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Panel 1 Sources and standards of the Acte Clair
Doctrine in Direct Tax Law Methodological
Remarksand Aspects of the Discussion
Ekkehart ReimerUniversität Heidelberg Lisbon,
September 17, 2007
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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Structure
• Methodology
• Aspects and Dimensions of the Acte Clair
  Discussion
• Separate Methods for the Separate Aspects of the
  Discussion?
• Acte Clair Doctrine an Indicator for the State
  of the Union?

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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Methodology
• wording of Art. 234 EC
• question (paras. 2 and 3)
• if the national court considers that a
  decision on the question is necessary to enable
  it to give judgment (para. 2, but maybe also
  para. 3 (cf. CILFIT, nos. 10 and 11))

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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Methodology (contd)
• other normative anchors
• primary EC law
• Art. 5 (2) (3) EC
• Prot. no. 30 (Subsidiarity Protocol)
• Art. 6 (2) EU and Art. 6 ECHR(legal certainty,
  competent judge, speedy trial)
• unity (uniformity) in the interpretation of EC
  law
• character of ECJ decisions Is there a stare
  decisis rule? Do ECJ decisions establish case
  law?
• Sub-Treaty EC law
• Procedural Rules of the Court (Arts. 102, 104
  3, )
• Domestic law?
• again legal certainty, competent judge, speedy
  trial
• domestic stare decisis requirement as an
  indispensable precondition for European
  integration?

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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Methodology (contd)
• teleological aspects
• establishing judicial subsidiarity
• self-relief of ECJ by reducing the flood of
  requests under Art. 234?
• rather, containment of violations of Art. 234
  (3) by national courts
• strengthen the responsibility and sensitivity of
  national courts for EC law issues
• multiply the number of generators of
  ideasabout the interpretation of EC law
• integrating the ECJ in a network of highest
  courtswhich cooperate, share responsibility and
  authority
• accelerating procedures before national
  courts,meet the demands of Art. 6 ECHR

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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Methodology (contd)
• quis iudicabit?
• reflect ECJ case law
• on the Acte-Clair Doctrine itself (C.I.L.F.I.T.
  etc.)
• on adjacent doctrines (e.g., Köbler, Meilicke
  etc.)
• reflect national case law (Algera)
• on the Acte-Clair Doctrine re. Art. 234 EC itself
• on comparable domestic tests
• if national case law is taken into account
• Is it necessary to define AC uniformly
• between different Member States
• between Member States and ECJ?
• in general?
• in the field of direct tax law?

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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer
II. Aspects and Dimensions of the ACD
Discussion
level
transfer of ideas
ECJ
subject area
national courts
tax cases
non-tax cases
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at it used to be ...
... is now ...
... and should be
time
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Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer
II. Aspects and Dimensions of the ACD
Discussion
level
ECJ
subject area
national courts
tax cases
non-tax cases
.
at it used to be ...
... is now ...
time
... and should be
9
Sources and standards of the Acte Clair Doctrine
in Direct Tax LawMethodological Remarks.
Ekkehart Reimer

• Separate Methods for the Separate Aspects of the
  Discussion?
• Acte Clair Doctrine an Indicator for the State
  of the Union?
• temporal dynamics
• ACD reflects expectations and confidence of ECJ
  vis-à-vis domestic courts and vice versa
• ACD reflects the strength of EC law in the
  special situation of non-enforceability

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