bluuebunny/crossref_metadata_2025_split huggingface dataset:
Exchange of Information and the Free Movement of Capital between Member States and Third Countries
Authors: Nijkeuter Erwin 
Published: March 2022

In this article, the author discusses the scope of the freedom of capital movements between Member States of the European Union and third countries. According to the ECJ, restrictions of the freedom of capital movements between Member States and third countries can be justified to ensure 'the effectiveness of fiscal supervision'. Based on case law of the ECJ, the author discusses the relevant questions to adopt this justification as suitable and proportionate. An important factor in adopting the justification 'effectiveness of fiscal supervision' is the degree to which the Member State implementing the restriction has the opportunity to exchange information with the third country. The author, therefore, discusses the possibilities available for Member States to exchange information under EC law, bilateral tax treaties, TIEAs, etc. In the author's opinion, the Member States will - given the recent extended possibilities to exchange information - no longer be able to hide behind this justification.
The Renewed EU Social Security Coordination in Regulation No. 883/2004 and Its Link with Bilateral Tax Agreements
Authors: Verschueren Herwig 
Published: March 2022

This article gives a general outline of the new European coordination rules regarding social security in Regulation No. 883/2004 that came into effect on 1 May 2010. These rules have not been fundamentally changed compared to the previous rules in Regulation No. 1408/71. However, there are some important innovations, and the provisions have been simplified, rewritten, and adapted. As for the rules on the determination of the applicable legislation, the State of employment principle has been confirmed and even strengthened. In actual practice, the new rules and agreements on a better administrative collaboration between the Member States, inter alia, via electronic exchange of data, will be of the utmost importance. Yet, this new European social security coordination has not changed anything with regard to the lack of coordination with the rules on the determination of the applicable legislation in bilateral tax agreements. This can lead to situations in which a migrating person contributes in more than one State to the funding of social security that is sometimes considered to be an obstacle to the free movement of persons. However, both from the political and legal analyses in this article, it follows that a better coordination between the rules to determine the applicable legislation in social security and in tax matters will not come about easily and probable only on a case-by-case basis.
The Influence of the Principle of Union Loyalty in Tax Matters
Authors: Wittock Nathalie 
Published: March 2022

The important but little-known Article 4, paragraph 3 of the Treaty on the European Union (TEU) expresses the principle of Union Loyalty. This article includes the principle of sincere cooperation and the obligation for Member States to help and not hinder the Union. The broad wording of this principle and its apparent obviousness falsely suggest that it is of secondary importance. In practice, the principle of Union loyalty proved decisive in capturing the precise obligations of Member States, in particular where the Treaty itself offered no solution. Not for nothing, the principle of Union loyalty is considered to be one of the main principles of the EU Treaty in legal literature. After a brief analysis of the legal context and the general meaning of the principle of Union loyalty, this article intends to examine the impact of this principle in tax matters. Based on Article 4, paragraph 3, TEU, the ECJ developed numerous principles to ensure the effectiveness of European tax measures and to make sure that - in the exercise of their sovereign fiscal powers too - Member States do not put the full functioning of the Union at risk.
The TFEU Eligibility of Non-EU Investment Funds Subjected to Discriminatory Dividend Withholding Taxes
Authors: Hippert Geoff 
Published: March 2022

Non-EU or third-country investment funds may be subjected to final withholding taxes on their dividend income earned in various Member States within the EU. Such dividend withholding taxes may be discriminatory in nature given that EU or Member State investment funds may not be subjected to them. This raises the question whether, and to what extent, third-country investment funds could access the fundamental freedoms (like the free movement of capital) – enshrined in TFEU – in order to gain some measure of tax relief from discriminatory dividend withholding taxes. This article examines what terms of comparability the European Court of Justice (‘ECJ’) has developed in its recent case law in determining whether a restrictive dividend withholding tax is discriminatory vis-à-vis a third-country investment fund as compared to a Member State investment fund. In particular, the article examines how the ECJ considers compliance with UCITS (as well as other regulatory frameworks) in its determination of whether restrictive dividend withholding taxes are discriminatory. Regarding grounds of justification, the article considers ECJ case law that – within a third-country context – establishes that some forms of justification (like the need to guarantee fiscal supervision) could very well justify a discriminatory dividend withholding tax under certain circumstances.
State Aid, Taxation & Transfer Pricing: Illegal Fiscal State Aid Granted to Starbucks?
Authors: Vos Bram 
Published: March 2022

On 21 October 2015 the European Commission alleged the Netherlands of granting illegal fiscal State aid to Starbucks by misapplying the so-called ‘EU arm’s length principle’ through an Advance Pricing Agreement concluded between the Dutch tax administration and Starbucks. Accordingly, no market based (read: too high) transfer prices would have been adopted by Starbucks, resulting in an assumed reduction of taxable income and thereby also in a reduction of imposed corporate income tax. The Netherlands and Starbucks however disagree with the European Commission’s finding of State aid and applied for annulment of the EU Decision at the General Court. This article will discuss in what way and to what extent the reasoning of the European Commission in the EU Decision is in conformity with Article 107 TFEU and (the explanation of) the EU arm’s length principle (by the CJEU). The author will elaborate on the factual and fiscal background of the case and provide an assessment of the contested reasoning in the EU Decision. In addition, the issue on the potential existence of an ‘EU arm’s length principle’ will be discussed by the author based on jurisprudence of the CJEU.
Special Tax Zones and Proportionality: A New Parameter for the Necessity Test
Authors: Cipollini Claudio 
Published: March 2022

The judgement of proportionality under the variables of fundamental freedoms and State aid rules is a process that often fails to promote legal certainty with respect to the necessity test, especially when the review involves tax measures of a Special Tax Zone (STZ).
The central idea of this article suggests the possibility of a new parameter for the necessity of territorial tax measures in order to limit the discretionality of the EU institutions and contribute in terms of legal certainty.
For this purpose, the concept of ‘fiscal residue’ is presented, giving evidence of its possible implementations in the context of STZs as an objective parameter for the necessity test, for both fundamental freedoms and State aid rules.
The discussion of the results covers the EU law and national law perspectives as well as the possibility of a system of EU governance for the use of the fiscal residue with respect to STZs.
Finally, the new outlook of the necessity test is focused on the equalization of the fiscal residue, opening doors for a more comprehensive idea of European Union, including the value of social cohesion at the territorial level.
Special tax zones, EU tax law, Territorial tax incentives, Fundamental freedoms, Regional fiscal aid, Proportionality, Necessity test, Least restrictive alternative, Fiscal residue, Horizontal fiscal balance, Fiscal equalization
Tax Abuse and Legal Pluralism: Towards Concrete Solutions Leading to Coordination Between International Tax Treaty Law and EU Tax Law
Authors: De Pietro Carla 
Published: March 2022

As will be demonstrated in this article, the concepts of abuse adopted at EU and OECD level do not coincide completely.
As a result of these differences, conflicts may concretely arise between the EU and international obligations held by the same EU Member State. Furthermore, due to legal pluralism (i.e. the fact that each legal system, in principle, is developed and, therefore, functions autonomously on a global level) very often, in case of conflict, different conflict rules will be applicable, without the possibility of guaranteeing coordination between international tax treaty law and EU tax law.
In the absence of common coercive solutions, the author argues that coordination between international tax treaty law and EU tax law requires a dialectical approach through which conflicts can be managed. Therefore, conflicts become an opportunity for discussion and negotiation in order to pursue – step-by-step – solutions conciliating the international and the EU tax systems. Indeed, the achievement of complete coordination could not be immediate, but require intermediate steps. Any dialectical approach requires phases of compromise. This is implicit in the concept of managing conflicts on which legal pluralism is based.
Tax Abuse, Legal Pluralism, Coordination, tax treaties, EU law, conflict rules, double taxation, fundamental freedoms, artificial arrangement, proportionality, legal certainty, dialectical approach, PPT rule
VAT Deduction: The Relevance of Being ‘The Recipient’ of a Supply and the Use of the Supply
Authors: Bijl Jeroen 
Published: March 2022

In this article, the author scrutinizes the current state of CJEU case law about VAT deduction on the purchase of goods and services by businesses, where third parties (also) benefit from these purchases. He also discusses case law about the VAT consequences of business funding transactions between two unrelated parties, where they have a financial interest in funding those transactions because they can lead to, for example, an increase of the turnover generated with their own taxed activities. The author comes to the conclusion that under the current provisions of the EU VAT Directive and CJEU case law, VAT deduction is not always allowed where, based on the principles of neutrality and economic reality, it should. He also offers a suggestion for adjusting the current rules in order to solve the issues that were highlighted in this article.
EU VAT, Deduction, Benefit, Third-party-payments, Economic activities, Neutrality, Business promotions, Necessary costs
BEPS Developments in Direct Taxes in Light of the EU VAT Treatment of Shareholding and Financing Activities
Authors: Velthoven Max , Zeegers Michel 
Published: March 2022

In the Base Erosion and Profit Shifting (BEPS) era, direct taxes such as corporate income tax and withholding tax increasingly require taxpayers to align shareholding and financing activities with economic reality. As a result, it is expected that such activities will more often be performed by entities that also have ‘regular’ operating activities. For VAT, shareholding activities may be considered noneconomic activities and financing activities are typically exempt from VAT, with both activities therefore potentially leading to a limitation of the input VAT recovery right. As entities with regular operating activities are expected to incur more costs (which may be subject to VAT), any VAT recovery limitation resulting from non-economic or VAT exempt activities may have more impact for such entities. The shift towards economic reality in direct taxes can therefore lead to an increase in irrecoverable VAT. This article discusses the treatment of shareholding and financing activities under the EU VAT Directive in light of current developments in direct taxes such as the OECD BEPS project and the ‘Danish cases’ issued by the Court of Justice of the European Union (CJEU). The authors use an example of a multinational group to illustrate that developments in direct taxes may indirectly lead to adverse VAT consequences. The article provides taxpayers, their advisors, and policy makers with recommendations from a VAT perspective in light of the changes in direct taxes. The authors also recommend that the interaction between direct taxes and VAT receives more attention in the legislative process, especially in the context of further European harmonization.
VAT, BEPS, anti-abuse, VAT recovery, economic reality, PPT, Multilateral Instrument, Danish cases, economic activity, Brexit
Is There a Special Enforced Tax Collection Regime Under the ECtHR Case Law?
Authors: Bahceci Baris 
Published: March 2022

This article examines the extent to which the European Court of Human Rights (ECtHR) takes into account the privileged nature of tax claims in enforced collection proceedings. Conducted within the framework of the right to property, the aim is to find a response to this question: Does the ECtHR case law allow for a special regime in enforced debt collection proceedings? A definitive answer to such a question requires a comparison between Court judgments on tax debts and non-tax debts. Under both the lawfulness and legitimate aims tests, no distinction appears between these two types of debt. On the other hand, under the proportionality test, the Court generally grants a wide margin of appreciation to States Parties. In this respect, two different dimensions are encountered, namely, the tax collector versus tax debtor and the tax collector versus other creditors. While the ECtHR does not allow differences between the collection regimes of non-tax debts in the former relationship, it appears that in the latter, the Court maintains the privileged status granted to the tax collector in domestic law. However, this privileged status is not unique to tax debts. Therefore, the article concludes that there is no special status for the tax debt enforcement regime under a comparison with non-tax debts.
Tax information reporting, Digital platform, Sharing economy, Gig economy, OECD, European Commission
The Development of the Doctrine of Abuse of Law and the Danish Cases: Time to Shift the Focus from Non-Genuine Arrangements to Single (Abusive) Transactions?
Authors: Cannas Francesco , Ballancin Andrea 
Published: March 2022

The article first retraces the history of the standards adopted under the EU abuse of law doctrine to identify abusive conduct executed by the taxpayer. Then, the authors progress from the differences between the rules contained in the Anti-Tax Avoidance Directive (ATAD) and the findings of the CJEU in the Danish Cases, which constitute the last steps of that history, and elaborate on some proposals in order to update the former in light of the judges’ findings. They propose shifting the focus from non-genuine arrangements to single (potentially abusive) transactions, also taking into consideration the criteria relied upon in transfer pricing and controlled foreign company (CFC) legislation to ascertain whether economic substance is present.
abuse of law, ATAD, Danish Cases, GAAR, arrangement, transaction, fundamental freedoms, genuinity, artificiality, transfer pricing.
Cloaking Member State Objectives Through Legislative Instruments
Authors: Deák Dániel 
Published: March 2022

This contribution discusses special sectoral taxes and analyses the CJEU judgments that have been made on their compatibility with the EU law. These taxes have aroused particular attention because they are levied on sales with progressive rates. As they mainly affect large businesses owned by non-domestic persons, the European Commission took action against suspected illegal state aid. The Commission has still failed to defend its position before the EU judicial authorities.
The literature has extensively criticized the CJEU-judgments. To date, however, no author has argued that Member States’measures leading to covert state aid and indirect discrimination are a consequence of the populist state’s abuse of power and that abuses are closely linked to the decline of political democracy and the rule of law in these jurisdictions. As things stand today, the EU legal instruments have not sufficiently unveiled the type of abuse. The present paper seeks to explain how the Member States could commit abuses of taxation power when applying special sectoral taxes.
progressive sales taxes, tax harmonization, distributive justice, selectivity, reference framework, covert state aid, indirect discrimination, abuse of power, cloaking Member State objectives, seemingly objective legal criteria
Non-Adversarial Mediation
Authors: Hill Richard 
Published: March 2022

“That war is an evil is something that we all know, and it could be pointless to go on cataloguing all the disadvantages involved in it. No one is forced into war by ignorance, nor, if he thinks he will gain from it, is kept out of it by fear, The fact is that one side thinks that the profits to be won outweigh the risks to be incurred, and the other side is ready to face danger rather than accept an immediate loss.”
Thucydides, circa 400 B.C.
Compensation for Moral Damages in Investor-State Arbitration Disputes
Authors: Dumberry Patrick 
Published: March 2022

This article examines the issue of monetary compensation awarded by arbitral tribunals for moral damages suffered by foreign investors in the context of investor–state arbitration. It examines the nature and the function of moral damages in international investment law as well as several controversial issues, including the proper form of reparation to remediate moral damages suffered by a state, whether proof of malicious intent is a necessary condition for a tribunal to award compensation and whether compensation should be limited to cases involving “egregious” or grave treaty violations. The article argues that particularly condemnable governmental actions toward foreign investors will have a bearing on the actual quantification of the amount of compensation to be awarded for moral damages. The goal is not only to remediate the actual damage suffered but also to send a “clear message” to the host state.
“La réparation morale contient un élément de châtiment”
Hersch Lauterpacht
Reflections on Gao Haiyan  Of Arb-Med, Waivers, and Cultural Contextualisation of Public Policy Arguments
Authors: Yeoh Friven , Ang Desmond 
Published: March 2022

'[I]t is an extraordinary proposition that a member of the Tribunal, in the course of hearing an arbitration, could be involved in a mediation process.' (per Saunders J in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited) 'The problems inherent in med-arb are such that many arbitrators decline to engage in it. They view the risk of apparent bias arising from their participation in med-arb as an insurmountable difficulty.' (per Reyes J in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited) 'With respect, although one might share the learned Judge's unease about the way in which the mediation was conducted because mediation is normally conducted differently in Hong Kong, whether that would give rise to an apprehension of bias, may depend also on an understanding of how mediation is normally conducted in the place where it was conducted.' (per Tang VP in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited) The remarkable spectrum of views held by judges of the Hong Kong courts (see above) in relation to the concept of 'arb-med' sets the stage for the ventilating of a number of interesting and complex issues concerning the scope of the public policy exception in the enforcement of foreign arbitral awards in Hong Kong. This article examines the analyses adopted by the Hong Kong Court of Appeal in granting enforcement of a Mainland China arbitral award which was alleged to have been tainted by apparent bias by reason of an 'arb-med' procedure. This article also examines in greater details some of the implications arising from this decision.
Collective Consumer Arbitration in Spain: A Civil Law Response to US-Style Class Arbitration
Authors: Strong S.I. 
Published: March 2022

For years, the international legal community has debated the propriety of large-scale arbitration. Most of the analysis has focused on the pros and cons of class arbitration, based on the apparent assumption that any future forms of large-scale arbitration will follow the model initially developed by the United States in the 1980s. However, other types of group arbitration are also possible, as demonstrated by a unique form of collective consumer arbitration created by the Spanish legislature in 2008. The Spanish approach to large-scale arbitral proceedings is intriguing in a variety of ways, not the least of which is its ability to overcome some of the obstacles to US-style class arbitration that arise as a matter of European and national constitutional law. However, the Spanish model also reflects a number of areas of concern. This article therefore takes an in-depth look at the Spanish statute on collective consumer arbitration to determine whether the procedure offers a realistic and widely applicable civil law response to US-style class arbitration.
The Implications of International Commercial Courts on Arbitration
Authors: Smith Kayleigh M. , Demeter Dalma R. 
Published: March 2022

The recently created Dubai International Financial Centre’s (DIFC) Courts and the Singapore International Commercial Court (SICC) aim to grant the same benefits to parties as international commercial arbitration, offering something of a hybrid; not quite arbitration, but not quite litigation in a national court either. However, their current model is little more than a national court in an arbitral tribunal’s clothing. Nevertheless, the advantages and disadvantages of the two systems seem to balance each other out overall, with the notable exception of the enforceability of the outcome. The DIFC Courts’ proposed mechanism to transform its judgments into arbitral awards raise the question of definition for arbitral awards and disputes, and raises dilemmas with regard to the impact it has on the review of the decision solving the initial dispute. The broader implication of this innovative process is that it can create an enforcement mechanism of foreign court judgments in all New York Convention states, broadening the scope of the Convention beyond what it was envisaged to cover, while also essentially eliminating the judicial review intended to be performed under the Convention over decisions rendered on disputes. Whether this innovative procedure will result in a more efficient form of harmonization, circumventing the difficulties posed by the absence of global harmonization on the recognition of foreign court judgments, or the risk of abuse will result in damaging already harmonized laws, will remain to be seen.