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Stare decisis, legal certainty and the concept of economic activity, regarding the VAT treatment of public bodies

Quintero, Rafael LU (2015) HARN60 20151
Department of Business Law
Abstract
Stare decisis is the doctrine whereby judges and courts rely on previous cases to support a current decision. This doctrine has been associated with legal reasoning and with positive outcomes such as continuity, stability and predictability of the legal system . In the EU, the ECJ does not strictly adhere to this doctrine, unlike common-law systems. However, this court seldom depart from its case law, developing “building blocks” which gather a coherent corpus of decisions in a continuous line of reasoning. Therefore, it can be said that the ECJ operates a rather de facto stare decisis . This is in light with doctrinal requirements, whereby judges should enjoy flexibility to not follow its previous judgments. Otherwise, they will be at the... (More)
Stare decisis is the doctrine whereby judges and courts rely on previous cases to support a current decision. This doctrine has been associated with legal reasoning and with positive outcomes such as continuity, stability and predictability of the legal system . In the EU, the ECJ does not strictly adhere to this doctrine, unlike common-law systems. However, this court seldom depart from its case law, developing “building blocks” which gather a coherent corpus of decisions in a continuous line of reasoning. Therefore, it can be said that the ECJ operates a rather de facto stare decisis . This is in light with doctrinal requirements, whereby judges should enjoy flexibility to not follow its previous judgments. Otherwise, they will be at the risk of stagnating, and so their jurisprudence might be left outdated.
However, the principle of legal certainty requires that legal relationships governed by EU law remain foreseeable. For this to happen, the ECJ should adhere to its pre-established case law, unless there is a reason that excuse departing from it, as well as it should justify their judgements rationally. This is particularly important when the ECJ deals with hard cases, because they, in order to be solved, require a second-order of justification and combination of logos, ethos and pathos arguments, which involve, precisely, reliance on case law and coherency with the law.
An example of hard cases are the judgments that deal with the concept of economic activity. Thereon, the ECJ has developed a “building block” which brought about what I call the economic-nature criteria. These are a set of guidelines that aim to “decipher” the essence of the concept of economic activity laid down in the second subparagraph of article 9(1) of the VAT Directive. In particular, the referred criteria assess whether a transaction is of an economic nature. They are of great importance because the economic nature of an activity is what determines whether an activity lies or not within the scope of the VAT Directive .
However, in cases regarding the assessment of the concept of economic activity in the light of the VAT treatment of public bodies, the ECJ departed from the referred economic-nature criteria. Although, it is not strictly obliged by its case law, not following its case law, without justifying so may jeopardize the very nature of the principle of legal certainty, since legal situations may not be foreseeable. (Less)
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author
Quintero, Rafael LU
supervisor
organization
course
HARN60 20151
year
type
H1 - Master's Degree (One Year)
subject
keywords
Stare decisis, common law, economic activities, VAT treatment of public bodies
language
English
id
5435338
date added to LUP
2015-06-18 12:09:09
date last changed
2015-06-18 12:09:09
@misc{5435338,
  abstract     = {Stare decisis is the doctrine whereby judges and courts rely on previous cases to support a current decision. This doctrine has been associated with legal reasoning and with positive outcomes such as continuity, stability and predictability of the legal system . In the EU, the ECJ does not strictly adhere to this doctrine, unlike common-law systems. However, this court seldom depart from its case law, developing “building blocks” which gather a coherent corpus of decisions in a continuous line of reasoning. Therefore, it can be said that the ECJ operates a rather de facto stare decisis . This is in light with doctrinal requirements, whereby judges should enjoy flexibility to not follow its previous judgments. Otherwise, they will be at the risk of stagnating, and so their jurisprudence might be left outdated. 
	However, the principle of legal certainty requires that legal relationships governed by EU law remain foreseeable. For this to happen, the ECJ should adhere to its pre-established case law, unless there is a reason that excuse departing from it, as well as it should justify their judgements rationally. This is particularly important when the ECJ deals with hard cases, because they, in order to be solved, require a second-order of justification and combination of logos, ethos and pathos arguments, which involve, precisely, reliance on case law and coherency with the law. 
	An example of hard cases are the judgments that deal with the concept of economic activity. Thereon, the ECJ has developed a “building block” which brought about what I call the economic-nature criteria. These are a set of guidelines that aim to “decipher” the essence of the concept of economic activity laid down in the second subparagraph of article 9(1) of the VAT Directive. In particular, the referred criteria assess whether a transaction is of an economic nature. They are of great importance because the economic nature of an activity is what determines whether an activity lies or not within the scope of the VAT Directive . 
	However, in cases regarding the assessment of the concept of economic activity in the light of the VAT treatment of public bodies, the ECJ departed from the referred economic-nature criteria. Although, it is not strictly obliged by its case law, not following its case law, without justifying so may jeopardize the very nature of the principle of legal certainty, since legal situations may not be foreseeable.},
  author       = {Quintero, Rafael},
  keyword      = {Stare decisis,common law,economic activities,VAT treatment of public bodies},
  language     = {eng},
  note         = {Student Paper},
  title        = {Stare decisis, legal certainty and the concept of economic activity, regarding the VAT treatment of public bodies},
  year         = {2015},
}