Opinion of the Advocate General — ECLI:EU:C:2013:538
Date: 2013-09-05
Language of the case: English
Subject matter: Right of establishment;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary — Judgment of the Court (Third Chamber), 12 December 2013 EU law — Direct effect — National taxes that are incompatible with EU law — Recovery — Procedures — Application of national law — Limitation period — Curtailment with retroactive effect — Not permissible in the absence of an adequate transitional period —Infringement of the principles of effectiveness, legal certainty and the protection of legitimate expectations (Art. 19(1) TEU) In a situation in which, under national law, taxpayers have a choice between two possible causes of action as regards the recovery of tax levied in breach of EU law, one of which benefits from a longer limitation period, the principles of effectiveness, legal certainty and the protection of legitimate expectations preclude national legislation curtailing that limitation period without notice and retroactively. Whilst national legislation reducing the period within which repayment of sums collected in breach of EU 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 previous 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 retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. Furthermore, in order to serve their purpose of ensuring legal certainty, limitation periods must be fixed in advance. Similarly, the principle of the protection of legitimate expectations precludes a national legislative amendment which retroactively deprives a taxpayer of the right enjoyed prior to that amendment to obtain repayment of taxes collected in breach of EU law. It makes no difference to that conclusion that, at the time when the taxpayer issued its claim, the availability of the cause of action affording the longer limitation period had been recognised only recently by a lower court and was not definitively confirmed by the highest judicial authority until later (see paras 33, 37, 44, 45, 49, 52, operative part 1, 2)