Herhaling

Question 1

Cases concerning: is secondary law higher than domestic constitution?

Answer 1

1. Costa v ENEL: lex superior in favor of EU law
2. Simmenthal: no lex posterior in favor of domestic law

Question 2

Case Becker

Answer 2

VAT directive where broker loans were tax exempt and the domestic law said it’s taxable.

• Conditions for the direct reliability = the tax exemption must be clear and the transformation phase must be elapsed = MS must have had enough time to transpose directive into domestic legislation.
• An individual can rely if these conditions apply → non-applicability of the national rule as far as it is in conflict with EU law.

Question 3

Conditions direct applicability

Answer 3

Direct applicability: can I derive the right to protect my position from a provision in a directive under EU law?

1. Unconditional
2. Sufficiently precise

→ The judge must know the legal consequence and there must not be intermediate steps to apply: case Van Gend & Loos

Question 4

Court argumentation Humblet case

Answer 4

1. Taxation of salary EU official = exclusive power of the EU → exempt from national taxation (because otherwise, EU could not recruit people).
2. Even indirect tax burdens are to be avoided → interpretative arguments (not that convincing).

Question 5

Facts of the case Terhoeve?

Answer 5

• Mr. Terhoeve worked for a Dutch employer → detached in the UK but still paid to the Dutch social security system → his social security contributions were higher (he could not enjoy the cap because he had separate tax assessments).
  
  • → he paid more than if he were a resident
• Violation of free movement of workers under art. 45 and discrimination.