The Proposed EU Digital Services Tax: An Anti-Protectionist Appraisal Under EU Primary Law

Abstract

Fair taxation in the digital era is at stake. Business activities are not considered to be taxed where value is created, while value is currently claimed to be created where consumers of digital goods and services are located. The proposed EU digital services tax (DST) consists of an interim tax policy option to address the above issue and harmonize the already adopted unilateral measures across the EU. This article examines the European proposal for a common system of a DST on revenues resulting from the provision of certain digital activities in light of Article 110 of the Treaty on the Functioning of the European Union (TFEU), and evaluates its potential impact on the digital single market. It is argued that as far as the taxation of digital intermediation services are concerned, the DST risks being regarded as discriminatory internal taxation under Article 110 of the TFEU, having an immediate effect on imported products sold via a digital interface in the market Member State and therefore, it risks being considered as having a ‘protectionist effect’ on domestic traditional products.