Commission sides with M&S in Revenue battle

The European Court of Justice (ECJ) will this week hear arguments in a case that will determine the legality of tax laws across the Continent.

Marks & Spencer (M&S), represented by Simon Whitehead of Dorsey & Whitney and Graham Aaronson QC of Pump Court Tax Chambers, will argue tomorrow (1 February) that the retailer should be allowed to offset losses made in Europe through its UK operation.

The company says that the Inland Revenue’s refusal to allow losses to be offset in this manner is a breach of Article 43 of the EU Treaty. It further alleges that UK tax laws are also in breach of the treaty.

The Inland Revenue, instructing Richard Plender QC of 20 Essex Street, is attempting to defend the tax legislation as it currently stands. It is supported by representations from seven other European countries: Finland, France, Germany, Greece, Ireland, the Netherlands and Sweden.

However, the European Commission is supporting M&S’s stand. An additional hope for the company is that European revenue authorities have traditionally fared badly in the ECJ, losing many of the cases brought against them.

The outcome of this case will affect tax law across Europe. If M&S wins, a precedent will be set for several other group litigation tax cases being referred to Europe by UK courts.

The Inland Revenue could have to pay several billion pounds to claimants should the ECJ find the UK in breach of European law, in addition to authorities across the EU having to harmonise legislation.