BAA Aggregates Levy battle gathers momentum

British Aggregates Association granted permission for full hearing in Court of Appeal

THE British Aggregates Association (BAA) has recently been granted permission for a three-day hearing at the Court of Appeal in October this year, in its attempt to try to overturn the 2002 Justice Moses judgment in its long-running battle against the Aggregates Levy.

Following a successful outcome in the EU General Court in March 2012, the Association requested that the stay on its appeal be lifted so that the case could proceed to its long-awaited conclusion.

At a hearing in July 2012 a date was set for a two-day hearing in April 2013 – the reason for the nine-month delay being that the EU was due to announce its decision on whether or not to open a Phase 2 investigation into the Levy.

According to the BAA, given the unequivocal judgment of both the European Court of Justice and the General Court, the EU would now be highly unlikely to grant state aid approval under the Phase 1 process.

However, by opening a Phase 2 procedure it would, de-facto, be conceding the presence of state aid, giving the English court a strong steer in the BAA’s favour.

The Association was told in July 2012 that the decision would be announced ‘sometime in the autumn’, but after a number of false alarms it was finally informed that the decision would ‘not be announced before the end of May 2013’.

The BAA therefore opted to use the April date for a directions hearing rather than attempt to hear the full case, and on 10 April the Court of Appeal gave the Association permission to proceed to a full hearing.

Although the Treasury argued strongly against this decision, it failed and the BAA was awarded its costs.

The BAA and the Treasury will now lodge their skeleton arguments by 21 May and 19 June, respectively, and there will be a three-day hearing before three Lord Justices in the Court of Appeal from 7–10 October 2013.

BAA director Robert Durward said: ‘Despite losing comprehensively in two EU Courts, the Treasury remains determined to hang on to this revenue stream for as long as possible, regardless of any hardship being caused. A number of operators have already gone into liquidation but still they carry on.’

He added that a number of quarries were now withholding the Levy as they consider it an unlawful tax. ‘So far, these quarries have successfully resisted enforcement efforts and will continue to do so.’

According to the BAA, HM Revenue & Customs rejected conditional payments or payment into a joint bank account on condition that the money would be repaid to the operator if the Levy was determined to be unlawful.

The Association says that if it wins its appeal, in addition to the Levy being scrapped, there is also a possibility that operators will be able to reclaim Levy paid, due the Government’s violation of the so-called ‘standstill obligation’.