Tax Abuse and Legal Pluralism: Towards Concrete Solutions Leading to Coordination Between International Tax Treaty Law and EU Tax Law

Abstract

As will be demonstrated in this article, the concepts of abuse adopted at EU and OECD level do not coincide completely. As a result of these differences, conflicts may concretely arise between the EU and international obligations held by the same EU Member State. Furthermore, due to legal pluralism (i.e. the fact that each legal system, in principle, is developed and, therefore, functions autonomously on a global level) very often, in case of conflict, different conflict rules will be applicable, without the possibility of guaranteeing coordination between international tax treaty law and EU tax law. In the absence of common coercive solutions, the author argues that coordination between international tax treaty law and EU tax law requires a dialectical approach through which conflicts can be managed. Therefore, conflicts become an opportunity for discussion and negotiation in order to pursue – step-by-step – solutions conciliating the international and the EU tax systems. Indeed, the achievement of complete coordination could not be immediate, but require intermediate steps. Any dialectical approach requires phases of compromise. This is implicit in the concept of managing conflicts on which legal pluralism is based. Tax Abuse, Legal Pluralism, Coordination, tax treaties, EU law, conflict rules, double taxation, fundamental freedoms, artificial arrangement, proportionality, legal certainty, dialectical approach, PPT rule