Tax Arbitration Courts and Preliminary References

in Nuno Villa-Lobos e Tânia Carvalhais Pereira (Coord.), The Portuguese Tax Arbitration Regime, Almedina, Coimbra, 2015, pp. 235-260

25 Pages Posted: 30 Mar 2017

Date Written: 2015

Abstract

This article explores the relationship between arbitration courts and the preliminary reference procedure foreseen in Article 267 TFUE. It starts by explaining the importance of preliminary references in the development of legal integration in the European Union. Afterwards discusses the case law of the Court of Justice of the European Union concerning the admissibility of preliminary references sent by arbitration courts. Special attention will be given to the “Merck Canada Inc.” order, in which the Court of Justice answered a preliminary reference sent by a compulsory Portuguese arbitration court established by law to rule on intellectual property conflicts regarding generic drugs . I argue that in “Merck Canada Inc.” the Court of Justice should have refused to answer the questions submitted because the referring arbitration court was not a last instance court and did not satisfied structural requisites of a “court or tribunal of a Member State”. The same does not apply to tax arbitration courts, which not only fulfil those requisites, but should also be considered as “courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law” submitted to the obligation to refer foreseen in §3 of art. 267 TFEU.

Keywords: Preliminary Reference Procedure, Arbitration, Merck Canada, Portugal

JEL Classification: K30, K34

Suggested Citation

Pereira Coutinho, Francisco, Tax Arbitration Courts and Preliminary References (2015). in Nuno Villa-Lobos e Tânia Carvalhais Pereira (Coord.), The Portuguese Tax Arbitration Regime, Almedina, Coimbra, 2015, pp. 235-260. Available at SSRN: https://ssrn.com/abstract=2941119

Francisco Pereira Coutinho (Contact Author)

NOVA University of Lisbon - School of Law ( email )

Campus de Campolide
Lisboa, 1099-032
Portugal

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