Marks and Spencer v HM Customs and Excise (2005) HL Whole case here

[EU Law - article 234 reference - from the Lords] D, Marks and Spencer claim to have overpaid VAT on tea cakes possibly amounting to more than £3m. This case has already been to the ECJ on one occasion during its 10 year action. Held: Food is in general zero-rated, but, explained Lord Hoffman, there are exceptions. One exception is confectionery. But there is an exception to that exception: cakes or biscuits are in general also zero-rated. There is however an exception to that exception to the exception, namely biscuits wholly or partly covered with chocolate. They are standard-rated. Art 28 of the Sixth Directive being relevant to the directly enforceable right of the taxpayer. Matter referred to ECJ a year later, certified question here Comment: The judgment by the ECJ will be considered by the House of Lords, possibly in 2008.