Cécile Brokelind - Principles of Law: Function, Status and Impact in EU Tax Law

Principles of Law: Function, Status and Impact in EU Tax Law

Editor:
Ccile Brokelind

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ISBN 978-90-8722-259-8 (Print)
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NUR 826

My motto for this years GREIT conference was open the legal tools box, and find a way to satisfy my curiosity as well as to reward my efforts in looking around for those who would be interested in broadening their minds through an enriching cross-disciplinarily exercise. Happily, I have been able to find on my way lots of friends and colleagues who have accompanied and supported me in my quest. This book is the result of our collective journey.

Moreover, the theme chosen for this conference, The Status, Function and Impact of Principles of Law in EU Tax Law , has provided me with an opportunity to pay tribute to Ronald Dworkin, who sadly passed away on 14 February 2013. Indeed, in my search for the right method to approach the research theme, I found Dworkins approach to the principles of law appealing, showing that in the legal tool box, both the legal theory ( philosophie du droit ) and the theory of law ( thorie du droit ) can be of help in carrying out the research task at hand. Legal theory not only tries to analyse the fundaments of the law, it also tends to find the normative value of the rule and assesses its coercive force. By contrast, the theorists of law try to adopt an interdisciplinary approach to study the effective practices of legal actors. At the crossroads of these disciplines, Dworkin investigated what the aim of the law is and what its foundations are, in order to explain whether and if so how, a specific rule is coercive or not. He found judicial decision-making should be supported with argumentation based on principles not policies, only the former being coercive as granting rights to individuals . Fundamental rights, procedural principles and administrative principles fall into this category. As explained in the coming chapters of this book, EU tax law is built upon these principles, which today, form the bones of our discipline. We are all concerned with the theories of adjudication and how far judges may go in the field of tax law. This book reflects our interrogations on some selected principles and tries to keep Dworkins words alive, discussing the role of the courts in the shaping of EU tax law. Most of us tend to agree that the European Court of Justice (ECJ) does not create the law when applying arguments of principle in hard cases, as Dworkin would have suggested. The extent to which political arguments interfere in this law-making is, however, controversial and merits some more space in academic literature.

After 7 years of continuous inquiry, conferences in universities throughout Europe and the production of seven books, the GREIT network, founded in 2006 in Lund, returned to its country of birth in 2013, for the 8th GREIT conference (19 and 20 June 2013). This book is a follow-up of the previous years production and takes up the issues raised but unanswered during the meeting in Madrid (2012), Litigating EU Tax Law in International, National and Non-EU Tax Courts , when a number of underlying similar principles and general principles of EU law were noted to have been used by the judges to interpret the law. The remaining question was therefore to identify which principles form the back bone of EU tax law, and what their coercive force is, irrespective of their origins.

I am very grateful to those of my peers who committed to help me in the organization of this mission. Firstly, I am indebted to Pasquale Pistone, Ana Paula Dourado and Dennis Weber for their trust and continued support with the GREITs activities, and I hope our common projects will continue to flourish as they have done so far. Its a worthwhile adventure that each individual can add to their own personal list of achievements.

Additionally, I am also extremely thankful to all of the talented and honourable reporters who accepted the challenge of coming to Lund, to present their views and to contribute to this book in answer to my questions: Ana Paula Dourado, Joachim Englisch, Xavier Groussot, Daniel Gutmann, Marjaana Helminen, Sigrid Hemels, Oskar Henkow, Jrgen Hettne, Georg Kofler, Richard Lyal, Guglielmo Maisto, Marta Papis, Pasquale Pistone, Robert Phlsson, Madeleine Simonek, Edoardo Traversa, Takis Tridimas, Frans Vanistendael, Peter Wattel, Dennis Weber and Adam Zalasinski; thanks to you all!!!

This project would never have been carried out without the precious financial support of the Swedish Research Council ( Vetenskapsrdet ), the Nordic Tax Research Council, IBFD and the Department of Business Law, School of Economics and Management, Lund University.

I would also like to thank dearly Pamela Finckenberg-Broman, who carefully and enthusiastically directed the assistance of this project and helped me with all the practicalities that I would not have been able to carry out in connection with the hosting of our reporters and gathering together a team of dedicated helpers, to all of whom my gratitude is expressed. I am grateful too for Eleanor Campbells precious contribution in editing our reports.

Finally, I should mention that when I was working at home on this project, I received the cheerful assistance of my dearest ones who kept the show running at home, without which this project would never have been carried out.

To all of you and on behalf of the GREIT, my wholehearted thanks!

Ccile Brokelind

Lund, October 2013

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