European Tax Law Research Articles

The Weakening of Taxpayer Rights in the Exchange of Information between Tax Authorities

Developments in international legislation and the growing digitalization of tax law support the development of global networks between tax authorities. We are witnessing an integration of databases that will lead to increasingly intense coordination of the fight against tax evasion at a supranational level. As in social networks and digital commerce, databases are increasingly enriched, contain increasingly precise information on the individual taxpayer and use common languages that allow for automated exchanges of information. While waiting for the creation of a global database – not conditioned by the constraints of reciprocity and abstractly usable by all authorized entities who need it – the first risks of limitation of the taxpayer’s rights are emerging. In fact, these phenomena have dark sides that are starting to emerge in use, at a national level and with respect to individual taxpayers, of interpolated databases. Moreover, a growing amount of information flows from heterogeneous and increasingly widespread sources, sometimes not protected by the requirements of professionalism, legality and public trust since data collection and entry can be delegated to economic entities, intermediaries and consultants. The absence of an authority responsible for the unitary management of global databases and for the resolution of their conflicts, the slow and timid affirmation (only in some national systems) of the taxpayer’s right of access to information concerning them, the difficult configuration of the faculty to request the correction of erroneous data and of the specular public power to remove the reported inaccuracies, weaken the system of protections gradually erected to protect the taxpayer’s position. In this way, the coordination of national systems that contemporary tax law creates is strongly unbalanced on the side of the protection of tax interests. International and European tax law should instead provide greater guarantees in favor of the taxpayers, defending their right to fair taxation.

European Tax Law, Chapter [X] – Company Tax Proposals and Tax Policy Initiatives

European Tax Law, Chapter [X] – Company Tax Proposals and Tax Policy Initiatives

Critical Remarks On the Implementation of the Anti-Tax Avoidance Directive in The Bulgarian Legislation

The aim of the current paper is to outline some challenges regarding the implementation of the Anti-Tax Avoidance Directive (ATAD) in the Bulgarian legislation. For this purpose, specific aspects of the ATAD’s legal nature will also be examined in general. In this regard, the main applied methods used are the historical, the comparative and the logical. The author would like to draw attention to the relationship between the secondary European (EU) tax law and the relevant domestic provisions as key factors for the national tax policy regarding the tax avoidance from direct taxes’ perspective. The summary of the findings will help to estimate the efficiency of the new rules and the necessary steps for their further improvement. It will also outline the future trends on this issue.

Tax Justice and European Tax Law

Tax Justice and European Tax Law

Book review: Enhanced Cooperation and European Tax Law, by Caroline Heber. (Oxford: Oxford University Press, 2021)

Book review: <i>Enhanced Cooperation and European Tax Law</i>, by Caroline Heber. (Oxford: Oxford University Press, 2021)

History and Future of EU Taxation according to Frans Vanistendael: Inspiration for a Constructive and Critical Dialogue

This contribution deals with the history and future of EU taxation based on Frans Vanistendael’s legacy on European tax law, especially on his view on the history and future of EU taxation as expressed in numerous speeches and articles, analysing and commenting on developments in EU taxation and, in his eyes, challenges, unwanted standstill situations and obstacles. Vanistendael’s publications show a constant drive: he was concerned about the deficient decision-making process in the European Union mainly because of the requirement of unanimity for decisions affecting taxation. Also, he tirelessly pointed at the tax deficits that are obstacles to achieve an internal market and, after the introduction of the euro, an effective and sustainable economic and monetary union. In this respect, Vanistendael consistently criticized the failures and weaknesses of the main European institutions – the Council, the Commission, the European Parliament and the ECJ. The present war between Russia and Ukraine proves that we need the European Union more than ever to safeguard the European way of life and to defend ourselves against totalitarian regimes that deny and despise democracy, human rights and the rule of law.

THE ROLE OF COURT OF JUSTICE WITHIN THE EU TAXATION LAW

Key words: EU taxaion, functions Court of justice of EU, role of CJEU in EU taxation, creative jurisprudence Introduction The “European tax law” is a set of regulations issued by the EU institutions and designed to provide the control of tax matters over the tax legislations of the Member States. However, the existence of EU rules aimed to regulate the procedures for taxation in the European Member States is not enough to identify an area of an independent and autonomous law. In fact, if the tendency to profile the EU law is developing in the recent times, in order to valorize the regulatory provisions of specific areas of the legal system (giving a meaning to the definition of “European private law” or “European administrative law” or even “European trial law”), it must be considered that the identification of an autonomous sector of law requires the logic of a “legal system”; it basically implies the existence of principles and juridical values and the dynamic relationships between the norms. Therefore, the existence of a set of general rules by EU institutions cannot be considered sufficient to identify a “European tax law”; if these rules compose a mere aggregate without a functional meaning, the element of the systematic unity would be lacking and there should not be an autonomous order of law. In any case, there are several elements which lead to identify an independent and autonomous sector of law in the set of EU norms regarding the taxation law. On the other hand, it must be noted that the fiscal discipline drawn up by the EU sharply drifts away from the developmental lines of the modern tax law. In fact, the whole of the European fiscal regulations essentially meets the logic of the market integration on the basis of the principles of the trading free competetion regardless of the nationality or the residence. Therefore, the tax system is free of its potential load of “obstruction” regarding the free movement of capitals, people, goods or services (the four freedoms of European tradition), in order to show up as a system of “neutral” rules compared to the market and the economic forces of a “free system”. There is a complete lack of the tradition of the European constitutional values which characterize the basic skills of the taxation phenomenon. Particularly, it can be observed as a lack of the “fiscal interest”, intended as the general interest of the associates to the acquisition of tax resources in order to facilitate the social development, the institutional progress, the growth of the Welfare State and the essential equality of all the members of the civil community. Likewise, there is no trace of a reference to the ability to pay, an inescapable principle of distribution of tax burdens among the associates in order to ensure the concrete pursuit of a logic of the national wealth redistribution, which is at the same time a measure of guarantee and a safeguard of the individual sphere from the public administration excesses operated for the tax burden.

European Tax Law and the Freedom of Choice Regarding Cross-Border Financing within Multinational Groups

Member States often try to restrict cross-border debt financing within multinational groups. The pending Swedish case, Lexel AB (Case C-484/19), is a prime example. This article analyses the Swedish rules on interest limitation in affiliated groups in the context of EU law and finance theory. Beyond the Lexel AB case, the higher-level question is how national interest deduction limitation rules should be legally formulated in relation to intra-group financing such that they do not conflict with EU law.

Literature Review: European Tax Law, P. J. Wattel, O. Marres &amp; H. Vermeulen (editors), Volume I, 7th ed., Kluwer Law International, 2019

Literature Review: European Tax Law, P. J. Wattel, O. Marres &amp; H. Vermeulen (editors), Volume I, 7th ed., Kluwer Law International, 2019

The Ne Bis In Idem Principle in Tax Law: European and Italian Frameworks

In the national and supranational legal area, the need to address the ne bis in idem principle is justified by the growing interest aroused by the most recent pronouncements of the European Courts. The principle prohibits anyone who has already been acquitted or convicted in a previous trial from being tried again. Moreover, it has become a fundamental right enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The interest in the issue also derives from the need to understand whether the approach of the Italian legal system – or any other similar national order – can be considered compliant with European tax law and case law, based on the definitions of criminal and tax offences. Thus, talking about a European legal space means rethinking the idea of punitive power in a dimension that tends to be ‘solidarity-based’. The State can consider itself impervious to repressive demands from outside but is instead called to cooperate actively to safeguard its own guarantees. The traditional self-referential conception of criminal repression effectively summarised in the expression ‘punitive sovereignty’ gives way to an idea of jurisdiction that draws directly from the principle of mutual recognition. In this scenario, the profile of the protection of the individual from the risk of a duplication of the exercise of punitive power for the same fact in different states assumes the role of the first magnitude. Hence, there is a need to act on two levels at the same time: to seek solutions aimed at resolving possible conflicts of jurisdiction (prohibition of competing prosecutions for the same fact), and to attribute, within each Member State, preclusive effects to the previously judged foreigner (ne bis in idem).

The direct and immediate link with specialised services contracts as a measure for the right to deduct input VAT and the uncertainty in European tax law

ABSTRACTThe purpose of this paper is to reconstruct the meaning of the direct and immediate link test in light of the Court of Justice of the European Union (CJEU) case law in the purchase of speci...

Recent Transfer Pricing Developments in Belarus: Taking Careful Steps towards Integration into European Tax Law

At the end of 2018, Belarus adopted large-scale amendments to its Tax Code. Among other matters, transfer pricing provisions were markedly rewritten and expanded. A new version of the Tax Code envisages a number of changes, including an updated list of related parties, revised criteria for determining controlled transactions, modified rules on transfer pricing methods and documentation, as well as the introduction of advance pricing agreements. All of these modifications manifest that Belarus monitors global developments in transfer pricing carefully and adopts, albeit slowly, international best practices in this sphere. The new rules, which came into force on 1 January 2019, apply to transactions performed on and after this date. It is expected that amendments will significantly change the Belarusian transfer pricing scene.

Principles of subsidiarity and proportionality in European tax law

Principles of subsidiarity and proportionality in European tax law

Tax Seminar I on Relevant Issues Related to the Permanent Establishment in the Light of the OECD Model Tax Convention on Income and Capital

A tax seminar for students following the LL.M course in International and European Tax Law was held at the Faculty of Arts and Social Sciences of Maastricht University on 11 December, 2013. The objective of this seminar was to provide the students with additional information and insights on the permanent establishment (PE) concept in preparation for their upcoming exam and, at the same time, give them a deeper understanding of the current developments in this area. Dr Marcel Schaper, assistant professor of law at Maastricht University, welcomed the speakers as well as the participating students and gave a brief introduction to the subject of the seminar. The seminar featured two presentations given by Mr Andreas Perdelwitz, principal research associate in the International Bureau of Fiscal Documentation (IBFD) European Knowledge Group, and Ms Oana Popa, senior research associate in the IBFD.

Book Review: Advanced Issues in International and European Tax Law, by Christiana HJI Panayi. (Oxford: Hart Publishers, 2015)

Book Review: <i>Advanced Issues in International and European Tax Law</i>, by Christiana HJI Panayi. (Oxford: Hart Publishers, 2015)

BEPS Action 16: The Taxpayers’ Right to an Effective Legal Remedy Under European Law in Cross-Border Situations

This article starts from the reasonable assumption that the implementation of the base erosion and profit shifting (BEPS) project increases legal uncertainty in tax matters. The shift from the isolated and bilateral exercise of taxing jurisdiction to international tax coordination in the framework of the BEPS project is not accompanied by a corresponding global convergence in the exercise of legal remedies, which remain confined to their national boundaries. In line with their previous research, the authors address hereby the right of taxpayers to an effective legal remedy under European tax law, taking into account the dialogue among Courts in respect of legal values contained in national Constitutions of European Union (EU) Member States, the EU Charter of Fundamental Rights and the European Convention on Human Rights. The focus is on the right to an effective legal remedy in cross-border tax procedures, with special emphasis on mutual agreement procedures and mutual assistance. The authors suggest a two-tier mechanism with the involvement of taxpayers and tax authorities, which allows for an effective exercise of the right of defence and does not require major changes in the wording of treaty clauses modelled after Articles 25 and 26 OECD MC. Hopefully, something that other international institutions, including the United Nations, may consider for the future. The authors suggest filling this gap with their proposal for a BEPS Action 16.

Tax Policy: Trends in the Allocation of Powers Between the Union and Its Member States

Over the last twenty-five years, the picture of European tax law has changed significantly. While the European Economic Community (EEC) had largely harmonized indirect taxes already, the law of direct taxation had not realized any substantial influence of EEC law before the 1990 Directives entered into force. With a turbulent start in the mid-1990s, the Court of Justice has reshaped income taxation of cross-border activities and investment by activating the fundamental freedoms. Further developments brought about additional waves of intra-European Union (EU) tax neutrality – joint efforts to combat unfair tax competition, to improve cross-border administrative assistance and to counter Base erosion and profit shifting (BEPS). In their interdisciplinary analysis, two lawyers and one economist reflect on these developments from the specific perspective of the vertical allocation of powers. Avoiding any misleading split-of-sovereignty language, they demonstrate the current balance of taxing powers between the EU (Commission [COM], Court of Justice of the European Union [CJEU]) and its Member States, most notably the balance of positive and negative integration (section 2). On this basis, they explore options for future EU rule-making on the field of direct taxes (section 3), stress the persistent relevance of negative integration (section 4) and indicate ‘third ways’ – informal cooperation in tax legislation, indirect influence of non-tax measures to tax policy (section 5) and eventually, the introduction of European taxes (section 6).

Tax Law of the Eurasian Economic Union: Substance and Ways of Using of the European Experience

The study considers principal features of the Treaty on Eurasian Economic Union (hereinafter – EAEU) in the light of modern international tax law, its legal nature, its place and functions in the regulation of Eurasian integration. The study describes the main features of tax law under the EAEU Treaty as the foundation treaty of two kinds: establishing international organization for integration (EAEU) and the economic and legal space (the Customs Union and the Common economic space). The important aspect of the proposal is the comparative study of development of tax law in the EAEU and the European Union (EU) as a model of integration which has already shown great results during decades. The objective of this study is to provide an evaluation of development of tax law in EAEU in comparison with EU. The EAEU and the European Union have incomparable historical experience: ten and sixty years respectively. We suppose that some elements of EAEU are similar to EU, and namely the next ones: the unity of institutional structure; aims of vanguard countries correspond to basic direction of development of the whole Union; there is a possibility for rearguard countries to join vanguard countries in case they are ready to carry out extra obligations. The scope of the study is closely connected to the following evaluation problems: tax sovereignty; the effects of the major recent tax policy initiatives for the Union and Member States; ways of tax harmonization in the EAEU and the role of the Court of the EAEU (with using of experience of the European Court of Justice in the area of European tax law); ways of absorbing the enlargement of the EAEU.

Book Review: Advanced Issues in International and European Tax Law

Book Review: Advanced Issues in International and European Tax Law

Neutrality and Territoriality – Competing or Converging Concepts in European Tax Law?

This article is based on the Klaus Vogel Lecture delivered on 24 October 2014 at the Vienna University of Economics and Business. It criticizes the increasing recognition of territorial taxing rights in the jurisprudence of the ECJ and pleads strongly both for a unilateral discrimination test and the revival of the concept of coherence.