The Court of Justice and the OECD Model Tax Conventions or the Uncertainties of the Distinction between Hard Law, Soft Law, and No Law in the European Case Law

Abstract

Through an exhaustive study of the ECJ case law on tax matters, this article aims at identifying the role and the functions of the OECD Model Tax Conventions and their Commentaries in the justification of the judgements. In fact, although the OECD Model Tax Conventions are not valid norms of the EU legal order in a typically positivist(Kelsenian) perspective, ECJ seems sometimes to rely on them in order to justify its position. However, this study reveals that the OECD Models have no impact on the interpretation and application of secondary EU law, whereas their role is constantly declining with respect to the appreciation of the compliance of domestic legislation and bilateral tax treaties with the fundamental freedoms of the common market. This would be a very welcomed development, since the OECD Models are intended to govern classical interstate relations and therefore their rules are not always appropriate in more advanced stages of regional integration.