OS ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 in N Luxembourg I et al. (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) and T Danmark et al. (Joined Cases C-116/16 and C-117/17), Concerning the 'Beneficial Ownership' Requirement and the Anti-Abuse Principle in the Company Tax Directives

Abstract

This article deals with the decision taken by the Court of Justice of the European Union in of 26 February 2019 in N Luxembourg I et al. (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) and T Danmark et al. (Joined Cases C-116/16 and C-117/17). The authors acknowledge that the Danish beneficial ownership address a number of important and timely issues, especially with regard to the concept of under EU law. These include: (i) the expansion of the general anti-abuse principle enshrined in EU law to areas of tax law that are subject to minimal harmonization; (ii) the use of OECD materials to define the beneficial ownership concept; (iii) the conflation of the beneficial ownership concept with the general anti-abuse principle and the Court's attempt to give the notion of abuse workable contours; and (iv) the reading of an effective subject-to-tax clause with regard to interest income into the definition of company laid down in the EU Interest and Royalties-Directive (2003/49) (IRD). Domestic courts will likely struggle to translate the abstract guidance of the Danish beneficial ownership into concrete decisions, that practitioners and academics alike will have to discuss building blocks and nuances of the Grand Chamber's decisions for quite some time, and that consideration needs to be given to the impact of the cases on current tax structures.