Case C-309/06: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise
Date: 2006-10-28
Institutions: Court of Justice
Subjects: VAT, delivery, equal treatment, interpretation of the law, provision of services, tax exemption, tax rebate, tax system

C 261/10

EN

Official Journal of the European Union

28.10.2006

3. Does article 4 of the Directive, requiring member states to
adopt national legislation which includes serious negligence
as a standard of liability and which penalises discharges in
territorial sea, breach the right of innocent passage recog-
nised in the United Nations Convention on the Law of the
Sea, and if so, is article 4 invalid to that extent?

4. Does the use of the phrase ‘serious negligence’ in article 4 of
the Directive infringe the principle of legal certainty, and if
so, is article 4 invalid to that extent?

(1) Directive 2005/35/EC of

the
Council of 7 September 2005 on ship-source pollution and on the
introduction of penalties for infringements (OJ L 255, p. 11)

the European Parliament and of

specified supplies but has mistakenly interpreted its
domestic legislation with the consequence that certain
supplies benefiting from exemption with refund of input tax
under its domestic legislation have been subject to tax at the
standard rate, do the general principles of Community law,
including fiscal neutrality, apply so as to give a trader who
made such supplies a right to recover the sums mistakenly
charged in respect of them?

3. If the answer to Question 1 or Question 2 is in the affirma-
tive, do the Community law principles of equal treatment
and fiscal neutrality in principle apply with the result that
they would be infringed if the trader in question is not
repaid the entire amount mistakenly charged on the supplies
made by him in circumstances where:

a) the trader would be unjustly enriched by repayment to

him of the entire amount;

Reference for a preliminary ruling from House of Lords
(United Kingdom) made on 17 July 2006 — Marks &
Spencer plc v Her Majesty's Commissioners of Customs
and Excise

b) domestic legislation provides that overpaid tax cannot be
repaid to the extent that repayment would lead to unjust
enrichment of the trader; but

(Case C-309/06)

(2006/C 261/18)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Marks & Spencer plc

Defendant: Her Majesty's Commissioners of Customs and Excise

Questions referred

1. Where, under Article 28(2)(a) of the Sixth VAT Directive (1)
(both before and after its amendment in 1992 by Directive
92/77), a Member State has maintained in its domestic VAT
legislation an exemption with refund of input tax in respect
of certain specified supplies, does a trader making such
supplies have a directly enforceable Community law right to
be taxed at a zero rate?

2. If the answer to Question 1 is in the negative, where, under
Article 28(2)(a) of the Sixth VAT Directive (both before and
after its amendment in 1992 by Directive 92/77), a Member
State has maintained in its domestic VAT legislation an
exemption with refund of input tax in respect of certain

c) domestic legislation makes no provision similar to that
referred to in (ii) in the case of claims by ‘repayment
traders’? (A ‘repayment trader’ is a taxable person who,
in a given prescribed accounting period, makes no
payment of VAT to the competent national authorities
but receives a payment
in that
period, the amount of VAT that he is entitled to deduct
exceeds the amount of VAT due in respect of supplies
made by him.)

from them because,

4 Is the answer to Question 3 affected by whether or not
there is evidence that the difference of treatment between
traders making claims for the repayment of overpaid output
tax and traders making claims for additional amounts by
way of input tax deduction (resulting from the over declara-
tion of output tax) has, or has not, caused any financial loss
or disadvantage to the former and, if so, how?

5 If, in the situation described in Question 3, the Community
law principles of equal treatment and fiscal neutrality apply
and would otherwise be infringed, does Community law
require or permit a court to remedy the difference of treat-
ment by upholding a trader's claim to a repayment of over-
paid tax in such a way as to enrich him unjustly or require
or permit a court to grant some other remedy (and, if so,
which)?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ L 145, p. 1)