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The Acte Clair Doctrine in ECJ's Direct Tax Case Law

This article explores the meaning and scope of the Acte Clair Doctrine in the case law of the European Court of Justice (ECJ) regarding direct taxation. It discusses the sources and standards of the Acte Clair Doctrine, the issues it addresses, and its implications for domestic courts and taxpayers' rights. The article also considers the ECJ's agenda and the domestic judge's agenda in relation to the Acte Clair Doctrine.

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The Acte Clair Doctrine in ECJ's Direct Tax Case Law

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  1. The Meaning and Scope of the Acte Clair Doctrine in the ECJ’s Direct Tax Case LawCécile Brokelind - Lund UniversityDepartment of Business LawSchool of Economics and Management

  2. 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: Supreme courts’ duty to refer to ECJ • Purpose: Discuss the level of clarity in the ECJ’s case law in direct taxation

  3. SOURCE AND STANDARDS OF THE ACTE CLAIR DOCTRINE The acte clair issues QUESTIONS • 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 domestic judges to avoid reference? • Decentralization versus homogeneity • ART. 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 • Organizes the framework for cooperation between national courts and ECJ

  4. SOURCE AND STANDARDS OF THE ACTE CLAIR DOCTRINE The ECJ’s agenda The domestic judge’s agenda • Avoiding a long waiting period Impossible awareness of 27 Member States pending cases • Avoid a new Köbler/Traghetti • Application / interpretation of Community legislation • Keeping control over a decentralized monitoring of Community rights • Preventing national courts from an abusive clear view • Ensuring conformity and quality of Community law rights

  5. 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 ? The Acte Clair doctrine applied in Direct Taxation 1) The existence of a previous decision

  6. 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 The Acte Clair doctrine applied in Direct Taxation 2) A matter equally obvious to the Courts of other Member States

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