Judicial Cooperation and Legal Interpretation in European Union Tax Law

By van Brederode, Robert F. | Faulkner Law Review, Fall 2009 | Go to article overview

Judicial Cooperation and Legal Interpretation in European Union Tax Law


van Brederode, Robert F., Faulkner Law Review


I. INTRODUCTION

The relationship between European Community (EC or Community) law and the national laws of its member states is complicated. The treaties establishing the European Communities (2) have created a law system sui generis, i.e., separate from that of the individual member states, with its own terminology and underlying legal principles. (3) Community law is the common internal law of the member states rather than a law between the states, as is the case in traditional international law. Beyond the mere creation of mutual rights and duties between the states, as under traditional international law, Community law regulates the relation between the Community and its subjects, including member states and private and legal persons, and between these subjects amongst themselves. (4) As a distinctive legal order, Community law regulates the powers, rights, and obligations of the Community and its subjects. Community law also provides for the procedures required for determining, adjudicating, and sanctioning infringements of the law. (5)

Community law is not common law or civil law; therefore, legal principles and precedent developed under common or civil law have no direct bearing on Community law. (6) Even if the same legal terminology is used, the meaning is not necessarily the same. (7) According to established case law of the European Court of Justice (ECJ), Community law has priority over the national laws of the member states. (8) Primacy of Community law arises from the treaty itself, because realization of the objectives of the EC, particularly the establishment of a common market, would be illusory without the treaty. (9) Primacy in this context should not be read as hierarchy, but be understood in terms of substitution. When a country accedes to membership of the Community, it voluntarily limits its sovereign rights in favor of the Community it has decided to join.

In interstate legal transactions, interpretation of the agreement is a matter for the contracting parties. However, the actions of the contracting parties of the EC and their subjects are supervised by the ECJ. Therefore, the ECJ has a unique role. National courts operate within, and can rely on and refer to, their national legal tradition, but that was not the case at the European level. The ECJ had to create such a legal order from the texts of the treaties, while referencing general principles of law, such as good faith, legal certainty, equality, legitimate expectations, proportionality, (10) and abuse of rights. (11) These principles are derived directly from the treaties, or are common to the legal systems of the member states.

There also exists a cooperative relationship between Community law and the laws of the member states. Community law may refer to national law (12) and national law may supplement Community law (13) or serve to implement it. The extent to which Community law affects member state national laws depends on the legal instrument applied to shape Community policy. The most important legal instruments are regulations and directives. A regulation is directly applicable in every member state (i.e., it does not require any action by the national legislature), and it can convey rights to, and impose obligations on, the member states, their bodies, and individuals. (14) A directive, however, is only binding on each member state as to the result to be achieved, and leaves to the national authorities the choice of form and methods. (15)

Member states are required to loyally cooperate with Community law, a principle derived by the ECJ from article 10 of the EC treaty. This principle includes the legal obligation of the states to pay damages for losses incurred by individuals as a result of the non-compliance of a state with Community law. (16) Private parties may invoke directly effective provisions of Community law before their national courts, even in cases where national rules conflict with, or deviate from, Community law. …

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