treaty does not exclude, in principle, a difference in the taxation of various alcoholic products, such a distinction may not be used for the purposes of tax discrimination or in such a manner as . .
Appeal fromMarks and Spencer Plc v Commissioners of Customs and Excise (No 5); Commissioners of Customs and Excise v University of Sussex CA 21-Oct-2003
The company sought to reclaim overpaid VAT.
Held: If the UK government had failed properly to implement the directive, then a person affected had the right to claim the benefit of direct enforceability. However, the directive itself was . .
CitedWeber’s Wine World Handels-GmbH and Others v Abgabenberufungskommission Wien ECJ 2-Oct-2003
Europa Indirect taxation – Duty on sales of alcoholic beverages – Incompatibility with Community law – Recovery of duty. . .
CitedBecker v Finanzamt Muenster-Innenstadt ECJ 19-Jan-1982
ECJ It would be incompatible with the binding effect which article 189 of the EEC treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by it being relied upon by persons . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
CitedKampelmann and others v Landschaftsverband Westfalen-Lippe and others ECJ 4-Dec-1997
LMA The case concerned Directive 91/533 on employers’ obligations to inform employees of the conditions applicable to their contract or employment relationship. An ’emanation of state’ was understood to be . .
CitedCotter and others v Minister for Social Welfare ECJ 13-Mar-1991
Europa Article 4(1) of Council Directive 79/7/EEC, on the prohibition of all discrimination on grounds of sex in matters of social security, must be interpreted as meaning that if, after the expiry of the period . .
CitedItaly v Council ECJ 14-Mar-2002
Europa The limit-date of 1 August for fixing the intervention price and derived intervention prices in Article 3(4) and (5) of Regulation No 1785/81 on the common organisation of the markets in the sugar sector . .
CitedCommission v France C-481/98 ECJ 3-May-2001
Europa By introducing and maintaining in force legislation on Value Added Tax under which medicinal products reimbursable under the social security system are taxed at the reduced rate of 2.1% whereas other . .
CitedGoldsmiths (Jewellers) v Commissioners of Customs and Excise ECJ 3-Jul-1997
ECJ The derogation provided for in the second subparagraph of Article 11C(1) of the Sixth Directive 77/388 does not authorize a Member State which enacts provisions for the refund of VAT in the case of total or . .

Cited by:
Decision to refer to ECJMarks and Spencer Plc v Customs and Excise HL 4-Feb-2009
The taxpayer requested refund of VAT overpaid on chocolate covered cakes. The CandE resisted saying that the money had been substantially already paid by its customers. The case had been referred twice to the ECJ, who answered that the maintenance . .
Decision to referMarks and Spencer Plc v Customs and Excise HL 12-Jul-2006
Question referred to ECJ. Five questions were referred. . .
Decision to referMarks and Spencer v Her Majesty’s Commissioners of Customs and Excise ECJ 13-Dec-2007
ECJ Value added tax – Derogation under Article 28 of Directive 77/388 – Principle of neutrality Principle of equal treatment Right to obtain a refund of the tax in the event of incorrect interpretation of . .
Decision to referMarks and Spencer v Her Majesty’s Commissioners of Customs and Excise ECJ 10-Apr-2008
(Third Chamber of the Court of Justice) Taxation Sixth VAT Directive Exemption with refund of tax paid at the preceding stage Erroneous taxation at the standard rate Right to zero rate Entitlement to refund Direct effect General principles of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.229069