In Lady & Kid the ECJ has restricted the scope for revenue authorities to utilise the unjust enrichment defence in EU law claims.
The Court held that “the direct passing on of the tax wrongly levied on the purchaser constitutes the sole exception to the right to reimbursement of tax levied in breach of European Union law”.
This is a clear statement by the Court that the unjust enrichment defence is the only EU law defence to a repayment claim, and is restricted to the specific circumstances of a company passing the unlawful charge to its customers directly through increased prices.
This means that any other defences (such as change of position) cannot be raised in tax repayment claims under EU law.
This point was re-affirmed in Accor, reported above.