EU VAT Treatment of Public Sector Bodies

Report
THE CONSTITUTIONAL ROLE OF THE COURT
OF JUSTICE IN THE INTERNAL MARKET
POST-HARMONISATION
– TAX EXCEPTIONALISM OR
JURISPRUDENTIAL CONSISTENCY?
RITA DE LA FERIA
(CENTRE FOR BUSINESS TAXATION, OXFORD
UNIVERSITY)
DIMITRIOS DOUKAS
(SCHOOL OF LAW, QUEEN’S UNIVERSITY BELFAST)
IECL SEMINAR
23 February 2011
OUTLINE
I. Hierarchy of Norms in the EU Legal Order
II. The Constitutional Role of the CJ
A. Absence of harmonisation
B. Partial and minimum harmonisation
C. Exhaustive harmonisation
III. Tax Exceptionalism or Jurisprudential Consistency?
A. Absence of harmonisation
B. Partial and minimum harmonisation
C. Exhaustive harmonisation
IV. The Sliding Scale of Judicial Review
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Hierarchy of Norms in the EU Legal Order
 Rules on hierarchy of norms in a legal system
 Metarules, which arrange the decisions concerning the
enactment of norms into a gradation of ranks or layers,
and determine their interplay
 Raison d'être: a plurality of sources of law for the
effective pursuit of the objectives of the legal system; this
plurality refers to the norm-setting power or mandate, the
institutions and procedures, the legal instruments, and
their temporal dimension
 Dual function: (a) resolve conflicts of norms; and
(b) serve as standards of interpretation
Constitutional Role of CJ PostHarmonisation
Hierarchy of Norms in the EU Legal Order
 Rules on hierarchy of norms in the EU legal order
 A shorthand of the EU order of competences given the
dynamic nature of the interplay of the sources of EU law
 An autonomous and integrated legal order, where the
supranational Union and the domestic legal systems are
closely intertwined
 Pluralist reading of the EU legal order
 No strict, single pyramidal hierarchy of norms
 Dynamic, multidimensional network of norms and lawmaking instances at EU and national level, which coexist without proper hierarchy
 EU legal order as “contrapuntal law” (Maduro)
Constitutional Role of CJ PostHarmonisation
Hierarchy of Norms in the EU Legal Order









Internal hierarchy of norms within the EU legal order
More straightforward despite lack of explicit provision
Indirect answer provided by EU primary law
Principle of conferral (Arts 5(2) and 13(2) TEU)
Role and power of the Court of Justice (Arts 19(1) TEU; 263,
267, 277, 340(2) TFEU)
Acts of EU institutions and law-making process (Arts 288 and
289-292 TFEU; 17 TEU)
EU primary law: at the apex of the internal hierarchy
Legal basis, framework and limits of secondary law (Viola)
Primacy of Treaties (and general principles of EU law):
invalidating effect AND standard of interpretation with regard to
conflicting secondary law (and national measures falling within
the scope of EU law)
Constitutional Role of CJ PostHarmonisation
The Constitutional Role of the Court of
Justice
 EU legal order based on the rule of law:
 Both the acts of the MS and those of the EU institutions
are subject to review by the Court of Justice as to their
compliance with the Treaty as the “basic constitutional
charter” and the general principles of EU law (including
fundamental rights)
 Right of individuals to effective judicial protection of the
rights they derive from the EU legal order
 Arts 2; and 19(1) TEU
 Les Verts; Zwartveld; Opinion 1/91 …
Constitutional Role of CJ PostHarmonisation
The Constitutional Role of the Court of
Justice
 General rules of interpretation of EU law
 Where a provision of (primary or secondary) EU law is open to
different interpretations, preference must be given to the construction
which ensures that the provision remains effective (Saarland)
 In case of divergent language versions, the provision must be
interpreted in the light of the purpose and the overall scheme of the
rules of which it forms part (Borgmann)
 Where a provision of secondary law is unambiguous or open to more
than one interpretation, preference must be given to the construction
which renders that provision consistent with the Treaty and the
general principles of EU law (Tretter; Rauh; Diageo)
 National courts and authorities must not only interpret national law in
line with the relevant secondary legislation but also avoid relying on
an interpretation of EU secondary law which would be in conflict with
the Treaty or the general principles of EU law (including the EU
fundamental rights) (Lindqvist)
Constitutional Role of CJ PostHarmonisation
Review of EU secondary law falling within
the scope of free movement (General)
 EU secondary law implementing or allowing derogations
from the free movement provisions
 Strict interpretation in the light of the Treaty
 But in reviewing compliance of secondary law with the
Treaty, primary emphasis on harmonious construction as
far as possible
 Only manifest excesses of the limits of EU harmonisation
powers are declared incompatible with the Treaty
 Obstacles to the free movement arising from secondary law
may be justified and proportionate (e.g. Denkavit; Meyhui)
 Exceptionally, invalidation if the relevant provisions cannot
be saved by way of a consistent interpretation (e.g. Lancry)
Constitutional Role of CJ PostHarmonisation
Absence of Harmonisation
 Absence of harmonisation or co-ordination at EU level
 Examination of national measures falling within the scope of
EU law in the light of primary law
 Sliding scale of judicial review
 The extent or intensity of the review of compliance with
primary law seems to vary, depending on the matter at
hand, ranging from a more rigid (e.g. cases concerning the
establishment and functioning of the internal market – see
proportionality of product requirements potentially
justified on grounds of consumer protection – or the
protection of fundamental rights) to a less intensive and
very deferential review (e.g. in matters of economic and
social policy choices – see State monopolies on gambling).
Constitutional Role of CJ PostHarmonisation
Partial and/or Minimum Harmonisation
 In areas of free movement subject to partial and/or
minimum harmonisation, the intensity of the CJ’s
constitutional review is less rigorous than in areas where
there is no EU harmonisation
 Interaction of primacy and pre-emption
 But the CJ’s review is generally more rigorous compared
to areas of free movement which have the subject of
exhaustive harmonisation
 Primary emphasis on pre-emption
Constitutional Role of CJ PostHarmonisation
Partial and/or Minimum Harmonisation
 In cases of minimum co-ordination (but not harmonisation):
very rigorous review (e.g. Social security)
 In fields of partial and / or minimum harmonisation:
relatively rigorous review of compliance of secondary law
(and national measures) with the Treaty
 Interpretation of secondary legislation in the light of
primary EU law
 Emphasis on harmonious construction of the provisions of
secondary law and liberal interpretation of the “free
movement clauses” of secondary legislation
BUT
Constitutional Role of CJ PostHarmonisation
Partial and/or Minimum Harmonisation
 Strict interpretation of any derogations or other provisions
of secondary legislation leaving MS a margin of discretion
to impose restrictions on free movement
 This ensures a similarly rigorous review of national
measures in the light of secondary law and primary law, or
only primary law
 Compliance of national measures with primary law= an
essential corollary to compliance with secondary law – this
may be explicitly be provided for in secondary legislation
 E.g. AVM services, Posted Workers, Various Goods ...
Constitutional Role of CJ PostHarmonisation
Partial and/or Minimum Harmonisation
 Case Study: Broadcasting and free movement of services
 TWF Directive 89/552 (predecessor to 2010/13)
 Interpretation of the Directive in the light of Art. 56 TFEU and the public interest
objectives that may justify restrictions on the free movement (KommAustria)
 MS discretion to impose stricter rules on broadcasters subject to their jurisdiction
provided the comply with the Treaty (essentially corollary to compliance with
secondary law) (Leclerc-Siplec, ARD)
 Interpretation beyond (and maybe against) the letter of secondary law
 Interpretation of Directive in the light of the Treaty to exceptionally allow MS to
impose stricter rules on TV advertising broadcast from broadcasters in other
MS provided that such rules do not involve secondary control in addition to the one
carried out by the transmitting MS and do not prevent retransmission as such of TV
broadcasts from other MS (De Agostini)
 If those conditions are satisfied, the Directive is not violated, and any resulting
restrictions must comply with Art. 56 TFEU
 If those conditions are not satisfied (because the Directive’s minimum standards
comprehensively cover the field), the Directive is breached
Constitutional Role of CJ PostHarmonisation
Partial and/or Minimum Harmonisation
 Case Study: Posted Workers and Free Movement of Persons
and Services
 Directive 96/71: nucleus of mandatory rules of minimum
protection in the host MS
 Interpretation of secondary law in the light of primary law; and
review of national law in the light of secondary law, or only
primary EU law
 The Member States’ discretion to determine material or
procedural aspects of the mandatory rules to be met by
employers posting workers must comply with the Directive (as
interpreted in the light of the Treaty) or, where appropriate, only
with Art. 56 TFEU (Laval; Wolff and Müller)
 Partial or minimum harmonisation notwithstanding, the
constitutional review remains relatively rigorous
Constitutional Role of CJ PostHarmonisation
Exhaustive Harmonisation
 Areas of free movement subject to exhaustive
harmonisation overall display the least rigorous level of
constitutional review
 But there are some exceptions that confirm the rule:
 The CJ may strictly construe secondary law in order to
rigorously examine national restrictions on the free
movement that might have been permitted by derogations
in secondary legislation
 Where harmonious construction is not possible in order to
save secondary law, the CJ may declare a provision of
secondary law invalid
Constitutional Role of CJ PostHarmonisation
Exhaustive Harmonisation
 Case Study: Common agricultural policy or common organisation of markets
and Free Movement of Goods
 Regulation 816/70 on common organisation of wine market
 Allowed MS to derogate from the Treaty (Arts 30 TFEU)
 Strict interpretation of such derogations
 The EU legislature’s extensive powers in the conduct of the CAP must be
exercised from the perspective of the unity of the internal market and exclude
any measures that compromise the abolition/prohibition of obstacles to the free
movement of goods
 Invalidation (Ramel) – Compare:
 Diageo (invalidation of part of Dir 75/106 on pre-packaged liquids insofar as it
involved an unjustifiable MEE) – BUT Contrast:
 Harmonious construction, where possible, in order to save secondary law (e.g.
Reg. 1699/82 on rum quotas (Com v Council (rum) or Regs. 1493/99 and
753/2002 on wine market (Schneider))
 Overall, not always a very rigorous review
Constitutional Role of CJ PostHarmonisation
Exhaustive Harmonisation
 Case Study: Trade marks and Free Movement of Goods
 Directive 89/104 (Art. 7 on the principle of exhaustion and
exceptions)
 Given the exhaustive harmonisation of the question of exhaustion of
trade marks, national measures must be assessed in the light of
secondary law only BUT
 Like any other secondary legislation, the Directive was interpreted in
the light of primary law (Art. 36 TFEU and the relevant CJ case-law)
 The Directive did not intend to restrict the scope of the CJ
case-law on Art. 36 TFEU and could not justify obstacles to the
free movement save within the limits set by the Treaty
 Strict interpretation of secondary law in order to declare national
restrictions incompatible with the Treaty (Bristol-Myers Squibb)
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 Tax harmonisation under Treaties
 Harmonisation of turnover taxes (VAT)
 Perceived as fundamental part of achieving common market
 From ECSC (Tinbergen Report) to EECT (Art 99)
 From First and Second VAT Directives (1967) to Sixth VAT
Directive (1977)
 From the abolition of fiscal frontiers (1992) to the current EU VAT
system
 Currently harmonising legislation is very extensive
 Legal basis: Art 113 TFEU
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 Harmonisation of direct taxes
 Debated as necessary step towards common market as early as
1962 (Neumark Report)
 No specific legal basis: fall-back rules Arts 114 and 115 TFEU [ex
Arts 95 and 94 ECT] used
 Legislative instruments of limited scope: Merger Directive (Directive
90/434/EEC); Parent-Subsidiary Directive (Directive 90/435/EEC);
Savings Directive (Directive 2003/48/EC); Interest-Royalties
Directive (Directive 2003/49/EC)
 Legislation deals with either specific problems arising from crossborder transactions, or cooperation between Member States’ tax
authorities
 Approving harmonising legislation still remains on policy agenda
BUT it has been the Court that has primarily filled legislative gap
through extensive case law
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 Level of existing tax harmonisation:
 Indirect taxation (VAT): Exhaustive harmonisation?
 Direct taxation: Partial harmonisation
 Role of Court in tax area:
 Indirect taxation (VAT): Extensive level of case-law (approx. 7% of
CJ overall activity)
 Indirect taxation (VAT): Interpretation of VAT Directives / National
legislation reviewed in light of EU secondary legislation
 Direct taxation: Comparatively low level of case-law (approx. 2% of
CJ overall activity) but with high-impact
 Direct taxation: Minimal case-law on interpretation of Directives /
Bulk of case law concerns national legislation reviewed in light of
fundamental freedoms
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
B. Partial and minimum harmonisation
 Since the late 1980s Court has frequently assessed
compatibility of domestic tax legislation with Treaty
 The case-law as regards compatibility of EU tax
legislation, or national tax implementing legislation, with
Treaty represents only fraction of it, but still significant
one
 Key decisions of CJ in this area:
 Situations outside the subjective and objective scope of EU tax
legislation are subject to review in light of Treaty, namely
fundamental freedoms provisions
ACT Group Litigation (C-374/04), as regards situations outside
scope of Parent-Subsidiary Directive
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
“The mere fact that, for holdings to which Directive 90/435 does not apply, it
is for the Member States to determine whether, and to what extent, a series
of charges to tax and economic double taxation are to be avoided […], does
not of itself mean that the Member States are entitled to impose measures
that contravene the freedoms of movement guaranteed by the Treaty.
Amurta (C-379/05), as regards situations outside scope of ParentSubsidiary Directive
“It is common ground that the situation in the main proceedings does not fall
within the scope of that directive. […]
in respect of shareholdings which are not covered by Directive 90/435, it is
for the Member States to determine whether, and to what extent, economic
double taxation of distributed profits is to be avoided […]. However, this
does not of itself mean that the Member States are entitled to impose
measures that contravene the freedoms of movement guaranteed by the
EC Treaty” (paras 20, 24)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 National tax legislation exercising options granted by EU tax
legislation are subject to review in light of Treaty, namely
fundamental freedoms provisions
Bosal (C-168/01) as regards option granted by Parent-Subsidiary
Directive
“in so far as [national legislation] merely implements the possibility offered
by Article 4(2) of the directive to refuse the deduction of costs incurred by
parent companies in connection with holdings in the capital of their
subsidiaries, it is compatible with the directive. However, that possibility may
be exercised only in compliance with the fundamental provisions of the
Treaty, in this case Article 52 thereof.” (paras 25, 26)
Keller Holding (C-471/04) as regards option granted by ParentSubsidiary Directive
“Irrespective of the question whether that directive applies to the present
case, such an option can be exercised only in compliance with the
fundamental provisions of the Treaty, in this case Article 52 thereof.” (para
45)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 EU tax legislation is subject to review in light of
fundamental freedoms provisions?
Bosal (C-168/01) as regards validity of provision
in Parent-Subsidiary Directive
“Although the directive permits Member States generally
to disallow deduction of holding costs, it does not,
however, provide for derogations. […] However, if it did
lay down a derogation to that effect, it would then be
necessary to examine whether or not the directive itself
offended against the principle of freedom of
establishment, a principle enshrined in primary
legislation within the Treaty.” (Opinion AG Alber, para
58)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 Conclusions on the review of EU direct tax provisions in
light of the Treaty:
 Significant minority of case-law reviewing national tax implementing
measures in light of the Treaty
 However, all cases relate to situations falling outside scope of EU
secondary legislation, or implementation of options granted by that
legislation
 No EU direct tax provision has ever been struck-down by Court on
the basis of its incompatibility with Treaty provisions
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
C. Exhaustive harmonisation
 In over 30 years of VAT jurisprudence Court has only
assessed compatibility of VAT legislation with Treaty on
few occasions:
 Gaston Schul (15/81) concerned compatibility of Sixth VAT Directive
provisions with Arts 34, 35 and 110 TFEU [ex Arts 12, 13 and 95
EECT]
“[…] the tax in question must be considered as an integral part of a
general system of internal taxation for the purposes of article 95 of
the Treaty and its compatibility with Community law must be
considered in the context of that article and not of that of Articles 12
et seq. of the Treaty.” (para 21)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
“the establishment of a system ensuring the complete neutrality of
internal taxation with regard to intra-Community trade could take
place only by strict application of the principle of taxation in the
Member State of destination […]. It is for the political institutions of
the Community to adopt such a solution since it involves a political
choice” (para 37)
 Kieffer and Thill (C-114/96) concerned compatibility of Intrastat
system (Regulation No. 3330/91) with free movement of goods
provisions, Arts 34 and 35 TFEU [ex Arts 28 and 29 ECT]
“it is common ground that the detailed nature of the declarations
required and the fact that it is obligatory to make a declaration in
both the Member State of consignment and that of destination of the
goods have restrictive effects with regard to the free movement of
goods” (para 28)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
“while the obligation to make declarations under the Regulation does
specifically affect cross-frontier trade, and drawing up the declarations takes
time and involves expense, particularly for small and medium-sized
undertakings, it does not necessarily follow that those restrictive effects are
disproportionate to the aim pursued.” (para 34)
 Société Générale des Grandes Sources d’Eaux Minérales Françaises (C361/96) concerned compatibility of Eight VAT Directive provisions and
national implementing legislation with principle of non-discrimination, Art 18
TFEU [ex Art 6 ECT]
“Where a taxable person established in a Member State may prove his
entitlement to a refund of value added tax by submitting a duplicate or
photocopy of the invoice […], the principle of non-discrimination set out in
Article 6 of the EC Treaty and referred to in the fifth recital in the preamble
to the Eighth Directive 79/1072 requires that the same possibility be
extended to taxable persons not established in that Member State if the
transaction which led to the application for a refund occurred and there is no
risk of further applications for a refund.” (para 38)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
 Lease Plan (C-390/96) concerned compatibility of Eighth VAT
Directive provisions and national implementing legislation with
principle of non-discrimination, Art 18 TFEU [ex Art 12 ECT], and
free movement of services Art 56 TFEU [ex Art 49 ECT]
“It is contrary to Article 59 of the EC Treaty for national rules to
provide that taxable persons not established in a Member State,
who apply for a refund of VAT in accordance with the Eighth Council
Directive […], are entitled to interest only from such time as notice to
pay was served on that Member State and at a lower rate than that
applied to the interest paid to taxable persons established in the
territory of that State automatically on the expiry of the statutory
time-limit for reimbursement.” (para 41)
 Teleos and Others (C-409/04) concerned VAT exemption applicable
to intra-EU supplies of goods
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
“Whilst it is true that the regime governing intra-Community trader
has become more open to fraud, the fact remains that the
requirements for proof established by the Member States must
comply with the fundamental freedoms established by the EC
Treaty, such as, in particular, the free movement of goods.” (para
63)
 Schmelz (C-97/09) concerned compatibility of Sixth VAT Directive
provisions and with principle of equal treatment, Art 18 TFEU [ex Art
12 ECT], freedom of establishment, Art 49 TFEU [ex Art 43 ECT],
and free movement of services, Art 56 TFEU [ex Art 49 ECT]
“the prohibition on restrictions on freedom to provide services
applies not only to national measures but also to measures adopted
by the European Union institutions” (para 50)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
“the fact that small undertakings established outside Austria are
excluded from the benefit of the VAT exemption renders the
provision of services in Austria less attractive for those small
undertakings. Consequently, it entails a restriction on the freedom to
provide services.” (para 53)
“at this stage in the evolution of the VAT system, the objective which
consists in guaranteeing the effectiveness of fiscal supervision in
order to combat fraud, tax evasion and possible abuse and the
objective of the scheme for small undertakings, which is to support
the competitiveness of such undertakings, justify, [limiting the benefit
of the VAT exemption to small undertakings established in the
Member State in which the VAT is due ]” (para 71)
“In those circumstances, it must be held that limiting the benefit of
the VAT exemption to small undertakings established in the Member
State in which the VAT is due does not go beyond what is necessary
to ensure the attainment of those two objectives.” (para 72)
May 19, 2010
Constitutional Role of CJ PostHarmonisation
Tax Exceptionalism or
Jurisprudential Consistency?
REVIEW IN LIGHT OF:
FUNDAMENTAL
FREEDOMS
OTHER
VAT
NATIONAL
PROVISIONS
Lease Plan (C390/96)
Société
Générale (C361/96)
EU VAT
PROVISIONS
Kieffer and Thill (C114/96)
Schmelz (C-97/09)
Gaston Schul
(15/81)
May 19, 2010
JUDGMENT
COMPATIBLE
-
Gaston Schul
(15/81)
Kieffer and Thill
(C-114/96)
Schmelz (C97/09)
Constitutional Role of CJ PostHarmonisation
INCOMPATIBLE
Société Générale
(C-361/96)
Lease Plan (C390/96)
-
Tax Exceptionalism or
Jurisprudential Consistency?
 Conclusions on the review of VAT provisions in light
of the Treaty:
 Considering amount of case-law on VAT, 5 cases
reviewing VAT provisions in light of the Treaty is (nearly)
insignificant
 Schmelz (decided in 2010) is the first case applying the
Court’s traditional fundamental freedoms’ step-approach
to VAT – discrimination/restriction, justification,
proportionality
 No EU VAT provision has ever been struck-down by
Court on the basis of its incompatibility with Treaty
provisions
May 19, 2010
Constitutional Role of CJ PostHarmonisation
The Sliding Scale of Judicial
Review
 Judicial review and constitutional role of the CJ – tax and
other policy areas compared:
 Jurisprudential consistency between tax and other internal market
policy areas: areas subject to partial or minimum harmonisation
have lower level of constitutional review than areas where
harmonisation is absent, but higher level than in areas of exhaustive
harmonisation (sliding scale of judicial review)
 Jurisprudential exceptionalism between tax and other internal
market policy areas:
internal market areas subject to partial harmonisation have lower,
but still rigorous, level of constitutional review; where tax has been
subject to partial harmonisation (direct ) judicial review is existent,
but no invalidity ever declared
internal market areas subject to exhaustive harmonisation have
lower, but still existing, level of constitutional judicial review; where
tax has been subject to exhaustive harmonisation (VAT) judicial
review almost inexistent
May 19, 2010
Constitutional Role of CJ PostHarmonisation
The Sliding Scale of Judicial
Review
 Rationale for sliding scale of judicial review and lower
standards of judicial review for harmonised areas:
 EU legislator’s discretionary power and presumption that EU
secondary law is in line with primary EU law (pre-emption)
 Need to ensure certainty and confidence in EU secondary
legislation for both Member States and individuals (taxpayers)
 Political bargaining reality
 Rationale for tax exceptionalism:
 Unanimity voting means harder political bargain
 Particularly sensitive area
HOWEVER
May 19, 2010
Constitutional Role of CJ PostHarmonisation
The Sliding Scale of Judicial
Review
 Conclusions:
 Jurisprudential tax paradox: connection between harmonisation and
standards of judicial review means higher level of judicial review for
tax areas less relevant for internal market (direct taxation), than for
tax areas supposedly more fundamental to the internal market (VAT)
 Exemption from judicial review for harmonised areas of tax: is the
Court still a constitutional court?
“The duty of the Court of Justice is to act as the constitutional court
of the municipal legal order that is the Community”
(AG Poiares Maduro, C-402/05 and C-415/05, Kadi, para 37)
 Effectiveness and uniform application of EU law: risks (including
sliding scale of review even within same level of harmonisation)
May 19, 2010
Constitutional Role of CJ PostHarmonisation

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