The Interaction between the Interpretation of Article 24 OECD MC and the Non-discrimination Standard Developed by the CJEU

Abstract

This article discusses whether national courts in EU Member States, when interpreting tax treaty non-discrimination provisions, are influenced by the CJEU's case law on the fundamental freedoms. Because these non-discrimination standards are very similar, and because there is a perception that the non-discrimination standard developed by the CJEU outperforms the tax treaty nondiscrimination standard, those national courts could be tempted to draw inspiration from the CJEU's case law. However, this article concludes that, even though some examples are apparent in a number of recent cases, such an influence is currently not widespread in the reported case law. In addition, this article considers whether European law requires national courts of EU Member States to draw inspiration from the case law of the CJEU. In this regard, the article concludes that the principle of legal certainty requires tax treaty non-discrimination provisions to be interpreted uniformly by all national courts, without any influence from specific legal instruments aimed at regional market integration.