Case Law Trends: The CJEU’s Approach to the Objectives of Progressive Turnover-Based Taxes: Respect for the Member States’ Fiscal Sovereignty or Authorization for Circumventing EU Law?

Abstract

The article demonstrates that the objective of the tax system plays a crucial role in the non-discrimination assessment in the context of both EU State aid and fundamental freedoms analyses. Despite the fact that the objective of the underlying tax system/tax measure is decisive in respect of the outcome of these non-discrimination tests, there are plenty of uncertainties in the Court of Justice’s case law regarding the scrutiny of the objectives of tax measures. The article sheds light on them, first, by examining the allocation of competences among national authorities – national courts – and the EU adjudicatory bodies with regard to the determination of the objective of the tax system. Then, the required standard of consistency between the declared objective and the design of the tax system is scrutinized in the context of the recent progressive turnover-based tax cases, suggesting a stricter standard of consistency that is based on the principle of proportionality. The article also attempts to disentangle the blurred relationship between the objective of the tax and the intent of the legislator, and argues that the Court’s inquiry should not be directed at the legislature’s intent rather at the objective of the tax, as the former is difficult to identify. Finally, the question of abuse of rights by the Member States is discussed, that is, Member States can circumvent EU law by enacting seemingly neutral taxes the actual objective of which is to discriminate or selectively favour certain groups of taxpayers. Non-discrimination, state aid, fundamental freedoms, turnover-based taxes, objectives of tax measures, circumvention of law, abuse of rights, de facto selectivity, intention of legislature, progressive taxation.