Article 6 of the Anti Tax Avoidance Directive – Living a Life on Its Own?

Abstract

Art. 6 of the Anti Tax Avoidance Directive (ATAD) includes a minimum harmonization standard for so-called General Anti Abuse Rules (GAARs) in the field of corporate income taxation. A significant number of Member States has not enacted the provision but referred to their domestic law already fulfilling the demands of the directive. While this is possible, it could point towards a lack of awareness of what ramifications Art. 6 ATAD has on Member States’ tax systems. Against this background, the article aims to shed light on the life Art. 6 ATAD has, as part of EU law, begun to live on its own. In doing so, we will reflect on five dimensions: (i) the impact of the Philip Morris line of case law on Member States’ ability to go beyond the minimum standard included in Art. 6 ATAD, (ii) the relation between Art. 6 ATAD and the EU’s general anti-abuse principle, (iii) the impact of the EU fundamental rights protection on the application of the national implementation of Art. 6 ATAD, as well as (iv) the interpretational insights to be won from other secondary EU and (v) state aid provisions. ATAD, GAAR, abuse, tax avoidance, principle, implementation, interpretation, fundamental rights, unshell, state aid