The Meaning and Scope of the Acte Clair

The Meaning and Scope of the Acte Clair Doctrine in the ECJ’s Direct Tax Case Law Cécile Brokelind - Lund University Department of Business Law School of Economics and Management

SOURCE AND STANDARDS OF THE ACTE CLAIR DOCTRINE BACKGROUND • Starting point: Empirical studies showing that too few cases make their way to the ECJ • Domestic courts’ strong reliance on the CILFIT exceptions? • Two perspectives: • Taxpayers’ rights clearer and stronger • Empowerment of domestic judges • Limitations: • Purpose: Supreme courts’ duty to refer to ECJ Discuss the level of clarity in the ECJ’s case law in direct taxation

L U N D UN I V E R S I T Y SOURCE AND STANDARDS OF THE ACTE CLAIR DOCTRINE The acte clair issues • Decentralization homogeneity • ART. QUESTIONS versus • Do we have an agreement on what we mean by Acte Clair Doctrine? • Does the duty for Supreme courts to refer under 234§ 3 need to be relaxed? • What issues are clear enough for 234§ 3 // § 15 CILFIT • Cover risks of incorrect application of Community law or denial of justice • Meant to guarantee an homogeneous interpretation of Community Law domestic judges to avoid reference? • Organizes the framework for cooperation between national courts and ECJ 3

L U N D UN I V E R S I T Y SOURCE AND STANDARDS OF THE ACTE CLAIR DOCTRINE The ECJ’s agenda The domestic judge’s agenda Keeping control over a decentralized monitoring of Community rights • • Preventing • • national courts from an abusive clear view Avoiding a long waiting period Impossible awareness of 27 Member States pending cases • Avoid a new Köbler/Traghetti Application / interpretation of Community legislation • Ensuring conformity and quality of Community law rights 4

L U N D UN I V E R S I T Y The Acte Clair doctrine applied in Direct Taxation 1) The existence of a previous decision • • • A clear a mature case law? – Except for Bachmann 204/90, which case was ever overriden? – All cases in casu and no similar cases except for a few ones (Bujura/D; C-102/05 based on art 104(3) procedure rules) Can it ever happen? Who decides of the similarity ? 5

L U N D UN I V E R S I T Y The Acte Clair doctrine applied in Direct Taxation 2) A matter equally obvious to the Courts of other Member States • Easier for secondary legislation? – Comparison of language version appropriate for secondary legislation (ex PSD) • • Meaning of the Anti-abuse clause (art. 1. 2) Notion of Profit Distribution (art. 4) Caring about other Member States' tax law (Oy AA/Lindex) Too many cases rather than too few? Is there really a risk for overload? – 5765 preliminary rulings out of which 100 in direct tax law including secondary legislation 6