introduction court practice statistics shadow numbers
DESCRIPTION
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. The interpretation of the Acte Clair Doctrine by the tax administrations and courts in the EC Member States. - PowerPoint PPT PresentationTRANSCRIPT
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
.
The interpretation of the Acte Clair Doctrine by the taxadministrations and courts in the EC Member States
I. Introduction
II. Court Practice
1. statistics2. shadow numbers3. recent experience with cases treated as actes clairs4. adjacent phenomena
III. Administrative Practice
IV. Conclusions
.
The interpretation of the Acte Clair Doctrine by the taxadministrations and courts in the EC Member States
II. Court Practice
1. Statistics
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
...from95-
13 12 5 3 6 4 3 3 3 2 2 1
57
Pending cases 13 2 5 4 2 2 1 2 1 1 33
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
1. Statistics
• 13 pending cases on direct taxation,• ~ double number of cases on other areas of taxation
2. 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
II. Court Practice
3. 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
II. 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
III. 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