Push Energy Limited v The Commissioners for HMRC

The Zwartveld practice is not confined to requests concerning the validity of an EU act. Nor must the requested material be essential in the sense that the tribunal cannot determine the appeal without it. The ordinary principles governing disclosure apply, including relevance to the issues in the appeal.

A tribunal may consider the likely response of the European Commission, but it must assess that response rationally and in the round. A possible refusal, particularly where the Commission has identified the court-request route, is not ordinarily a sufficient reason to refuse a relevant request.

The appellant appealed against the First-tier Tribunal’s refusal to request from the European Commission a copy of a confidential undertaking concerning anti-dumping and countervailing duties on imported photovoltaic modules.

The First-tier Tribunal considered that a Zwartveld request was limited to information essential to resolving the validity of an EU act and refused the application, also taking account of the Commission’s previous refusals to disclose the undertaking to the appellant. The Upper Tribunal considered the tribunal’s jurisdiction, territoriality, the applicable threshold, and the relevance of the Commission’s likely response.

1. Jurisdiction. The First-tier Tribunal had jurisdiction under rule 5 and/or rule 16 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 to request documents from the European Commission. The request could be made through the Commission’s representative in the United Kingdom.
2. Ground 1 allowed. The First-tier Tribunal erred in law by treating the Zwartveld practice as limited to documentation concerning the validity of an EU act. Eurobolt BV [2019] EUECJ C-644/17 concerned that particular context and did not impose a general restriction on the long-standing principle of sincere co-operation.
3. Ground 2 allowed. Relevance was sufficient. The requested document did not have to be essential in the sense that the substantive appeal could not be decided without it. The references in First NV et Franex NV [2002] EUECJ C-275/00 to information which a national court needs did not establish an essentiality test. The essentiality language in Eurobolt BV related to information needed to decide whether to make a reference concerning the validity of EU legislation.
4. Ground 3 partly allowed. The First-tier Tribunal was entitled to consider the Commission’s likely response, but it gave that factor too much weight and acted irrationally by considering the Commission’s previous refusals while ignoring its repeated identification of the alternative route of a request from a national court. A possible unhelpful response was not a good reason to refuse the application.
5. The errors were material. The First-tier Tribunal’s decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The matter was remitted under section 12(2)(b), with directions that the application be granted. The First-tier Tribunal was to hear submissions on the terms of the request, including whether it should be delivered to the European Union Delegation to the United Kingdom.

• First-tier Tribunal (Tax Chamber): refused the appellant’s application for a request to the European Commission for disclosure of the undertaking.
• Upper Tribunal (Tax and Chancery Chamber): set aside the First-tier Tribunal’s decision and remitted the matter with directions that the application be granted.