The 'Gradualistic Approach' of the European Court of Justice as a Judicial Solution to Tax Integration Issues: An EU-US Debate

Abstract

This paper relies on the empirical descriptive work developed in a previous paper that developed an empirical analysis of the in which a broad sample of tax cases of the ECJ cases is covered exploring the Court’s use of the “comparability analysis”, and on that basis specifically addresses the criticisms that have recently surfaced in the current U.S. legal discourse on the judicial standards adopted by the ECJ in those cases. The paper shows that, with some exceptions, the Court has developed a remarkable set of criteria of comparability inspired by the idea of market efficiency. A claim is made that the Court’s methodology provides a partial escape from of the “labyrinth of impossibility” imposed by the lack of harmonization of standards of comparability (origin vs destination standard) and of tax rates, and a two-step approach is proposed that at the same time describes what the Court is already doing and recommends what the Court should do to add transparency to its approach.