British judges must decide whether one of the kingdom’s best-known retailers can recover £3.5 million (euro 4.4 million; $6.9 million) from the taxman in a dispute over cakes and cookies, Europe’s highest court said on Thursday.

In a case dating back to the to the early 1970s, the Marks & Spencer retail chain is seeking a refund for sales tax it paid for 21 years on chocolate-covered “teacakes”, which British authorities wrongly classified as cookies instead of cakes. Britain taxes sales of chocolate-covered cookies, but not chocolate-covered cakes.

The European Court of Justice sent the case back to London saying Marks & Spencer Group PLC must show that it was discriminated against under British law to win the full refund. British tax authorities acknowledged their teacake mistake in 1994 and reclassified the milk-chocolate-swathed domes of marshmallow and biscuit as tax-exempted cakes.

However, they refused to pay back the full £3.5 million, which the retailer says it paid on the products since Britain introduced Value Added Tax in 1973.

Instead, the Customs and Excise department offered just £88,440. As the increasingly complex case moved through the British courts, the authorities argued that a full repayment would “unjustly enrich” M&S, as the company had passed on 90 per cent of the tax charges to its customers.

M&S complained that it was discriminated against because British laws disallowing repayments that lead to unjust enrichment do not apply to all categories of taxpayers.

The tempest over teacakes found its way to Britain’s highest legal authority — the House of Lords — which appealed to the Luxembourg-based European court for help.In its ruling, the Court of Justice said national authorities could refuse to reimburse wrongly paid sales tax if this would lead to unjust enrichment, but it added that the company should be repaid in full if it can prove in the British courts that it suffered discrimination.

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