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
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: Suggested Citation