Opinion of the Advocate General — ECLI:EU:C:2002:49
Date: 2002-01-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Acts of the institutions — Directives — Implementation by Member States — Need 
to ensure the effective application of directives — Obligations of the national courts 
(EC Treaty, Art. S and Art. 1S9, third para, (now Art. 10 EC and Art. 249, third 
para., EC)) 
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SUMMARY — CASE C-62/00 
2. Acts of the institutions — Directives — Direct effect — Scope — Not limited to 
cases of failure to transpose correctly or of incorrect transposition — Possibility for 
individuals to rely on provisions having direct effect where transposition measures have 
been applied imperfectly 
(EC Treaty, Art. 189, third para, (now Art. 249, third para., EC)) 
3. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Repayment of amounts received in breach of provisions having 
direct effect — Limitation period — Retroactive reduction — Not permissible — 
Incompatibility with principles of effectiveness and protection of legitimate expec­
tations 
1. The Member States' obligation under a 
directive to achieve the result envisaged 
by the directive and their duty under 
Article 5 of the Treaty (now Article 10 
EC) to take all appropriate measures, 
whether general or particular, to ensure 
fulfilment of that obligation are bind­
ing on all the authorities of the 
Member States, including, for matters 
within their jurisdiction, the courts. It 
follows that in applying domestic law 
the national court called upon to inter­
pret that law is required to do so, as far 
as possible, in the light of the wording 
and purpose of the directive, in order to 
achieve the purpose of the directive and 
thereby comply with the third para­
graph of Article 189 of the Treaty 
(now the thi rd pa rag raph of 
Article 249 EC). 
(see para. 24) 
2. Individuals are 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 imple­
mented or has been implemented incor­
rectly, 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. In fact, the adoption of national 
measures correctly implementing a 
directive does not exhaust the effects 
of the directive and a Member State 
remains bound actually to ensure full 
application of the directive even after 
the adoption of those measures. 
(see para. 27) 
3. The principles of effectiveness and of 
the protection of legitimate expec-
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MARKS & SPENCER 
tations preclude national legislation 
retroactively curtailing the period 
within which repayment may be sought 
of sums paid by way of VAT collected 
in breach of provisions with direct 
effect of Sixth Directive 77/388 on the 
harmonisation of the laws of the 
Member States relating to turnover 
taxes, such as those in Article 11A(1) 
of that directive. 
In fact, whilst the principle of effec­
tiveness does not preclude national 
legislation reducing the period within 
which repayment of sums collected in 
breach of Community law may be 
sought it is subject to the condition 
not only that the new limitation period 
is reasonable but also that the new 
legislation includes transitional arrange­
ments 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. Such 
transitional arrangements are necessary 
where the immediate application to 
those claims of a limitation period 
shorter than that which was previously 
in force would have the effect of retro­
actively depriving some individuals of 
their right to repayment, or of allowing 
them too short a period for asserting 
that right. 
Moreover, the principle of the protec­
tion of legitimate expectations pre­
cludes a national legislative amend­
ment which retroactively deprives a 
taxable person of the right enjoyed 
prior to that amendment to obtain 
repayment of taxes collected in breach 
of provisions of the Sixth Directive 
with direct effect. 
(see paras 38, 46-47, operative part) 
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