Google+ A few lines for my friends in Melbourne explaining Constitutional case 112/08 (on Luxury Taxes)

sabato 6 dicembre 2008

A few lines for my friends in Melbourne explaining Constitutional case 112/08 (on Luxury Taxes)

The primacy of EU law on national constitutional law has always been an issue debated by academics in the old continent in general, and in Italy in particular.
On one side the ECJ always decided that the rule of EU law had to prevail on any kind of national provision, while on the other side the National Constitutional Courts were on the opinion that this primacy could not be extended to the fundamental principle enshrined in Constitutional Charters.
For this reason they always refused to be bound by art. 234 (compulsory reference of the case to the ECJ when EU law issues were in dicussion) during their decisions.
The case analyzed in this article seems to be the opening of a new season.
For the first time in the italian constitutional history a (tax) case is submitted to the ECJ by the Constitutional Court which therefore implicitly admits that it can't decide on it without the prior opinion by the judges in Luxembourg when issues related to Eu law are involved.
The reasoning accepted by the Court is simple. The legal order of every European Nation (and Italy in particular) must be considered as one, being fictious the distinction between European and National rules of law.
From this basic assumption stems out the primacy (not explicitly accepted, but de facto recognized) of the European judges over the National (although Constitutional) ones.
The circumstances of the case are also relevant in this respect.
An Italian region (sardinia) implemented new taxes applicable to people not resident on the island and based on the ownership of specific goods or services (luxury goods such as yachts, planes etc ...). Individuals and companies were both liable to tax.
While the tax in question could represent a violation of the constitutional principle of non discrimination in relations to individuals, it could be considered a clear violation of the freedom of establishment in the second case (art. 43 of the Treaty) as well.
That's why the Court delivered the judgement in the first case but submitted the question to the ECJ in the second (now pending in luxembourg).
Other issues were considered as well by the italian Constitutional Court, such as the compatibility of a local tax of this kind with the current constitution (namely, the compatibility of a tax not passed by the national parliament.
Even if, theoretically speaking, Sardinia is allowed to levy specific taxes, the ones of the case fell outs
ide its jurisdiction both because of the taxable base chosen, and because of the absence of a framework national act allowing regions to fully develop a fiscal autonomy. In this respect, the cese debated and decided represents as well an extremely interesting aspect of the forthcoming Federalist reform of the italian tax system.

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