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EU tax litigation Basic principles

EU tax litigation Basic principles. Dr Adam Zalasi ński. Agenda. The infringements procedure The preliminary rulings The effects of EU tax litigation on the law making process in the Member States . Types of proceedings before the CJ. Contentious procedure

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EU tax litigation Basic principles

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  1. EU tax litigationBasic principles Dr Adam Zalasiński

  2. Agenda • The infringements procedure • The preliminary rulings • The effects of EU tax litigation on the law making process in the Member States

  3. Types of proceedings before the CJ • Contentious procedure • Infringements actions under Art. 258 TFEU • Commission as the applicant – it brings MSs to the Court • Non-contentious procedure • Preliminary rulings under Art. 267 TFEU • Commission as ‘amicus curiae’ – it submits written observations and appears in hearings

  4. Infringements procedure – an outline • Stages • Informal stage (EU-Pilot inquiry) • Administrative stage • Letter of formal notice • Reasoned opinion • Judicial stage - referral to the ECJ

  5. Infringements procedure – legal nature • Objective nature of the infringement procedure: • It concerns ‘an objective finding of a failure to fulfil obligations and not on a proof of any criteria or opposition on the part of the Member States concerned’ (Case 301/81, Com v. Belgium) • It makes an objective assessment of the legality of the MS’s behaviour (no guilt/intention issue)

  6. Preliminary ruling – an outline • Interpretation of EU law • Primary and secondary • Courts of last instance – obliged to refer a question • Courts of lower instances – entitled to refer a question • Validity of Community acts • Secondary law and decisions in individual cases (all domestic courts obliged to refer a question if they have doubts as to validity)

  7. The effects of preliminary rulings on domestic tax law • Direct consequence: • Taxpayers’ rights are ensured within judicial control of tax administration’s decisions, • Indirect consequence: • National law maker should respond to the CJ’s ruling if domestic law does not conform with the interpretation of EU law by the CJ • If not – an infringement proceeding may be opened.

  8. The effects of EU litigation on the law making process in the Member States • Empirical study (General Report for 2006 FIDE Congress) • MS frequently abolish more preferential domestic regimes instead of extending them to cross-border situations, or • Extend application of norms limiting taxpayers’ rights in cross-border situations to domestic cases

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