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

. Sources and standards of the Acte Clair Doctrine in Direct Tax Law Methodological Remarks. Ekkehart Reimer Structure I.Methodology II.Aspects and Dimensions of the Acte Clair Discussion III.Separate Methods for the Separate Aspects of the Discussion? IV.Acte Clair Doctrine: an Indicator for the State of the Union?

. Sources and standards of the Acte Clair Doctrine in Direct Tax Law Methodological Remarks. Ekkehart Reimer I.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))

. Sources and standards of the Acte Clair Doctrine in Direct Tax Law Methodological Remarks. Ekkehart Reimer I.Methodology (cont’d)  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?

. Sources and standards of the Acte Clair Doctrine in Direct Tax Law Methodological Remarks. Ekkehart Reimer I.Methodology (cont’d)  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 ideas” about the interpretation of EC law  integrating the ECJ in a network of highest courts which cooperate, share responsibility and authority  accelerating procedures before national courts, meet the demands of Art. 6 ECHR

. Sources and standards of the Acte Clair Doctrine in Direct Tax Law Methodological Remarks. Ekkehart Reimer I.Methodology (cont’d)  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?

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

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

. III.Separate Methods for the Separate Aspects of the Discussion? IV.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