BAA Legal Challenge supported by Advocate General.

• 
• 20th August 2008
• Quarrying
 

 

Advocate General Mengozzi, of the European Court of Justice, has recommended that the Court of First Instance's (CFI) judgment upholding the legality of the UK's Aggregates Levy (AGL) under EU subsidy law should be quashed.  This represents a significant step forward in the BAA's legal battle to demonstrate that the AGL distorts competition and constitutes illegal State aid under EC law.

In reaching his conclusion, the Advocate General criticised several aspects of the CFI's reasoning;

 

• He agreed with the BAA argument that the CFI was wrong to conclude that the AGL's purported environmental justification somehow exempted it from EU subsidy rules. Not only is this not supported by previous case law, the Advocate General made it clear that governments do not have carte blanche to implement an unfair and illogical tax under the guise of environmental policy.
• He found that the CFI tried to paper over cracks in the original Decision - approving the AGL - and that they further misconstrued the basis on which that Decision was taken in a mistaken effort to justify its conclusion.  In particular, the Advocate General faulted the CFI for inventing a new meaning for secondary aggregate in an effort to make the AGL, and the Decision approving it, appear logical and consistent.
• Finally, and most significantly, the Advocate General found that the CFI failed to carry out a comprehensive review of the legal basis of the original EC Decision to approve the Levy. He went on to say that such an error impugned the very basis of the CFI's ruling and "could undermine the entire assessment of the merits of the [Commission's] decision."

BAA Director Robert Durward;

"This opinion strongly supports our view that the AGL is a stealth tax.  Although the Advocate General uses restrained language, his opinion represents a damning indictment of the CFI's actions.  We hope that the ECJ will now bring this episode to a speedy conclusion by reversing the CFI decision, instead of simply asking them to reconsider.  We have already waited over six years for justice and it is difficult to see any reason to prolong this masquerade any longer." 

 

http://www.british-aggregates.co.uk/