Reclaiming Motion In The Advocate General Against John Gunn And Sons Limited
| Jurisdiction | Scotland |
| Judge | Lord Doherty,Lord Woolman,Lord President |
| Neutral Citation | [2020] CSIH 56 |
| Docket Number | A152/16 |
| Date | 04 September 2020 |
| Court | Court of Session |
| Published date | 04 September 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 56
A152/16
Lord President
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion
in the cause
THE ADVOCATE GENERAL
Pursuer and Respondent
against
JOHN GUNN AND SONS LIMITED
Defenders and Reclaimers
Pursuer and Respondent: Maciver; Office of the Advocate General
Defenders and Reclaimers: Simpson QC; Harper Macleod LLP
4 September 2020
Introduction
[1] In this reclaiming motion (appeal), the defenders seek the recall of the Lord
Ordinary’s interlocutor of 13 April 2018 which granted decree de plano for payment by the
defenders to the pursuer of £1,064,869 plus interest. The Lord Ordinary held that this was
the amount to be recovered in respect of Aggregates Levy which the defenders had not paid
2
as a result of two statutory exemptions. The European Commission ultimately decided that
the exemptions amounted to unlawful state aid and were thus in breach of article 107(1) of
the Treaty on the Functioning of the European Union. The Commission ordered the United
Kingdom to recover the aid from the “beneficiaries”.
[2] What is the consequence of the Commission’s decision? The competing contentions
can be shortly stated. The pursuer maintains that the defenders must pay the amount of
Levy which they would otherwise have paid to HM Revenue and Customs but for the
unlawful exemptions. The defenders argue that they only have to pay the amount which
represented the actual advantage which the exemption had given to them. This sum would
be nil, standing the defenders’ averments that they had passed on the benefit of the
exemptions to their customers.
[3] There are other questions. First, is the pursuer, by seeking the larger amount, in
breach of Article 1 of Protocol 1 of the European Convention (protection of property)?
Secondly, is the pursuer acting unlawfully by breaching HMRC’s Policy Brief 11 (2015):
Reinstatement of certain Aggregates Levy exemptions, if it were applied mutatis mutandis to the
defenders’ situation? Thirdly, is the domestic time limit of four years applicable under the
EU principle of equivalence?
Background
[4] Aggregates Levy is a tax which applies to the commercial exploitation of rock, sand
or gravel. It was imposed by Part II of the Finance Act 2001, partly as an environmental
measure to discourage quarrying in favour of using recycled materials. It was charged on
the first exploiter, initially at a rate of £1.60, rising to £1.95 and then £2.00 per tonne.
Liability arises when the aggregate is, inter alia, removed from site, sold and used for
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