Greaney Solar Products Ltd v The Revenue Commissioners and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Conleth Bradley |
| Judgment Date | 01 February 2024 |
| Neutral Citation | [2024] IEHC 119 |
| Court | High Court |
| Docket Number | Record No. 2018/5296P |
[2024] IEHC 119
Record No. 2018/5296P
THE HIGH COURT
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 1 st day of February 2024
This is the Defendants' application for an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts 1986 (as amended) (“RSC 1986”), seeking liberty to deliver an amended Defence pursuant to a Notice of Motion dated 15 th November 2023 grounded on an Affidavit from Ruth Lynch, State Solicitor, sworn on 15 th November 2023.
Paul McGarry SC and Eamon Marray BL appeared for the Plaintiff, and Patrick McCann SC and Nathan Reilly BL appeared for the Defendants.
The background to the application concerns the Plaintiff's challenge, brought by way of a plenary action, to the lawfulness of the application of administration charges (effectively administrative deductions) by the First Named Defendant in the amount of €500 per vehicle when processing VRT 1 refunds which were due to the Plaintiff arising from its business of exporting large quantities of second-hand motor vehicles. The total sum of the administrative deductions between 17 th April 2013 and 31 st December 2015 is alleged to be €450,100.
The Plaintiff, in the substantive action, inter alia seeks repayment and restitution of this sum of €450,100, damages, interest and costs. Reliance is placed on the decision of the Court of Justice in Case C-552/15 Commission v Ireland (Registration Tax) (ECLI:
EU:C:2017:698) 2 where it was inter alia held, on the facts of that case, that the existence of a deduction of €500 from the amount of registration tax by way of an administration charge to be refunded, did not comply with the principle of proportionality. The Court of Justice held that by failing to provide for the payment of interest when registration tax was refunded and by deducting €500 by way of an administration charge from the amount of registration tax to be refunded, Ireland had failed to fulfil its obligations under the freedom to provide services in Article 56 of the Treaty on the Functioning of the European Union (TFEU). Arising from section 49 of the Finance Act 2015, the amount of the administration charge prescribed in section 135D(4)(b) of the Finance Act 1992 was reduced from €500 to €100 from 1 January 2016Again, while a matter for the Trial Judge, in its Defence delivered on 11 th March 2019, the Defendants inter alia plead that the decision of the Court of Justice in Case C-552/15 Commission v Ireland (Registration Tax) only relates to temporary cross-border leasing or rental of motor vehicles and is not of more general application.
The chronology of the proceedings is as follows: the Plenary Summons is dated 11 th June 2018; a Memorandum of Appearance was entered on 29 th June 2018; a Statement of Claim was delivered on 13 th July 2018; a Notice for Particulars is dated 23 rd October 2018; the Replies to Particulars is dated 11 th January 2019; the Defence is dated 11 th March 2019; a Notice of Change of Solicitors for the Plaintiff is dated 21 st September 2022.
In addition to some suggested minor procedural amendments, the proposed amendment seeks to insert a new paragraph 17 to the amended Defence as follows:
“ 17. Strictly without prejudice to the foregoing and below pleas and/or strictly in the alternative, the Plaintiff is not entitled to any of the Reliefs sought on the following grounds:
(a) The Plaintiff at no time during the period 17 th April 2013 to 19 th September 2017 contested the validity of the €500 deduction for examination and processing of Vehicle Registration Tax refunds or commenced any proceedings for Declarations or restitution/Damages.
(b) Further, and strictly without prejudice to the pleas above and below, in so far as the Plaintiff has not and does not contest the validity of the current €100 administrative charge, to include technical examination and/or administrative
charge it is pleaded that any recovery of the full amount of the €500 charge would amount to unjust enrichment. The Defendants rely on the EU legal principle against unjust enrichment .(c) Article 56 TFEU is expressed in general terms at a level of high principle consistent with provisions of TFEU. A broad discretion was conferred on the Oireachtas in addressing a scheme for Vehicle Registration tax and refunds thereunder.
(d) Article 56 did not purport to address the details of a tax such as Vehicle Registration Tax or its detailed workings. Article 56 did not clearly or directly address the circumstances partly addressed in the Judgment.
(e) As regards the Judgment, the Judgment was not foreshadowed by any judgment dealing with the same legal and factual material. There was no prior determination by an EU or a national court. Further, and without prejudice to the forgoing, the Judgment was not stated to have, nor could it have, retrospective effect.
(f) The conduct of the Defendants was excusable.
(g) The Defendants, prior to the Judgment, without prejudice to its position that the administration fee of €500 was not unlawful, reduced the administration fee to €100 to allay any residual concern regarding the operation of the refund system.
(h) The Oireachtas did not manifestly or gravely disregard the limits on the exercise of its powers.
(i) The Defendant pleads that a breach of Article 56 TFEU is not per se actionable by any person that has suffered or risks suffering loss as a result. A breach of a directly effective provision of EU law, such as the last sentence of Article 108(3) TFEU, is only actionable if three conditions are met: (1) the rule of law infringed must be intended to confer rights on individuals; (2) the breach must be sufficiently serious; and (3) there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
(j) The Plaintiff has not made any allegation or pleaded any facts which are or could be relied upon to address the second of those conditions, namely that the breach must be sufficiently serious.
(k) In the premises, the Plaintiff's claim for damages for breach of TFEU does not disclose any cause of action.
(l) Without prejudice and in the alternative, there has been no breach of any “important” rule of EU law (as per the decision in R v Secretary of State, ex parte Factortame [2000] 1 AC 524 and related case law) .
(m) Any alleged breach was not deliberate. The public administration reasonably believed that the scheme was appropriate, lawful and proportionate.
(n) The Defendants acted to remedy the matter as soon as the breach was established. None of the costs allegedly incurred were caused after judgment.
(o) The Plaintiff did not complain about the charge. Any loss suffered by the Plaintiff was passed on to the end purchasers and were in any event of limited seriousness for the Plaintiff. There was no loss to the public at large.
(p) Further and/or in the alternative on the issue of the administrative charge the position of the Commission was not confirmed until 26 th February 2015 and the State, without legal obligation and notwithstanding the non-binding nature of the Letter of Formal Notice and/or Reasoned Opinion, started to put in place arrangements to satisfy the Commission.”
In addressing this application and the above proposed amendment, it is not the task of this court to assess the merits of the application. That is a matter for the Trial Judge at the substantive hearing.
Arising from the proposed amendment (set out above), the Defendants argue that they have sought to address more fully the Plaintiff's claims, including its reliance on inter alia, Case C-552/15 Commission v Ireland (Registration Tax) and have also sought to address the position where the Defence of no “ manifest” or “ sufficiently serious breach” of EU law was not made as explicitly as it might otherwise have been in the Defence delivered on 11 th March 2019 and the Defendants anticipated that there was a risk that the Plaintiff might not consider that such a Defence had been engaged.
In this regard – and as both parties submit – the question of whether damages, for example, could be awarded against the State for an alleged breach of EU law (which again is a matter for the Trial Judge) involves consideration of the principles set out in cases such as Francovich and Bonifaci v Italy (Joined Cases C-6/90 and C-9/90) [1991] E.C.R. I-5357 as applied in Brasserie du Pechêur S.A. v Germany (Case C-46/93) and R v Secretary of State for Transport ex p. Factortame (Joined Cases C-46/93 and C-48/93) [1996] E.C.R. I-01029 where in the context of a failure to transpose a Directive, the Court of Justice decided that this failure could conditionally give rise to a right to damages if: first, the provisions of the Directive in question included the grant of rights to individuals; second, it was possible to identify the content of those rights from the provisions of the Directive; and third, there was a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.
On behalf of the Defendants, it is submitted that where a State fails to implement EU law properly, damages do not arise in every case. In summary, it is submitted that a party is only entitled to damages where the breach of EU law is manifest or sufficient – while this was latent in the original defence, the proposed amendment makes it express. From a pleading perspective, it is submitted that the proposed amendment also has to be seen in the context of O.21, r. 6 RSC 1986 which provides that “ [n]o denial or defence shall be necessary as to damages claimed or their amount; but they shall be...
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