1 / 4

Should the Acte Clair Doctrine Be Upheld by Courts of Last Instance When Justifications Are Invoked?

This analysis explores the role of Courts of Last Instance when faced with national tax measures that may conflict with EC Freedoms of Movement. It addresses key questions such as the compatibility of national treatment, the balance between rules and exceptions, and the defenses presented by Member States, including claims of national interest. The implications of invoking the Acte Clair doctrine and the necessity for proper referral to Community law are examined, alongside considerations of previous ECJ rulings, potential justifications, and the proportionality of national measures.

bracha
Télécharger la présentation

Should the Acte Clair Doctrine Be Upheld by Courts of Last Instance When Justifications Are Invoked?

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Panel 3SHOULD THE ACTE CLAIR DOCTRINE BE UPHELD BY COURTS OF LAST INSTANCE WHEN JUSTIFICATIONS ARE INVOKED? By Francisco de Sousa da Câmara

  2. Courts of the Last Instance are confronted with: • The question: is a specific national tax measure compatible with the EC Freedoms of Movement? Is national treatment ensured? • The rule and the exception to refer • The standard defence of Member States: • Denying violations of EC law • Invoking justifications (national interest)

  3. How should Last Instance Courts react? • Is Community law relevant to decide the case? • No: No need to refer • Yes: Must refer, unless, • Acte Clair may be applied (different criteria should be analysed and justified) • Always? • Previous ECJ ruling did or did not preclude similar national measure? • If precluded, was measure nevertheless justified? • How to proceed in the latter case?

  4. Previous similar measure authorised under justifications should allow the Acte Clair to be applied? • What statistics show us about justifications • Particular difficulties with new justifications: • Balanced allocation of tax jurisdictions (…potentially with added factor of several bilateral DTTs) • Prevention of tax evasion (…potentially different domestic facts and rules) • Necessity, appropriateness and proportionality of the measure: a final appraisal for national courts? • Full final CILFIT assessment should prevent widening (national leaning) justifications/ non-tolerated discriminations

More Related