EC Procedural Protection: The Principles of Effectiveness and Equivalence - With Particular Focus on Swedish Tax Procedural Law
Abstract: The notion of a procedural autonomy reserved to the Member States has its roots in the Rewe and Comet judgments delivered in 1976. In those cases the European Court of Justice held that it is for the domestic systems of each Member States to designate the courts having jurisdiction and the procedural conditions governing actions at law intended to ensure the protection of the rights which subjects derive from the direct effects of Community law. However, that ''autonomy'' was subjected to two overriding considerations of Community law. First, the national rules applicable to Community law cases cannot be discriminatory or less favourable than those relating to similar actions of a domestic nature (the principle of equivalence). Secondly, the national rules must not make it excessively difficult to exercise Community law rights (the principle of effectiveness). This does however not imply that there is an autonomy contra EC effectiveness contradiction, in fact there is no balancing act to be undertaken, as some commentators has suggested where the interest of respecting the autonomy of the Member States to provide for procedural rules must be weighed against the need for proper protection of EC law. The principle of cooperation enshrined in Article 10 EC requires that Member States provide for adequate protection of EC law rights and this also includes the procedural aspects of the enforcement of those rights. If the application of the principles of effectiveness and equivalence demonstrates that the Member States haven't fulfilled that duty, then the national courts will have to set-aside those procedural rules that stand in the way of proper procedural protection. The Swedish Tax Courts are of course not exempted from this duty. Whenever they try cases where an individual rely on directly effective EC law they must constantly evaluate whether or not the procedural rules governing those claims fulfil the requirements imposed by the principles of effectiveness and equivalence and thus provide the protection required under Article 10 EC. The purpose of this thesis is to examine Swedish Tax Procedural Law against the EC principles of effectiveness and equivalence with a view to analyse if those rules comply with those principles. This study has shown that it is not easy to point out specific rules that may be contrary to the principles of effectiveness and equivalence. That is particularly so as regards the principle of effectiveness, which is less straight-forward than the principle of equivalence. That notwithstanding, it is still possible to examine certain rules and draw some general conclusions as to their validity.
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