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Access of the taxpayers


As Prof. dr. Pasquale Pistone wrote (European direct tax law: quo vadis?, 2008), “one should not forget that – except for the case of not-self-executing provisions of the EC Treaty – European law gives all EU nationals immediate rights, which receive a judicial effective protection, should there need be through the mechanisms of preliminary ruling, or of the infringement procedures. However, once the European Court of Justice has interpreted the problem of compatibility with European fundamental freedoms, protection should become immediately available at the level of the national judge, who should disapply domestic rules of the kind that have been stroked down by the European Court of Justice.”

But the real life is stronger: “If we look at the origin of the preliminary ruling procedures, we’ll find out that some countries, like Germany and the Netherlands have regularly been referring cases to the European Court of Justice, others have done so more occasionally, but others – like in particular Italy, Ireland and Spain among the old Member States – have almost never done so. Different reasons may have given rise to this problem, which should however be seriously analysed, taking into account its repercussions on the degree of legal protection that taxpayers receive in such countries. Since none of these countries may have discovered the secret formula for complying with European law, the failure of judges to refer cases to the European judges increases the importance for national legislators to timely amend their statutes with a view to complying with the development of negative integration driven by the European Court of Justice and originating from other Member States. Likewise, the European Commission’s role to initiate infringement procedures becomes more important, especially when national legislators do not comply with the mentioned role.”


European Court of Justice’s
(hereinafter: the ECJ or the Court)  

The preliminary ruling procedure of Art. 234 EC Treaty implies
an indirect access of the taxpayers to the fundamental freedoms of the EC
Treaty. To what extent an effective access exists, and the degree of
homogeneous application of Community law within the European Union in 20
years of the ECJ case law on direct taxation were main questions.  

Acte Clair  

In essence, this means that if the meaning of a provision is clear, not open to ambiguity, then no question of interpretation arises. No requirement for interpretation equates with no requirement for a reference. Whilst it sounds very simple, Lord Widgery’s idea of what was clear in R v. Henn (1978) proved to be incorrect when a reference was made to the ECJ! In CILFIT, ‘so obvious as to leave no scope for any reasonable doubt’ meant that the national court must be convinced that ‘the matter is equally obvious to the courts of the other Member States and to the Court of Justice’ (para. 16).
The national courts would have a sound basis for their conviction if, in relation to the case in point, there was a ‘considerable and consistent line of case law’ already decided by the ECJ, per Lord Diplock in Garland v. British Rail Engineering Ltd. (1983). Thus, a version of acte clair approved in CILFIT has been adopted, for example, by the House of Lords.

According to article 234 EC, where a question of the interpretation of the EC Treaty, the validity and interpretation of acts of the institutions of the Community and of the European Central Bank, or the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide, “is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a MemberState against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” *42 The ECJ has emphasised the central importance of this procedure by stating that it seeks “to prevent a body of national case-law not in accord with the rules of community law from coming into existence in any MemberState”. *43 Article 234 EC provides for a tool of co-operation between the ECJ and the national judiciary in order to permit uniform development and application of EC law throughout the Community. The obligation of the court of last instance to make a reference provides a certain assurance for the parties that they will have an opportunity to present their arguments before the appropriate forum.

The obligation for courts of last instance to refer cases to the ECJ did not remain unconditional for long. In the 1963 Da Costad ecision, the ECJ had to take a practical approach in order to resolve a situation where article 234 EC could have led to ‘automatic’ references where the very same question had already been answered by the ECJ. *44 In this famous decision, the ECJ introduced a substantial limitation stating that

Although the third paragraph of [article 234] unreservedly requires courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law […] to refer to the Court every question of interpretation raised before them, the authority of an interpretation under [article 234] already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case. [emphasis added]

This doctrine, known as acte éclairé,relieved the courts of last instance from the duty to refer questions to the ECJ that have already been answered.

Whereas it is difficult to deny that at times, considering the prior case law of the ECJ, a reference would simply cause delay, it is equally difficult to deny that the exceptions have at times led cases being decided on the national level that would have needed interpretative guidance from the ECJ. The well-publicised Köbler case is just one example where resolving the case without a preliminary ruling led to an incorrect interpretation of Community law and ended up with the applicant being denied compensation to which he was rightfully entitled.

The CILFIT case (ECJ, 6 October 1982, case 283/81, Srl CILFIT and Gavardo SpA.) showed to what extent the CILFIT criteria and
existing ECJ case law on direct taxation can provide some pattern of conduct to
national courts (and also to the Member States’ tax administrations and
legislator) and some legal certainty to taxpayers.