Michael Anderson & Alison Last report on the complexities of the Thin Cap legislation
Mr Justice Henderson handed down his judgment in Test Claimants in the Thin Cap Group Litigation v Commissioners for HM Revenue and Customs [2009] EWHC 2908 (Ch), [2009] All ER (D) 218 (Nov) (the Thin Cap case) last November. The details of the litigation are discussed in further detail below, however, it is of note here that, for the first time in a tax related claim, the High Court has found that a provision of national law was in breach of community law to a sufficiently serious degree, such that it gave rise to a claim for damages under Factortame.
In Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport, ex parte Factortame Ltd & Ors (No. 4) Joined Cases C-46/93 & C-48/93 (Factortame), the European Court of Justice (ECJ) laid down the three conditions which had to be met in order to establish such a claim: the rule of law infringed must have been
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