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Interpretation of Spanish Courts of the Acte Clair doctrine on direct taxes

Interpretation of Direct Taxation Issues by the ECJ ‑ The Meaning and Scope of the Acte Clair Doctrine Lisbon 17-18 September 2007 Francisco Alfredo García Prats Universitat de València (Spain).

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Interpretation of Spanish Courts of the Acte Clair doctrine on direct taxes

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  1. Interpretation of Direct Taxation Issues by the ECJ ‑ The Meaning and Scope of the Acte Clair DoctrineLisbon 17-18 September 2007Francisco Alfredo García PratsUniversitat de València (Spain)

  2. (IV) Consequences of the Acte Clair doctrine for the national courts and temporal effects of an ECJ decision (Spanish case) • Interpretation of Spanish Courts of the Acte Clair doctrine on direct taxes • Temporal effects of an ECJ decision • Effectivenes of EC Law in tax matters in Spanish jurisprudence • Exposure to EC Law vs protection of EC Law: search for effective protection mechanisms F. Alfredo García

  3. Interpretation of Spanish Courts of the Acte Clair on direct taxes • Reluctance of Suprem Court to submit preliminary questions (also in direct tax matters) • Acte clair doctrine used to justify reluctance: subjective appreciation of lack of EC Law relevance (STS 15-7-2002) • Tax Administration: rule of law in front of ECJ case law F. Alfredo García

  4. Temporal effects of an ECJ decision • ‘Declarative’ effect of ECJ decisions • Material effect of interpretation made by ECJ • Primacy • Non-application of domestic tax law valid but contrary to EC Law developments made by ECJ • Lack of ‘equal treatment’ to secondary EC Law and EC Law ‘interpretation’ developed by ECJ • Revision of Defrenne Doctrine • ‘De facto’ limitation to ex tunc effects of ECJ decisions • Domestic law limitations: revocation, forfeiture, statute of limitation, res iudicata • Reconsideration of ECJ Doctrine: AG Meilicke, AG Banca di Cremona F. Alfredo García

  5. Effectiveness of EC Law in tax matters in Spanish jurisprudence • Refund of undue tax receipts: • Domestic limitations applicable. • Special appeal mechanisms non-applicable • Damages against the State: • Non-extensible to EC Law breaches in tax matters (STS 29-1-2004 and STS 24-5-2005) • Lack of exposure and Lack of effective protection F. Alfredo García

  6. In search for effective protection mechanisms • Commission Control: infringement procedures • Control of the judicial duty of collaboration: obligation to submit preliminary rulings • No control of the ‘discretional’ interpretation of EC Law made by national judges • Domestic control: Constitutional Court • Appeal of legal protection: Effective protection of the court. Due process • STC 58/2004 and STC194/2006: wrong application of ‘acte clair’ doctrine against rule of law: Reformulation • Respect of the role of National Judges as EC Law judges F. Alfredo García

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