RECLAIMING MOTION IN THE ADVOCATE GENERAL AGAINST JOHN GUNN AND SONS LTD [2020] ScotCS CSIH_56 (04 September 2020)

RECLAIMING MOTION IN THE ADVOCATE GENERAL AGAINST JOHN GUNN AND SONS LTD [2020] ScotCS CSIH_56 (04 September 2020)

The correct quantum to be recovered is the full amount of Aggregates Levy that would have been paid but for the unlawful exemptions, as required by the Commission decision and EU law. Passing on of the benefit to customers is irrelevant. Domestic limitation periods do not apply to defeat the effectiveness of the recovery obligation. There is no breach of Article 1 Protocol 1 ECHR, as the recovery is lawful, proportionate, and in the public interest. The national court must implement the Commission decision and has no discretion to reduce the amount or apply domestic limitation periods.

Citation
[2020] ScotCS CSIH_56
Parties
Pursuer and Respondent: THE ADVOCATE GENERAL; Defenders and Reclaimers: JOHN GUNN AND SONS LIMITED
Jurisdiction
Scotland
Judgment Date
04 September 2020
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session, Post Trial Judgment
Outcome
Reclaiming motion refused; decree for payment affirmed.
Legal Topics
Unlawful State Aid, Aggregates Levy, EU Commission Recovery Orders, Limitation Periods, Passing on Defence, Article 1 Protocol 1 ECHR, Principle of Equivalence, Principle of Effectiveness
European Union Law Tax Law State Aid Law Human Rights Law Unlawful State Aid Aggregates Levy EU Commission Recovery Orders Limitation Periods +4 more

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Parties

THE ADVOCATE GENERAL

Pursuer and Respondent

JOHN GUNN AND SONS LIMITED

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session, Post Trial Judgment

Legal Issues

  1. 1 What is the correct quantum to be recovered as unlawful state aid: the full amount of Aggregates Levy not paid due to exemptions, or only the actual advantage retained by the defenders?
  2. 2 Does recovery of the full amount breach Article 1 of Protocol 1 ECHR (protection of property)?
  3. 3 Is the pursuer bound by HMRC Policy Brief 11/15 regarding passing on of benefit?

Ratio Decidendi

The correct quantum to be recovered is the full amount of Aggregates Levy that would have been paid but for the unlawful exemptions, as required by the Commission decision and EU law. Passing on of the benefit to customers is irrelevant. Domestic limitation periods do not apply to defeat the effectiveness of the recovery obligation. There is no breach of Article 1 Protocol 1 ECHR, as the recovery is lawful, proportionate, and in the public interest. The national court must implement the Commission decision and has no discretion to reduce the amount or apply domestic limitation periods.

Court Disposition

Reclaiming motion refused; decree for payment affirmed.

Orders

  • Defenders to pay £1,064,869 plus interest to the pursuer as recovery of unlawful state aid (Aggregates Levy) for the period November 2003 to 31 March 2014.