Adviser Q&A: AG’s opinion in FII Test Claimants

13 September 2013

Originally printed in Tax Journal on 13 September 2013

The advocate general’s opinion on Test Claimants in the FII Group Litigation v HMRC (Case C-362/12) was delivered on 5 September. The advocate general’s opinion expressly follows the reasoning of the majority in the Supreme Court. The principle of effectiveness, he considers, is engaged whenever a domestic remedy is used to enforce an EU right. That principle prohibits the reduction in a time limit without both notice and transitional arrangements: ‘a legal remedy cannot offer “effective” protection unless the conditions in accordance with which it may be used and achieve a positive outcome are known in advance’ (para 47). The existence of another remedy would not cure an incompatibility with EU law.

He also concludes, again in keeping with the majority of the Supreme Court, that the principles of legitimate expectation and legal certainty are also offended. The claimants were entitled to expect that their claims would be ruled upon on the basis of what the law was determined to be and not to be deprived of that right by statute.

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