The Impact Of European Legislation And Judgments Of The Court Of Justice Of The European Union In Tax Matters On The Case Law Of National Courts
Keywords:
CJEU; EU; tax lawsAbstract
Each Member State of the European Union has its tax system, which has been built up over decades, even centuries, long before the creation of the European Union.
While EU rules allow these particularities to persist, the heterogeneity of European tax systems, a legacy of history, and different political choices is now confronted with the reality of the development of international trade and capital mobility. There is therefore limited European competence in the field of taxation, implemented according to procedures that respect the national sovereignty of the Member States.
Adopting European directives is not the only lever for approximating Member States' legislation. Moreover, in addition to the 'positive integration' of national tax laws that European legislation can achieve, as it has done in the field of indirect taxation, national tax laws are subject to 'negative integration' through the case law of the Court of Justice of the European Union, which verifies the conformity of national tax laws with primary EU law, in particular the free movement of goods, persons, services and capital.
As regards the full effect of EU law, the CJEU has emphasized that in the national court-CJEU "balance of power", the role of the CJEU in interpreting EU law prevails. Thus, the CJEU has emphasized in particular the importance of the preliminary reference procedure provided for in Article 267 TFEU, as well as the fact that it is the Union court that has exclusive jurisdiction for the definitive interpretation of EU law and that, in exercising that jurisdiction, the CJEU specifies the extent of the principle of supremacy of Union law about the relevant provisions of that law, irrespective of the interpretation of provisions of national law, or of provisions of Union law held by a national court, which does not correspond to the interpretation of the CJEU.
References
Aproval of 14 December 1991, SEE I, 1/91, EU:C:1991:490, paragraph 61; judgment of 28 May 1995, Kleinwort Benson v City of Glasgow District Council, C-346/93, EU:C:1995:85, paragraph 24; order of 26 April 2002, VIS Farmaceutici, C-454/00, EU:C:2002:271, paragraph 23; order of 2 May 2002, Orsini, C-129/01, EU:C:2002:278, paragraph 22.Council Directive (EU) 2016/2258 of 6 December 2016 amending Directive 2011/16/EU as regards access by tax authorities to information in the field of anti-money laundering, OJ L 342, 16.12.2016.
Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of tax matters regarding reportable cross-border arrangements, OJ L 139, 5.6.2018.
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ L 347, 11.12.2006.
Council Directive 2014/107/107 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation, OJ L 359, 16.12.2014.
Council Directive 2015/2376 of 8 December 2015 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation, OJ L 332, 18.12.2015.
Cristina-Maria Florescu, Note la Hotărârea CJUE din 21 decembrie 2021 pronunţată în cauzele conexate Euro Box Promotion și alții. Soluţionarea litigiilor de contencios administrativ şi fiscal: între obligativitatea deciziilor Curţii Constituţionale a României şi supremaţia dreptului UE/Notes to the Judgment of the CJEU of 21 December 2021 delivered in the joined cases Euro Box Promotion and others. Resolving administrative and tax disputes: between the binding nature of the decisions of the Constitutional Court of Romania and the supremacy of EU law, 2021, https://www.juridice.ro/763772/note-la-hotararea-cjue-din-21-decembrie-2021-pronuntata-in-cauzele-conexate-euro-box-promotion-si-altii-solutionarea-litigiilor-de-contencios-administrativ-si-fiscal-intre-obligativitatea-deciz.html .
Daniel Mihail Sandru, Caracterul obligatoriu al deciziei preliminare pronunţate de Curtea de Justiţie a Uniunii Europene pentru instanţe şi autorităţi naţionale/ The binding nature of the preliminary ruling issued by the Court of Justice of the European Union for national courts and authorities, „Revista Română de Drept European (Comunitar)/ Romanian Journal of European (Community) Law", n 4, 31 Dcember 2019.
Decision of the Constitutional Court no. 211 of April 9, 2019 regarding the exception of unconstitutionality of the provisions of art. 27 of the Code of Civil Procedure as interpreted by Decision no. 52 of June 18, 2018, pronounced by the High Court of Justice of the Republic of Moldova - Panel for resolving certain issues of law and art. XVIII paragraph (2) of Law no. 2/2013 on certain measures to relieve the burden on courts, as well as for preparing the implementation of Law no. 134/2010 on the Code of Civil Procedure
Directive 2016/881 of 25 May 2016 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of tax matters, OJ L 146, 03.06.2016.
Judgment of 27 March 1963, Da Costa en Schaake NV and Others, 28-30/62, EU:C:1963:6, ECR 1963, pp. 61, 76; Judgment of 18 October 1990, Dzodzi, C-297/88 and C-197/89, EU:C:1990:360, paragraph 38. Judgment of 27 March 1980, Denkavit Italiana, 61/79, EU:C:1980:100, paragraph 16; Judgment of 10 February 2000, Deutsche Telekom, C-50/96, EU:C:2000:72, paragraph 43; judgment of 6 March 2007, Meilicke and Others, C-292/04, EU:C:2007:132, paragraph 34.
Judgment of 26.02.1986 delivered by the Court of Justice of the European Union in Case 152/84, M. H. Marshall and Southampton and South-West Hampshire Area Health Authority (Teaching).
High Court of Justice of the Republic of Moldova – Administrative and Fiscal Litigation Section, Decision no. 1205/20.03.2018.
ICCJ, administrative and fiscal litigation section, Decision no. 1531/18.05.2016(www.legalis.ro); ÎCCJ, administrative and fiscal litigation section, civil Decision no. 5995/21.02.2017( www.legalis.ro); Cluj Court of Appeal, IIIrd administrative and fiscal litigation section, Decision no. 536/15.04.3019 (Bulletin of Courts of Appeal no. 6-7/2019; Oradea Court of Appeal, IInd civil, administrative and fiscal litigation section, Decision no. 397/03.05.2014 (www.rolii.ro)
OJ L 265, 29 September 2012, p. 1, as amended on 18 June 2013 (OJ L 173, 26 June 2013, p. 65), on 19 July 2016 (OJ L 217, 12 August 2016, p. 69) and on 9 April 2019 (OJ L 111, 25 April 2019, p. 73). The consolidated version of the Rules is available at https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-10/rp_ro.pdf .
Judgment of 17 December 1970, Internationale Handelsgesellschaft, 11/70, ECR 1125, paragraph 3.
Morten Broberg, Niels Fenger, Procedura trimiterii preliminare la Curtea Europeană de Justiţie/Preliminary reference procedure to the European Court of Justice, Ed. Wolters Kluwer România, Bucureşti, 2010, p. 406.
Raluca Bercea, Dorina Doroga, Dreptul Uniunii Europene in hotărâri şi cazuri practice, Ediţia a II-a, revăzută şi adăugită/European Union Law in Decisions and Practical Cases, Second Edition, revised and added, Editura Universul Juridic, București, 2019, p.80 şi urm.
S.-G. Barbu, C.-M. Florescu, The Relationship between EU Law and National Constitutional Law in the Field of Fundamental Rights, paper presented at the Current Issues within EU and EU Member States: Converging and Diverging Legal Trends, Brașov, November 2021.
Downloads
Published
Issue
Section
License
Copyright (c) 2022 Diana Pătrașcu Duma (Author)
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
