British Aggregates domestic proceedings revived

At a hearing in the Court of Appeal yesterday, before Longmore and Beatson LJJ, directions were given for the revival of the British Aggregates appeal – at nearly 11 years old, the longest-standing appeal currently pending before that Court.

Those who have followed the Jarndyce v Jarndyce-like progression of this case may recall that the proceedings started in 2002 with a judicial review by the British Aggregates Association of the Aggregates Levy, shortly before it was due to be implemented. The BAA claimed, among other things, that the numerous exemptions in the levy constituted State aid. Moses J rejected the claim, ruling that the differentiation between the untaxed and taxed aggregates was justified by the nature and general scheme of the system established by the levy, and was therefore not selective. In parallel with the proceedings in the High Court, the European Commission had also been investigating the levy, and just days after the High Court ruling was handed down the Commission published a decision that also found that the levy was not State aid, for the same reason given by Moses J.

The epicentre of the case then shifted to the European Court, where the BAA applied for the annulment of the Commission decision. While they also appealed the High Court judgment, the Court of Appeal case was stayed pending the outcome of the European Court proceedings. At the time, it was thought that this might take at most few years. Unfortunately, it took 10 years. The General Court’s judgment (Case T-210/02) was not delivered until 2006, and it rejected the appeal. Undeterred, the BAA appealed to the ECJ (Case C-487/06 P). The ECJ judgment, delivered in 2008, set aside the General Court’s judgment and remitted the case. The second judgment of the General Court (Case T-210/02 RENV) in March 2012 annulled the Commission’s decision.

That left the Commission obliged to adopt a new decision in the light of the March 2012 judgment. A year on, however, no decision has materialised. In those circumstances, the BAA asked the Court of Appeal to lift the stay and get on and decide the domestic appeal for itself. The Court of Appeal agreed to do so. While it acknowledged the risk of inconsistent decisions if the national courts were to decide a State aid case that was pending in parallel before the Commission, it considered that this risk was outweighed by the undesirability of postponing the appeal for an indefinite period while the Commission continued its investigation (with the possibility of yet a further appeal to the European Court by one or other party following the Commission’s final decision).

The appeal will therefore be heard at a date to be fixed by the Court.

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