中国财税法治网

Ex offi cio Application of EC Law by National Courts of Law in Tax Cases, Discretionary Authority or an Obligation?

来源:Admin5 作者:J.J. van Dam, J.A.R. 时间:2014-09-18 23:19

Individual taxpayers can make a direct appeal to Claw which is sufficiently precise and unconditional for national courts of law. However, if a taxpayer fails to make an appeal to a clear infringement of EC law during a court procedure, the question arises whether national court is authorized, or even obliged, to consider of its own motion whether a domestic tax  provision is incompatible with EC law. In this article the applicable Community procedural framework as developed by the ECJ is depicted, which frame-work can be considered as a minimum harmonization of the national procedural law provisions of the various Member States. Subsequently, the conditions under which a domestic court is obliged to apply EC law of its own initiative are discussed. For illustration purposes the Dutch procedural rules in tax cases are assessed within the Community procedural framework.

 

1. INTRODUCTION

EC law which is sufficiently precise and unconditional has direct effect and has priority over the domes-tic legislation of a Member State. 1 This category of Community law comprises inter alia of the EC Treaty freedoms. 2 Consequently, the application of such EC law is not dependent on any intervention by the Member States’ legislature or by an institution of the EU. In case of an infringement of sufficiently precise and conditional EC law, tax payers can directly invoke the relevant EC law provisions for their local (tax) administration and in national courts of law.

However, given the complexity of both domestic and Community legislation it is not imaginary that during legal proceedings a tax payer does not make an appeal to EC law, despite the existence of a clear infringement of a certain EC law provision. 3 In such case the question arises whether a national court is authorized, or even obliged, to consider of its own motion whether a measure of domestic law is compatible with EC law. The raising of its own motion by a in this respect. Until recently the relevant case law of the ECJ was quite ambiguous and it was therefore challenging to produce a defined set of rules which could be used in general to settle this issue for every specific situation. However, in its judgment of 7 June 2007 in the Van der Weerd case the ECJ produced a clear ruling on when a national court is obliged to apply EC law ex officio. In this case the ECJ followed the opinion of Advocate General Opiates Madura, and by doing so clarified the consistency between its previous rulings in this respect. Even more recently, the ECJ added another dimension to its case law, by ruling in its judgment of 25 November 2008 that Community law cannot oblige a national court to apply EC law of its own motion, where this would cause the individual bringing the legal action to be placed in ales favorable position than if he had not brought that action to court.

 In the writers’ opinion the ex officio application of Community law by domestic courts of tax law has thus far received too little attention by scholars and authors in the field of EC law. For that reason, and given its impact in practice, in this article the ex officio application of EC law by domestic tax courts will b discussed in detail. Before we describe the relevant case law of the ECJ, and the developments there in during the past years, we will provide a general outline of the procedural framework as developed by the ECJ governing actions for safeguarding rights which individuals derive from Community law. After discussing the related ECJ’s case law we will describe the general rules regarding the application of EC law on the domestic court’s own initiative. Finally, to illustrate this general set of rules, the ex officio application of Community law by the Dutch tax courts will be summarized.

2. THE EUROPEAN PROCEDURAL FRAMEWORK FORTHE EX OFFICIO APPLICATION OF EC LAW2.1.

The general testing framework Principle of Procedural Autonomy. Although Community law has an autonomous character,5 has direct effect for the individual vis-à-vis the Member State,6 and has priority over the national legislation of a MemberState,7 it depends in the absence of Community procedural rules on the domestic law provisions of each Member State to become effective in the domestic legal systems. Since there are almost no Community procedural rules, the domestic procedural rules are applicable to legal actions which are based on EC law. Accordingly, in the absence of Community procedural rules, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which are derived from the direct effect of EC law.8 Based on this ‘principle of procedural autonomy’ domestic courts, when they apply EC law, may do so pursuant to their own national procedural rules.

Limitations to the Principle of Procedural Autonomy. However, this principle of procedural autonomy does not completely exempt national procedural rules from requirements imposed by Community law. In the landmark cases Rewet and Comet the ECJ formulated for the first time the requirements which have tube fulfilled by the domestic legal systems.9 First, the domestic procedural rules applicable to claims based on Community law may not be less favorable than those governing claims based on domestic law. In both situations the same procedural rules must apply. This requirement is known as the non discrimination principle or the principle of equivalence. Secondly, the principle of effectiveness entails that domestic procedural rules may not render it virtually impossible or excessively difficult to exercise the rights which can be derived from EC law.10 The principle of effectiveness requires that the conferral of rights by Claw must be meaningful in practice.



When determining whether a national procedural provision renders application of Community law virtually impossible or excessively difficult, a comparison needs to be made between the importance of the effectiveness of EC law and the justified principles of the domestic legal system. For that purpose, it must be analyzed by reference to the role of that national procedural provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defense, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.11 As such, the complete factual and legal context needs to be taken into account when assessing a specificcase.12 The comparison between the effectiveness of Community law and the justified principles which form the foundation of the domestic legal system is also known as the ‘procedural rule of reason’.

The principles of equivalence and effectiveness are cumulative minimum requirements. A domestic procedural provision is in line with Community law if it meets both the conditions put forward by the principle of equivalence and the conditions put forward by the principle of effectiveness. Together these two principles form the European testing framework for provisions of national procedural law. This testing framework is in fact a form of European minimum harmonization of the national procedural law provisions of the various Member States. It results in a guaranteed minimum standard of legal protection for rights which can be derived from EC law, and an assurance that the procedural treatment of claims based on EC law is not inferior to that applicable to claims based on domestic law.13Principle of Effective Judicial Protection. Besides the principles of equivalence and effectiveness the ECJcommonly also applies the principle of effective judicialprotection.14 This is a positive standard, contrary to the negative standard (e.g., the limitations) as expressed when applying of the principles of equivalence and effectiveness. Under the principle of effective judicial protection the domestic procedural law provisions need to ensure the effectiveness and full effect of the EC law. Application of this positive variation of the principle of effectiveness resulted numerous times in the ECJ creating new legal remedies which did not existed within the domestic legal system, this to guarantee the full effect of Communitylaw.15

 

2.2. Case law of the ECJ in relation to the exoffi coos application of EC law: fragmented oar cohesive line of decisions?

The general testing framework described in the previous paragraph may appear reasonably straightforward. However, until recently the application of this testing framework to the ex officio application of Community law was quite ambiguous. This was the result of aeries of somewhat, at first sight, confusing, or even contradictory decisions of the ECJ. Below the relevant case law of the ECJ is described analogously.

2.2.1. The Van Schijndel and Peterbroeck cases

On 14 December 1995 the ECJ had to rule in two cases, both in which the main question was whether it was in line with EC law that the domestic courting question could not consider of its own motion whether a measure of domestic law was compatible with EC law.16 Though the key issue was the same in these two cases, the outcome of these cases wasdifferently.The Van Schijndel Case. In 1978 the Dutch physiotherapists ‘profession had set up the Pension Fund Foundation for Physiotherapists. This Pension Fund was compulsory for physiotherapists carrying on their activity in the Netherlands. Mr. Van Schijndel, who exercised the profession of physiotherapist in the Netherlands, applied for an exemption from the compulsory membership of the Pension Fund. This request was, however, denied by the Pension Fund. Mr. VanSchijndel challenged the decision of the Pension Fundfor a Dutch court of civil law. His claim was purely based on arguments of domestic law. The Lower Court rejected the claim of Mr. Van Schijndel. Subsequently Van Schijndel appealed for the Dutch Supreme Court. For the first time in the proceedings he contended in particular that the Lower Court should have considered of its own motion the question of the compatibility of compulsory Pension Fund membership with Community law (Article 81 EC Treaty regarding the Community competition rules).

Under Dutch civil law a plea incrassation for the Supreme Court by its nature excludes new arguments unless on pure points of law, that is to say that they do not require an examination of facts. In support of its plea in cassation Mr. Van Schijndel relied on various facts and circumstances which were not established by the Lower Court. Therefore the Dutch Supreme Court could not investigate itself whether the compulsory Pension Fund membership was an infringement of EC law. Contrary to the Supreme Court Dutch Lower Court can raise points of law, if necessary, of its own motion. However, the principle of judicial passivity in cases involving civil rights and obligations freely entered into by the party’s entails that additional pleas on points of law cannot require courts to go beyond the ambit of the dispute defined by the parties themselves nor to rely on factor circumstances other than those on which claims based. The Dutch Supreme Court therefore decided to stay proceedings and referred to the ECJ for a preliminary ruling. The Supreme Court asked whether the Dutch Lower Court was obliged to consider obits own motion whether a measure of domestic law incompatible with EC law, even where the party to the proceedings with an interest in application of those provisions has not relied upon them.

 

The ECJ judged that where, by virtue of domestic law, courts must raise of their own motion points of law based on binding domestic rules which have-not been raised by the parties, such an obligation also exists where binding rules of EC law are concerned. This is the general application of the principle of equivalence to a domestic procedural rule as outlined in the previous paragraph, and as frequently applied by the ECJ in numerous cases. However, in this judgment the ECJ stretched the scope of this principle even further.17 The ECJ stated that if a national court has discretionary authority to apply domestic law obits own motion, it is transformed into an obligation if it concerns EC law. Hence, a domestic discretionary power to apply law ex officio means an obligation from an EC law perspective.

 

In the case at hand the Lower Court was not entitled to apply of its own motion any law provision whatsoever, irrespective of the fact if it concerned domestic or Community law. If it would do so then the court would have to abandon the passive role assigned toot by going beyond the ambit of the dispute defined by the parties themselves and/or by relying on facts and circumstances other than those on which have been brought forward by the party to the proceedings. Under these circumstances the ECJ ruled that the principle of equivalence was not infringed by the Lower Court.

Subsequently the ECJ assessed whether the Dutch procedural rule was in accordance with the principle of effectiveness. The inability to apply law provisioned officio outside the ambit of the dispute does limit the possibility for litigants to effectuate their Community rights. As such, an infringement of the principle of effectiveness seems to be present. However, based on the procedural rule of reason the importance of the effectiveness of EC law has to be compared with the principles of the domestic judicial system. Regarding the inability of the Dutch Lower Court to apply law of its own motion outside the scope of the dispute, the principle of judicial passivity and the autonomy of parties involved could justify the limitation of the effectiveness of Community law. Moreover because these principles safeguard the rights of the defenseman they ensure proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas ex officio. Under these circumstances the ECJ ruled that the Dutch domestic procedural rules ware not in breach of the principle of effectiveness. The ECJ therefore decided that the rules of Community law do not require that the Dutch Lower Court applied EC law of its own motion.18The Peterbroeck Case. In the Belgian Peterbroeck case19a Belgian procedural tax provision was in question, which provision determined that pleas which had not been raised by the taxpayer in its objection or considered of his own motion by the tax administration could be raised by the appellant taxpayer either in the appeal document or by notice in writing to court. However, the possibility to raise new pleas with the court was subject to a limitation period of sixty days with effect from the lodging by the tax administration of a certified true copy of the contested decision together withal the documents relating to the taxpayer’s objection. Under Belgian case law a plea is considered to be new for the purposes if it raises for the first time an issue which in its object, nature or legal basis differs from those already raised during the objection phase. After the sixty day time limit the taxpayer could no longer successfully raise a new plea nor could the court raise such a new plea of its motion. In this case Peterbroeckargued for the first time during the court procedure that the applicable domestic tax rules (which resulted in a higher taxation for a non-resident taxpayer compared to a resident taxpayer) constituted a breach of Community law. Peterbroeck did so after the period of sixty days already had elapsed. The national court asked the preliminary question to the ECJ whether the Belgian limitation which prevented the national court from considering of its own motion whether a measure of domestic law is compatible with a provision of Community law when the latter provision has not been invoked by the litigant within a certain period, is in line with EC law.

When assessing the compatibility of the Belgian provision with the principle of effectiveness the ECJrefers to certain specific features of the Belgian procedure in question. Firstly, the referring court is the first court which can make a reference to the ECJ. Secondly, in this case the period during which new pleas could be raised by the appellant had expired by the time the court held its hearing, so that the court did not have the possibility of considering the question of compatibility with Community law. Thirdly, no other national court or tribunal in subsequent proceedings was allowed to consider of its own motion the question of the compatibility of a national measure withes law. Under these circumstances the ECJ ruled that Belgian procedural rule in question did not appear to be reasonably justifiable by principles such as the requirement of legal certainty or the proper conductor procedure. Therefore the ECJ decided that the domestic procedural rule, whose effect was to prevent the national court from considering of its own motion whether a measure of domestic law is compatible with a provision of Community law, constituted an infringement of EC law.

From the Van Schijndel and Peterbroeck cases it seems to follow that as a general rule a domestic courts obliged to apply Community law provisions of its own motion if it has the discretionary authority or obligation to do so with respect to comparable provisions of domestic law. If the national court has no authority to apply law of its own motion then it is still required to consider of its own motion whether admeasure of domestic law is compatible with a provision of Community law when this is necessary to safeguard the effectiveness of EC law.20 However, in more recent case law the ECJ seemed to deviate from this general rule. In the next paragraph.

2.2.2. Ex officio application of EC law to protectconsumersIn a number of cases the ECJ has based the authority for domestic courts to apply EC law of their own motion on the necessitate for additional protection of the rights which consumers derive from certain ECDirectives. In these specific cases the ECJ considers the ex officio application of EC law an appropriate method to safeguard the objective of these Directives. It concerns the cases Océano, 21 Cofidis22 and MostazaClaro23 which all cover Directive 93/13/EEG24 regarding unfair terms in consumer contracts. Recently the Ramp ion and Godard case is added to this list.25The latter case concerns the application of Directive87/102/EEC relating to consumer credit.26 In thermion and Godard case the aforementioned ‘consumer protection case law’ is summarized as follows(italics authors):

 

61. at paragraph 26 of Ocean Group Editorial and SalvatEditores,

the Court held that the aim of Article 6 of Directive93/13, which requires Member States to provide that unfair contract terms are not to be binding on the consumer, could not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. In disputes where the amounts involved are often small, the lawyers’ fees maybe higher than the amount at stake, which may deter the consumer from defending himself against the application of an unfair term? While it is true that, in a number of Member States, procedural rules enable individuals to defend themselves in such proceedings, there is a real risk that the consumer, particularly because of a lack of awareness, will not challenge the unfair nature of the term pleaded against him. It follows that effective consumer protection can be attained only if the national courts are given power to evaluate terms of this kind of their own motion.

62. Referring to that paragraph in Ocean Group Editorial and Sal vat Editors, the Court comfy rimed at paragraph 33of Coif dies that the power of the court to raise of its own motion the unfair nature of a contract term has been regarded as necessary for ensuring that the consumer enjoys effective protection, in view in particular of the real risk that he may be unaware of his rights or may encounter daffy cuties in exercising them (see also Case C-168/05 Mustafa Claro [2006]ECR I-10421, paragraph 28).

All these cases concerned a specific Directive which provided consumers with additional legal protection in the relation with respectively suppliers of consumer products and providers of consumer credit. Especially in these relationships the consumer usually has a weak negotiating position and has a shortfall with respect to the relevant knowledge and information. The purpose of the respective Directive – governing additional consumer protection – can only be effectively maintained if the national court of law has theauthority27 to apply of its own motion the provisions of those Directives.

In these consumer protection cases the ECJ does not examine the application of the principle of equivalence. Furthermore, the well-balanced procedural rule of reason was not applied by the ECJ. The ECJrefrained from a comparison between the principle of effectiveness and the justified principles of the domestic legal system. This is quite remarkable, since such comparison was decisive in the Van Schijndel andPeterbroeck cases. No reference whatsoever is made to these cases in the consumer protection cases

.Although the ECJ seems to suggest that the authority to apply Community law ex officio originates directly from the respective Directive, it can in the authors’ view also be considered as a very strict application of the principle of effectiveness. After all, the decisions of the ECJ are based on the effectiveness of the Directives. Without ex officio application offer law the consumers could not effectuate the rights granted to them by the Directives. In addition this line of case law can also be considered to result from the principle of effective judicial protection. The purpose of the respective Directive – offering additional legal protection to consumers – could only be achieved ineffective judicial protection is present. Whatever the exact ground is on which the ECJ founds the ex officioapplication of EC law, it is clear that these cases represent extremely specific situations whereby the protection of the weaker party is leading.

2.2.3. Does community law contain provisions of ‘public policy’? In the previous paragraph we discussed the apparent breach in the consumer protection cases with the general rules which follow from the Van Schijndel andPeterbroeck cases. In addition, the question could braised whether Community law is (partially) of such crucial importance that they should be regarded as rules of ‘public policy’ which require domestic courts to apply them of their own motion. There is no provision of EC law which states that the entire Community law is of public policy, and which should therefore be applied by domestic court of their own motion. Thatch law in general is not of public policy is crystal clear. However, based on two particular cases of the ECJ it could be questioned whether certain specific EC law provisions are of such importance, that they should be applied ex officio by national courts irrespective of the applicable domestic procedural rules. This question arose for the first time in the Dutch Eco Swiss case.28The Eco Swiss Case. Eco Swiss China Time Ltd and Benetton International NV had concluded a licensing agreement for a period of eight years. Under that agreement, Benetton granted Eco Swiss the right to manufacture watches and clocks with a Benetton label. The agreement provided that all disputes or differences arising between the parties are to be settled by arbitration in conformity with the rules of the Netherlands Institute of Arbitrators and that the arbitrators appointed are to apply Dutch law. After five years Benetton wanted to terminate the agreement three years before the end of the period originally provided for. Arbitration proceedings were instituted between Benetton and Eco Swiss in relation to the termination of the agreement and the determination of compensation for the damage suffered by Eco Swiss. The arbitrators ordered Benetton to pay a considerable amount as compensation to Eco Swiss.

At a later stage Benetton applied to the Dutch Lower Court for annulment of the decision of the arbitrator son the ground, inter alia, that the licensing agreement was in conflict with Article 81 EC Treaty (a mandatory rule of EC competition law). This potential infringement of EC law was not raised by either the parties or the arbitrators during the arbitration proceedings. In this respect it has to be noted that the arbitrators were not at liberty to apply Community law provisions of their own motion, if that would mean that they would go beyond the ambit of the proceedings. According tithe Dutch Code of Civil Procedure a party may claim annulment of an arbitration decision only on a limited number of grounds, one ground being that awards contrary to public policy. This generally does not cover the mere fact that through the terms or enforcement of an arbitration decision no effect is given to prohibition lay down by EC competition law. Finally it was the Dutch Supreme Court who asked the ECJ for a preliminary ruling.

The Supreme Court asked to what extent the ECJ’s ruling in the Van Schijndel case was applicable by analogy to proceedings for an arbitration tribunal. Furthermore, if so, whether a domestic court must, in conflict with Dutch procedural law, allow a claim for annulment of the decision of the arbitration tribunal if the claim otherwise complies with the statutory requirements. The ECJ indicated that Article 81 Entreaty constitutes a fundamental provision which inessential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market. In the circumstances and the context of the case at hand the ECJ ruled that it follows that where domestic procedural rules require national court to grant an application for annulment of an arbitration decision where such an application is founded on failure to observe national rules of public policy, it must also grant such an application where its founded on failure to comply with the prohibition laid down in Article 81 EC Treaty.

How the Eco Swiss case exactly needed to be interpreted was uncertain for a very long time. The ECJ’s decision seemed to be specified towards the annulment of arbitration decisions. An arbitration tribunal constituted pursuant to an agreement under private law is not to be regarded as a court or tribunal for the purposes of Article 234 EC Treaty and cannot therefore make references to the ECJ for a preliminary ruling.29 The solution which the ECJ presented in theca Swiss case resulted in the possibility that in the subsequent proceedings the national court could still ask the ECJ for a preliminary ruling. By doing so theca safeguarded the consistent interpretation of Claw. The Eco Swiss case did not answer the question whether Article 81 EC Treaty was in general of public policy, which article the national court has to apply on its own motion at all times. An affirmative answer to that question would be in conflict with the VanSchijndel case, since in that case the ECJ ruled that the national court was not obliged to raise of its own motion the potential infringement of the domestic provision with Article 81 EC Treaty. Surprisingly theca in fact did give a positive answer to this questioning the recent Manfred case.30 in an overabundant consideration the ECJ stated the following:

31. Moreover, it should be recalled that Articles 81 EC and 82EC are a matter of public policy which must be automatically applied by national courts (see, to that effect, Case C-126/97Eco Swiss [1999] ECR I-3055, paragraphs 39 and 40).

Besides the fact that this consideration was not necessary to settle the dispute in question, the following comments to this consideration of the ECJ can be put forward. First, in the Eco Swiss case only Article 81EC Treaty was in question. Article 82 EC Treaty was not. Secondly, the Eco Swiss case did not concerned the application of its own motion of Article 81 Entreaty by a national court, but it rather concerned the question whether this article was of public policy in the sense of the Dutch Code of Civil Procedure and if so, whether it correspondingly could result in the annulment of an arbitration decision. Thirdly, theManfredi case relates to Italian domestic legislation whilst in the Eco Swiss case the Dutch domestic law was in question. As such ‘public policy’ in an Italian legal context does not necessarily be comparable to ‘rules of public policy’ in a Dutch legal context. And last but not least, the ECJ decided in the VanSchijndel case that Article 81 EC Treaty did not have to be applied by the court of its own motion. However, if the ECJ has consciously drafted the aforementioned consideration in the Manfred case, with the intention that national courts must indeed apply Articles81 and 82 EC Treaty of their own motion, then the domestic administrative (tax) courts are obliged to apply these EC law provisions ex officio. It cannot be precluded that this is the conclusion that in fact has to be derived from the Manfred case.

2.2.4. The Van Der Weerd case: clarity at last

As follows from the above paragraphs the application of the principles of equivalence and effectiveness has resulted in a somewhat disorderly series of decisions. However, in the Van Der Weerd case Advocate General Poiares Madura successfully depicted the cohesion between the various decisions in this respect.31Facts of the Case at Hand. The proceedings before the Dutch Administrative Court for Trade and Industry arose as a consequence of the outbreak of foot-and-mouth disease in 2001, which affected a number of Member States. In response to that outbreak, the authorities in the Netherlands took measures to avert further spreading of the disease. Those measures included the preventive slaughter of cloven-hoofed animals on holdings located in the vicinity of a contaminated holding. Based on the results of tests performed by the laboratory ID-Lely tad BV, the National Livestock and Meat Inspectorate concluded that the holdings of the applicants in the main proceedings (including Van Der Weerd) were in the vicinity of contaminated holding. The Inspectorate therefore ordered the preventive slaughter of the animals on the applicants’ holdings. Van Der Weerd and others contested the lawfulness of the decisions to slaughter their animals on several domestic grounds. The referring court rejected those grounds. However, the applicants in a series of similar cases also pending before the same court had challenged the lawfulness of similar decisions on the further ground that ID-Lely tad laboratory was not mentioned in Annex to Directive 85/511.32 This argument prompted the preliminary reference that gave rise to the ruling in Doter and Others.33

In this respect it has to be noted that Article 8:69of the Dutch General act on administrative judicial procedure provides that a Dutch administrative (tax) court is to give its ruling solely on the basis of the issues which are put before it. Hence, a Dutch administrative (tax) court is not authorized to apply law of its own motion if this would entail that the court has to go beyond the ambit of the proceedings.34 Although this article also states that the courts to supplement the pleas in law of its own motion that provision means, however, that the court is tout the objections made by the applicant against the contested administrative measure into legal form. A distinction falls to be made between that duty to supplement those pleas in law of the court’s own motion and the analysis which the court is required to make on its own initiative. Such an analysis is required only in cases involving the application of rules of public policy, that is to say rules relating to the powers of administrative bodies and those of the court itself, and provisions as to admissibility. Those rules lie at the very basis of the national procedures, since they define the conditions in which those procedures maybe initiated and the authorities which have the power, within their area of responsibility, to determine the extent of the rights and obligations of individuals. In the Van Der Weerd case the referring court asked the question whether Community law requires the domestic courts of their own motion to conduct an examination, that is to say, an examination of grounds which are outside the terms of the dispute, by reference to criteria based on Directive 85/511.

The Opinion of the Advocate General. In his opinion tithe Van Der Weerd case AG Opiates Madura clarifies the judgments given by the ECJ thus far in the field of the ex officio application of Community law. The Agnates that both the Van Schijndel and Peterbroeck cases turned on the principle of effectiveness. The question whether in practice it is excessively difficult to exercise right can be a matter of a sliding scale. The existence of this sliding scale explains why the Van Schijndel andPeterbroeck cases resulted in a different outcome on the basis of only a few factors. Furthermore, AG Opiates Madura points out that there are circumstances in which it is apparent that, without the possibility for a domestic court to raise a plea based on EC law of its own motion, it would be extremely difficult for parties to obtain judicial protection where Community law grants them a right. That was the situation in the Ocean and Confides cases. According to their in the ‘consumer protection cases’ the ECJ interpreted the Directives in harmony with the principle of effectiveness

With respect to the Eco Swiss case the AG states that in this case the ECJ has not declared in general that Article 81 EC Treaty is of public policy and thus requires national courts to apply this provision of their own motion. According to AG Opiates Maduro Eco Swiss belongs, first and foremost, to the class of cases in which the ECJ applied the principle of equivalence. The ECJ held that the national court had to grant the application for annulment of the arbitration decision if it considered that the decision was contrary to Article 81 EC Treaty and if national rules of procedure required it to grant an application for annulment founded on failure to observe national rules of public policy. As such, in the Eco Swiss case Article 81 EC Treaty had the same procedural statuses domestic provisions of ‘public policy’.

Finally, the AG summarized the relevant case laws follows: the principle of effectiveness does not impose a duty on national courts to raise pleas based on Community law of their own motion, except in circumstances where this would be necessary in order to ensure that judicial protection is available where Community law confers a right. The principle of effectiveness does, however, not impose a duty on domestic courts to raise a plea based on EC law ex officio, even when the plea would concern a provision of fundamental importance to the Community legal order. Though, this principle does require that parties be given a genuine opportunity to raise a plea based on EC law before a domestic court. Otherwise, the national court must have the authority to raise that plea of its own motion.35

Judgment of the ECJ. In the Van Der Weerd case the ECJ follows the lines as drawn up by AG Opiates Madurai its opinion.36 According to the ECJ the provisions of the Directive in question do not occupy a similar position within the Community legal order as the national rules of public policy within the Dutch legal order. As a result, the application of the principle of equivalence does not mean that the national court is obliged to conduct of its own motion an examination of the validity of the administrative measures in question behaving regard to criteria based on Directive 85/511.37In paragraph 38 of its judgment the ECJ notes that the taking into consideration by the national court of its own motion of issues not put forward by the parties to the main proceedings is, as in the Van Schijndel case, capable of infringing the rights of the defense and the proper conduct of proceedings and, in particular, of leading to the delays inherent in the examination of new pleas. Hence, the ECJ applies the procedural rule of reason in this case. The ECJ comes to the conclusion that since the appellants in the main proceedings have had a genuine opportunity to raise pleas based on Directive 85/511, the principle of effectiveness does not require the national court to examine of its own emotional plea based on provisions of that Directive.

 

Just as the Advocate General also the ECJ elaborates in detail on its own case law regarding the ex officio application of EC law.38 The relevant considerations are the following (italics authors):

39. That [the] result [in this case cannot lead to a different conclusion from that reached by the Court in the Van Schijndel case] is not called into question by the case-law in Peterbroeck; Case C-126/97 Eco Swiss [1999] ECR I-3055;Joined Cases C-240/98 to C-244/98 Ocean Group Editorial and Sal vat Editors [2000] ECR I-4941); Case C-473/00Cofi dies [2002] ECR I-10875; and Case C-168/05 Mustafa Claro [2006] ECR I-10421.

40. The case-law cited in the previous paragraph is not relevant in the present case. One of those cases can be distinguished by reason of circumstances peculiar to the dispute, which led to the applicant in the main proceedings being deprived of the opportunity to rely effectively on the incompatibility of a domestic provision with Community law (see Peterbroeck, paragraph 16 et seq.). In other cases, the Court’s if endings are justify end by the need to ensure that consumers are given the effective protection which Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) seeks to achieve (see Ocean Group Editorial and Sal vat Editors, paragraph 26;Cofi dies, paragraph 33; and Mustafa Claro, paragraph 29).Moreover, that case-law cannot be properly invoked in an analysis of an infringement of the principle of effectiveness, since it seeks to determine whether equal treatment is given to pleas based on national law and those based on Community law (see Eco Swiss, paragraph 37).

With the decision of the ECJ in the Van Der Seedcase it seems that at last there is clarity on the circumstances under which a domestic administrative (tax) court has to apply Community law of its own motion. The general testing framework as described in paragraph 2.1 above is regularly applicable to the application of EC law ex officio. The principle of equivalence requires that the national courts must of their own motion raise claims based on Community law, provided that these provisions have a comparable position within the Community legal system as domestic rules of public policy have in the domestic legal system. The principle of effectiveness does not require a national court to apply EC law ex officious the national court is under the domestic rules not authorized to do so, insofar this limitation to apply law of its own motion is justified by principles of the domestic judicial system. This is only different if the litigant did not had a real opportunity to raise pleas based on EC law (see Peterbroeck), or if the ex officio application of law is the only method to safeguard the effectiveness of EC law (see Ocean, Confides and Mustafa Claro).

In the Van Der Weerd case the ECJ creates some confusion when applying the principle of equivalence. After the ECJ has established that in this case the principle of equivalence does not require the national court to apply the provisions of the Directives officio, the ECJ considers the following (italics authors):32. Moreover, were those provisions [of Directive 85/511] to form part of public health policy, they would have been put forward in the main proceedings essentially in order to take account of the private interests of individuals who had been the object of measures to control foot-and-mouth disease. This consideration appears to be overabundant, since it does not contribute to the final judgment of theECJ.39 still; the ECJ seems to suggest here, that the provisions of the Directive in question could be comparable to Dutch rules of public policy, if the plaintiff had made an appeal to these provisions in the general interest of society. What the exact purpose is of theca with this consideration is thus far ambiguous.

2.2.5. The Heemskerk and Scrap case

On 25 January 2000 Heemskerk and Schaap notified the local Dutch administration of the export of 600in-calf heifers to Morocco per vessel, for which they applied and obtained payment of an export refunding accordance with the applicable provisions of EClaw.40 The official veterinarian who checked the loading certified that the applicable conditions had been fulfilled.

During a check by the General Inspectorate it was concluded that the welfare conditions for bovine animals during transport had not been complied with and that the vessel had clearly been overloaded. Consequently, the local Dutch administration withdrew the export refund granted to Heemskerk and Schaapand called for repayment of the amounts already paid, plus 10%. The amount of the export refund tube recovered from Heemskerk and Schaap was calculated by the administration on the basis of the amount granted in respect of the number of excess animals transported, in proportion to the applicants’ participation in the operation as a whole. Heemskerk and Schaap appealed the decision of the administration for a national court of law. In support of their action, Heemskerk and Schaap relied on several pleas in law.

The domestic court questioned whether the amount of the export refund to be recovered was calculated in accordance with the applicable EC law. Moreover, the court was of the opinion that the amount to be recovered should not be calculated over the excess animals transported, but over all animals transported. Hence, the court suspected that in breach with EC law the amount which the administration wanted to recover was too low. Under Dutch administrative procedural (tax) law41 a national court may not apply law of its own motion, if this would entail that the court has Togo beyond the ambit of the proc



中国税法评论 | 中国财税法治论坛 | 中国政法大学财税法研究中心 | 中国税务律师论坛 | 联系我们 | 投稿