The substantive scope of the Anti-Tax- Avoidance Directive: The remaining leeway for national tax sovereignty

Abstract

The Anti-Tax Avoidance Directive (ATAD) is often regarded as an extraordinary piece of EU legislation in that it does not grant benefits, but obliges Member States to fight abusive practices. The scope of the Directive is limited to taxpayers “subject to corporate tax in one or more Member States”. This article suggests that the term “subject to corporate tax” should be given autonomous interpretation under EU law, thereby preserving the uniformity of Union law and restricting the room for artificial manoeuvre of the Member States. At the same time, interpreting the scope of theATAD must be done in accordance with the delimitation of competences between the Union and its Member States. Considering this, it is argued that the autonomous definition of “subject to corporate tax” should include all forms of direct taxes on corporate bodies, while not preventing the Member States from deciding whether to apply such taxes in the first place, as nothing in the ATAD obliges a Member State to have corporate tax. Anti-Tax Avoidance Directive, ATAD, taxation, abusive practices, corporate tax, autonomous interpretation, uniformity, scope of the ATAD, “subject to corporate tax”