By Francisco de Sousa da Câmara Panel 3 SHOULD THE ACTE CLAIR DOCTRINE BE UPHELD BY COURTS OF LAST INSTANCE WHEN JUSTIFICATIONS ARE INVOKED? By Francisco de Sousa da Câmara

Courts of the Last Instance are confronted with: The question: is a specific national tax measure compatible with the EC Freedoms of Movement? Is national treatment ensured? The rule and the exception to refer The standard defence of Member States: Denying violations of EC law Invoking justifications (national interest)

How should Last Instance Courts react? Is Community law relevant to decide the case? No: No need to refer Yes: Must refer, unless, Acte Clair may be applied (different criteria should be analysed and justified) Always? Previous ECJ ruling did or did not preclude similar national measure? If precluded, was measure nevertheless justified? How to proceed in the latter case?

Previous similar measure authorised under justifications should allow the Acte Clair to be applied? What statistics show us about justifications Particular difficulties with new justifications: Balanced allocation of tax jurisdictions (…potentially with added factor of several bilateral DTTs) Prevention of tax evasion (…potentially different domestic facts and rules) Necessity, appropriateness and proportionality of the measure: a final appraisal for national courts? Full final CILFIT assessment should prevent widening (national leaning) justifications/ non-tolerated discriminations