Interpretation or application—is the Court of Appeal right, asks Paul Lasok QC
According to the Court of Appeal, a reference should not be made to the European Court of Justice (ECJ) for a preliminary ruling under Art 267 of the Treaty on the Functioning of the European Union (TFEU 267) where the issue of EU law involves applying that law rather than interpreting it. This article considers that question by reference to two Court of Appeal cases: John Wilkins (Motor Engineers) Ltd and others v Revenue and Customs Commissioners [2011] EWCA Civ 429, [2011] STC 1371 and JBW Group Ltd v Ministry of Justice [2012] EWCA Civ 8, [2012] All ER (D) 69 (Jan).
What is the problem?
In John Wilkins, the application/interpretation issue concerned the compatibility with the EU law principle of effectiveness of the statutory regime for recovering overpaid VAT should a claimant be entitled to compound interest under EU law. Etherton LJ, with whom the rest of the Court of Appeal agreed, considered that a reference to the ECJ was not appropriate: “The Marleasing principle and the
