bluuebunny/crossref_metadata_2025_split huggingface dataset:
National Grid Indus Case: Consequences under an Italian Perspective
Authors: Letizia Giulia , Capitta Francesco 
Published: March 2022

The article describes the impact of the decision of the European Court of Justice 'National Grid Indus' on Italian rules regarding exit taxation. The former Italian legislation prescribed the immediate taxation of unrealized capital gains, except if a Permanent Establishment (PE) is maintained in Italy, without distinguishing between the establishing of the amount of taxes and their recovery. In the meantime, the European Commission opened an infringement procedure against Italy with regard to the rules on exit tax. In January 2012, such rules have been modified in compliance with the principles established in National Grid Indus, allowing Member States to tax corporations on latent capital gains at the time of the transfer of the place of effective management to another Member State, but deferring the collection until the actual realization of the assets. This change carries out a series of problematic aspects concerning the scope of application of the new provision with regard to the transfer of permanent establishments of foreign enterprises in Italy, the tax basis of the assets transferred and, in particular, the interaction with the Merger Directive.
Harmful Tax Competition: Six Belgian Tax Incentives under the Microscope
Authors: Dirix Kim 
Published: March 2022

In today's globalized environment, tax motives have begun to play an increasingly prominent role in a company's (re)location decision. Because of this development, national states have to ensure that their tax systems remain competitive in order to attract new investments (and the corresponding taxable income). However, in doing so, they should refrain from introducing tax measures which qualify as harmful tax competition, since these may have potential negative effects on the tax base of other states. The Organisation for Economic Co-operation and Development's (OECD's) 1998 Report on 'Harmful Tax Competition: An Emerging Global Issue' and the European Commission's Code of Conduct on business taxation both aim to curb harmful tax practices by establishing the criteria which can be used to identify harmful preferential tax regimes. In addition, the state aid provisions can be used to fight harmful tax competition. The purpose of this article is to evaluate six Belgian tax incentives in search of any potentially harmful features. As will be demonstrated below, it appears there are still a number of loopholes in the current state of legislation, which mainly relate to the special tax regime for expatriates and the excess profit ruling system.
Anti-avoidance Legislation of Mayor EC Member Countries with Reference to the 2014 Corporate Income Tax Burden in the Thirty-Four OECD Member Countries: Germany, France, United Kingdom, and Italy Comp
Authors: Zielke Rainer 
Published: March 2022

Despite continuous instability in the European Community (EC) its mayor countries Germany, France, the United Kingdom, and Italy exhibit continuously economic growth and stability. According to the International Monetary Fund these European countries have - in this order - the highest gross domestic product in the European Community in 2012. In this article anti-avoidance legislation of - according to the gross domestic product - the four most important EC countries will be reviewed with reference to the tax differential to the thirty-four OECD Member Countries. The pivotal question is, therefore, to what extend can internal tax planning with mayor European countries be optimized by inclusion of anti-avoidance legislation. This article outlines the objectives and concepts of international tax planning with regard to anti-avoidance legislation and provides an overview of the concepts, laws and rules of anti-avoidance legislation in mayor EC Member Countries. After that the advantages and strategies of international tax planning with regard to anti-avoidance legislation in mayor EC Member Countries are deducted where an overview on anti-avoidance legislation of mayor EC Member Countries is provided - also with regard to new tax legislation - and locations for subsidiaries and for parent companies are reviewed. Finally, the concluding remarks are presented. Transfer pricing will not be reviewed here.
National Tax Law Presumptions and EU Law
Authors: Sanò Claudia 
Published: March 2022

Legal presumptions serve essential and legitimate needs in national legal orders, where they are introduced for the purpose of simplifying the assessment and the recovery of tax or for tackling tax avoidance or evasion. Nowadays, however, the national choices concerning the use of tax law presumptions must be tested against European Union (EU) law, both in uniform or harmonized sectors and, albeit to a different extent, in non-harmonized ones. In this article, after a brief discussion of the meaning and relevance of the concept on the basis of national juridical traditions, the case law of the Court of Justice of the European Union (CJEU) concerning the repayment of taxes unduly levied is analysed, so as to highlight the core scheme adopted when it evaluates the national tax law presumption's compatibility with EU law. Afterwards, an examination of the most relevant CJEU case law on legal presumptions in different tax matters (customs law, VAT, direct taxation) is carried out. This, with a view to catching some interpretative trends peculiar to specific domains of taxation which should guide national legislators. Finally, some general conclusions are developed on the overall approach to national tax law presumptions in the context of EU law, with an eye to national experiences.
Compatibility of IP Box Regimes with EU State Aid Rules and Code of Conduct
Authors: Luts Joris 
Published: March 2022

The European Commission has recently started examining Member States' IP box regimes under the both the (soft law) rules of the Code of Conduct on Business Taxation as well as the (hard law) state aid provisions. However, as the scope and interpretation of these rules are unclear and subject to debate, determining whether an IP box regime actually falls foul of these rules is not straightforward. In view of the European Commission's scrutiny, light must urgently be shed on this issue. In this article, the author has tried to address this compatibility query. In a first part, the characteristics of a 'generic' IP box regime are described. In a second part, the state aid provisions and rules on harmful tax competition (Code of Conduct on Business Taxation) are successively discussed. On the basis of that discussion, the author has tried to provide a framework to assess whether and to what extent IP box regimes are compatible with these rules. It is concluded that a well-designed IP box regime may pass the EU rules on state aid and harmful tax competition.
Overview of New Paths and Patterns in EU Tax Development with Focus on EU Soft Law and External Factors (Part 2)
Authors: Hinnekens Luc 
Published: March 2022

A very different - more indirect and factual than formal legal - contribution to the EU tax law-making process is that of the influence of external multi-disciplinary factors. They relate in particular to economic, political and social embedding, comparative better international law, morality and historical imprint. As they are by nature external factors - and by the same token non-legal acts - their impact on the making and evolution of EU tax law is limited to inspiring the official competent EU authorities, eventually serving as 'bottom-up' element in the hard or soft tax law-making process when recognized and legitimized by the 'top-down stamp' of the official competent EU authorities. Paraphrasing our opening citation: 'Some true, some light, but every one of you / Stamp'd with the image of the European Union'. What thus happens in the end is that we are looking, in this era of fiscal transparency, at new trends and patterns in the ongoing process of EU tax development related to the joint impacts of respectively external factors to the EU legal process (Chapter II) and of the 'reshuffling' of internal legal sources on the part of the competent EU tax authorities (and also, in different degrees and levels, of parallel international organizations as OECD) (Chapter I). Finally, in Chapter III, the discussions of Chapters I and II are related to the strategic EU development of 'ever closer union among the people of Europe'.
Tax Policy: Trends in the Allocation of Powers Between the Union and Its Member States
Authors: Kube Hanno , Reimer Ekkehart 
Published: March 2022

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).
The Report Ways to Tackle Cross-Border Obstacles Facing Individuals Within the EU
Authors: Vergouwen Mees , Pötgens Frank P.G. 
Published: March 2022

In 2015 the Expert Group of the European Commission published a report identifying various procedural and substantive tax obstacles that individuals face when operating across borders in the internal market. Regarding the identified tax obstacles, the Expert Group proposes both hard and soft law solutions which would require legislative cooperation of the Member States as the focus has been on those obstacles that cannot be tackled by the European Court of Justice (ECJ) as they qualify as disparities or justified restrictions on the fundamental freedoms. In this article the authors discuss the various substantive tax obstacles and the proposed solutions. The authors subscribe to the view of the Expert Group that harmonization of direct taxation for individuals would be beneficial for enhancing the internal market. Regarding the way in which harmonization can be achieved, the authors would prefer a directive or multilateral treaty including a one-stop-shop.
Comparative Analysis of the General Anti-Abuse Rule of the Anti-Tax Avoidance Directive: An Effective Tool to Tackle Tax Avoidance?
Authors: Öner Cihat 
Published: March 2022

The primary aim of this article is to question whether the general anti-abuse rule (GAAR) of Anti-Tax Avoidance Directive (ATAD) is an effective tool to tackle tax avoidance. By using a comparative technique as a method, other directives that include a GAAR will be analysed as a companion to the ATAD to identify whether there is a common understanding of the concept of abuse of tax laws within the EU legal order. Then the general consequences of the application of the GAAR of the ATAD will be exposed. The difficulties which could be encountered in the application procedure will be explained around some potential scenarios, based on simple models developed by the author.
Tax Avoidance, Abusive Tax Practices, Artificial/Genuine Arrangement(s), Main Purpose(s) Test, Tax Advantage, General Anti-abuse Rule(s) (GAARs), Anti-Tax Avoidance Directive (ATAD), Interest-Royalties Directive, Merger Directive, Parent- Subsidiary Directive.
The ‘DAC 6’ and Its Compatibility with Some of the Founding Principles of the European Legal System(s)
Authors: Cannas Francesco , Ballancin Andrea 
Published: March 2022

The current article has two main ‘centres of gravity’. First, it proposes a critical description of the primary points of the European Council Directive known as the ‘DAC 6’ for which the deadline for transposition into the domestic legislation of the Member States is rapidly approaching at the time of this writing. The description is contextualized in the findings of the Base Erosion and Profit Shifting (BEPS) Project. Subsequently, the authors address some of the main points raised by scholars and commentators with regard to its contents, especially the possibility that the mandatory disclosure rules clash with the professional privilege of certain tax advisors, the principle against self-incrimination, or the risk that it will initiate a ‘race to the bottom’ in the sanctioning powers to be exercised by Member States.
Administrative cooperation, Mutual Assistance, DAC 6, Directive 2011/16/EU, Directive 2018/822/EU, Professional Privilege, Self-Incrimination, European Convention on Human Rights, Penalties System, Race to the Bottom
EU Fiscal State Aid Rules and COVID-19: Will One Survive the Other?
Authors: Luja Raymond H.C. 
Published: March 2022

In order to facilitate tax relief to deal with the ramifications of the Corona virus, the European Commission temporarily eased the EU’s state aid framework. This contribution will provide a first glance of some of the tax-related measures taken both within and outside of the scope of state aid rules. Their range is wide, from tax filing and payment deferrals to changes to personal and corporate income taxes, VAT and property taxes. Some Member States still struggle with the remaining requirements not to provide tax advantages (other than deferrals) to companies already in financial difficulty before the COVID-19 lockdowns and with handling fiscal years ending after 2020. As for umbrella aid schemes that do not yet specify which measures will be taken but just serve to get approval based on a certain budget, the author suggests to provide a block exemption to reduce the need for prior notification to the Commission. Once government efforts to deal with sudden income loss, liquidity and solvency issues move to stimulating economic recovery, other policy objectives (like the Green Deal) might also enter the equation when companies apply for financial support.
COVID-19, Corona, State aid, Tax relief, Tax advantage, Tax deferral, Financial difficulty, European Union
Economic Reality in EU VAT
Authors: Nellen Frank J.G. , van Doesum Ad 
Published: March 2022

In this article, the authors analyse the notion of ‘economic reality’ in EU VAT and how it is applied by the CJEU in its case law. The purpose is to clarify the concept of economic reality, to establish how it affects the taxation of transactions, and to what extent it should affect that taxation when taking into account the principle of legal certainty.
Economic reality, EU VAT, CJEU, case law, judicial interpretation, abuse of law, legal certainty, objective character, fiscal classification, neutrality
Between Apples and Oranges: The EU General Court’s Decision in the ‘Apple Case’
Authors: Parada Leopoldo 
Published: March 2022

This contribution provides a brief summary of the EU General Court’s decision in the joined state aid cases T-778/16 and T-892/16 (‘Apple case’) and explores the main reasonings provided by the Court. In particular, it analyses the arguments related to the use of the arm’s length standard as an ‘allocation benchmark’ and the use of the OECD TP Guidelines for this purpose, including also issues of comparability and burden of proof. Finally, the commentary elaborates upon two more general implications with regard to this Court’s decision, namely the use of state aid law as a tool to tackle tax avoidance both within and outside the internal market, as well as the general approach towards ‘stateless income’.
Apple case, state aid, arm’s length, profit allocation, TNMM, selectivity, comparability, TP guidelines, stateless income, tax avoidance
Are the OECD/G20 Pillar Two GloBE-Rules Compliant with the Fundamental Freedoms?
Authors: Broe Luc De , Massant Mélanie 
Published: March 2022

In this article the authors focus on whether the Global Anti-Base Erosion (‘GloBE’) rules, as set out in an Organisation for Economic Co-Operation and Development (‘OECD’) Blueprint of October 2020, comply with the EU fundamental freedoms. This compatibility is tested in two distinct scenario’s. In the first scenario the assumption is taken that the GloBE-rules will be implemented directly by the Members States and in the second scenario the assumption is taken that the GloBE-rules will be implemented indirectly through an EU Directive. It is clear from the analysis of the first scenario that the GloBE-rules collide with the freedom of establishment. For the GloBE-rules to be fully in line with this freedom, it is recommended that they include a substance-based carve-out such like the one foreseen in Article 7(2) of the Anti-Tax Avoidance Directive (ATAD). The analysis of the second scenario, which focuses on the EU principles of subsidiarity and proportionality, shows that, even though the GloBE-rules might collide with the freedom of establishment, they could still be successfully implemented given the broad discretion that the Court of Justice of the European Union (CJEU) leaves to the Union legislature. Nonetheless, also here recommendations are made to reduce disproportionate frictions.
Pillar II – GloBE – OECD – BEPS – Minimum taxation – Tax competition – European Law – Freedom of Establishment – Subsidiarity – Proportionality
Commercial Arbitration As the Most Effective Dispute Resolution Method – Still a Fact or Now a Myth?
Authors: Okekeifere Andrew I. 
Published: March 2022

“It has always seemed to me—and I cannot resist saying this even thought it might not be traditional and to do so might be controversial—that we lawyers are too complacent. Do we examine our system often enough or closely enough to see how it can be improved? . . . How often are these fundamental questions even addressed, let alone answers sought? These and many others should be.”
per Justice Gerald Butler QC in his retirement address at the Southwark Crown Court,
London, 8 May 1997.
The Swiss Supreme Court Refits the Frigates—ICC Award Set Aside After More than Thirteen Years
Authors: Rigozzi Antonio , Leimbacher Elisabeth 
Published: March 2022

In its decision 4A_596/2008 of October 6, 2009, the Swiss Supreme Court vacated and ordered the revision of an ICC Final Arbitral Award rendered on July 31, 1996 in the so-called “frigate-to-Taiwan” case. The Swiss Supreme Court considered that the findings in the French “ordonnance de non lieu” of October 1, 2008 — namely that Mr. Sirven committed a “fraud on the judgment” by submitting a false testimony in the ICC arbitration — were conclusive enough to order the revision of the Award.
Article 123(1) of the Swiss Supreme Court Act ( Loi sur le Tribunal Fédéral) allows for the revision of an award when criminal proceedings establish that the award was influenced, to the detriment of the petitioner, by a crime or a felony. This decision, which is the first one in which the Swiss Supreme Court sets aside an award on this legal basis, further clarifies the meaning of Article 123(1) in many respects and calls for some clarifications. Finally, this decision seems to bring this political saga to an end, as it is not anticipated that a new arbitration will be initiated.
Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis
Authors: Shookman Jamie 
Published: March 2022

Parallel proceedings occur when the same cause of action is adjudicated in more than one forum, either before multiple domestic courts, domestic and international courts, or before multiple international forums. Parallel proceedings are problematic at both the national and international levels as they waste money and conflicting results undermine legal certainty. The doctrines of lis pendens and res judicata are the most common solutions to managing the problem, yet both are difficult to apply in the arbitration context. Other mechanisms, such as anti-suit injunctions, so-called umbrella clauses, and fork-in-the-road clauses, are therefore intended to target the problem of parallel proceedings in international arbitration. Parallel proceedings are particularly problematic in investment arbitration because of features in investment treaties such as bilateralism, non-exclusivity, exclusion of local remedies and multiple investor claims.
Two recent ICSID cases, SGS v. Pakistan and Toto v. Lebanon, reveal some of the current problems with creating rules on parallel proceedings in investment arbitration. The cases demonstrate that the distinction between treaty claims (which trigger ICSID jurisdiction) and contract claims (which are typically adjudicated in national courts) is untenable and likely to increase future parallel proceedings. The distinction is especially difficult to maintain because determining the nature of a claim is often a question of interpretation, and arbitral tribunals are hesitant to scrutinize a claimant’s formulation of its cause of action. The two cases also show the uncertain force of choice-of-forum clauses and how they often allow arbitrators to simply bypass parties’ previous agreements. Finally, umbrella clauses have created much confusion, as previous arbitral tribunals have interpreted nearly identical clauses in four different ways. The uncertainty surrounding the future management of parallel proceedings highlights deeper, unsolved questions regarding the power private international law affords multinational enterprises vis-à-vis sovereign states in an increasingly global legal order.