Kein Folientitel

1
The interpretation of the Acte Clair Doctrine by
the tax administrations and courts in the EC
Member States Ekkehart Reimer, Universität
Heidelberg Lisbon, September 17, 2007
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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• Introduction
• Court Practice
• statistics
• shadow numbers
• recent experience with cases treated as actes
  clairs
• adjacent phenomena
• Administrative Practice
• Conclusions

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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• II. Court Practice
• Statistics

Member State Member State Member State DE NL UK BE SE FR LU FI AT DK EL ES PT IE IT EU-10 Total
Art 234 ECT Nr of judge-ments in cases registered ...until -94 3 3 2 1 2 11
Art 234 ECT Nr of judge-ments in cases registered ...from95- 13 12 5 3 6 4 3 3 3 2 2 1 57
Art 234 ECT Pending cases Pending cases 13 2 5 4 2 2 1 2 1 1 33
Total Art. 234 ECT Total Art. 234 ECT Total Art. 234 ECT 29 17 12 8 8 6 6 5 4 3 2 1 101
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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• II. Court Practice
• Statistics
• 13 pending cases on direct taxation,
• double number of cases on other areas of
  taxation
• Shadow Numbers (2006-01-01 until mid 2007 all
  areas of taxation)
• at least 7 decisions explicitly deny presentation
  of issues to the ECJ, most of them based on ACD
• compared to 30 new requests during this period

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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• Court Practice
• Recent experience with cases treated as actes
  clairs
• little reference to CILFIT or other ECJ cases
• Sometimes, BFH mixes up the requirements under
  Art. 234 (3) EC with domestic tax appeal
  requirements.
• In one case, BFH has revoked a pending request
  under Art. 234 (3) EC after ECJ decided similar
  cases.
• extraordinary post-appeal remedy by which
  taxpayer can claim a violation of Art. 234 (3) EC

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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• Court Practice
• 4. Adjacent Phenomena
• FG takes the right to deviate from old BFH ruling
  if ECJ has overruled BFH case law meanwhile
• Loophole of judicial protection in the following
  situation
• The lower tax court neither refers the case to
  ECJ
• nor allows appeal to the BFH
• and the BFH does not grant appeal either.

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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• Administrative Practice
• Tax administrations (federal level Länder
  authorities) have often issued general decrees
  banning or modifying the application of domestic
  rules after ECJ decisions, even where Germany was
  not a party of the ECJ case ...
• ... but no visible examples of spontaneous
  non-application of domestic law by the single tax
  inspector.
• Federal Government takes legislative initiatives
  to abolish domestic tax provisions which violate
  EC law ...
• ... but has often failed to check the
  compatibility of new legislation with EC law.

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The interpretation of the Acte Clair Doctrine by
the taxadministrations and courts in the EC
Member States

• IV. Conclusions
• Good working relationship between domestic courts
  and ECJ,
• but still some example for an arbitrary denial of
  Art. 234 procedures ...
• ... and too much unreflected and misleading
  transfer of ideas by BFH when applying the acte
  clair doctrine

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