Panel 1: Sources and standards of the Acte Clair Doctrine in Direct Tax Law

Methodological Remarksand Aspects of the Discussion

Ekkehart ReimerUniversität Heidelberg

Lisbon, September 17, 2007

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

Structure

I. Methodology

II. Aspects and Dimensions of the Acte Clair Discussion

III. Separate Methods for the Separate Aspects of the Discussion?

IV. Acte Clair Doctrine: an Indicator for the State of the Union?

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

I. Methodology

wording of Art. 234 EC

“question” (paras. 2 and 3)

“if [the national court] considers that a decision on the question is necessary to enable it to give judgment” (para. 2, but maybe also para. 3 (cf. CILFIT, nos. 10 and 11))

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

I. Methodology (cont’d)

other normative anchors primary EC law:

· Art. 5 (2) & (3) EC· Prot. no. 30 (Subsidiarity Protocol)· Art. 6 (2) EU and Art. 6 ECHR

(legal certainty, competent judge, speedy trial)· unity (uniformity) in the interpretation of EC law· character of ECJ decisions: Is there a stare decisis

rule? Do ECJ decisions establish case law? Sub-Treaty EC law:

· Procedural Rules of the Court (Arts. 102, 104 § 3, …) Domestic law?

· again: legal certainty, competent judge, speedy trial· domestic stare decisis requirement as an

indispensable precondition for European integration?

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

I. Methodology (cont’d)

teleological aspects establishing judicial subsidiarity self-relief of ECJ by reducing the

flood of requests under Art. 234? rather, containment of violations

of Art. 234 (3) by national courts strengthen the responsibility and sensitivity of national courts

for EC law issues multiply the number of “generators of ideas”

about the interpretation of EC law integrating the ECJ in a network of highest courts

which cooperate, share responsibility and authority accelerating procedures before national courts,

meet the demands of Art. 6 ECHR

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

I. Methodology (cont’d)

quis iudicabit?

reflect ECJ case law

· on the Acte-Clair Doctrine itself (C.I.L.F.I.T. etc.)· on adjacent doctrines (e.g., Köbler, Meilicke etc.)

reflect national case law (Algera)

· on the Acte-Clair Doctrine re. Art. 234 EC itself· on comparable domestic tests

if national case law is taken into account: Is it necessary to define “AC” uniformly …

· … between different Member States· … between Member States and ECJ?

· … in general?· … in the field of direct tax law?

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II. Aspects and Dimensions of the ACD Discussion

at it used to be ... ... is now ... ... and should be time

level

ECJ

national courts

subject area

non-tax cases

tax cases

trans

fer o

f idea

s

Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

.

II. Aspects and Dimensions of the ACD Discussion

at it used to be ... ... is now ... ... and should be time

level

ECJ

national courts

subject area

non-tax cases

tax cases

Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

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Sources and standards of the Acte Clair Doctrine in Direct Tax LawMethodological Remarks. Ekkehart Reimer

III. Separate Methods for the Separate Aspects of the Discussion?

IV. Acte Clair Doctrine: an Indicator for the State of the Union? temporal dynamics ACD reflects expectations and confidence of ECJ

vis-à-vis domestic courts and vice versa ACD reflects the strength of EC law

in the special situation of non-enforceability