- The impact of European Union law on the possibilities of European Union Member States to adapt international tax rules to the business models of multinational enterprises
- Volume | Issue number
- 44 | 10
- Pages (from-to)
- Document type
- Faculty of Law (FdR)
- Amsterdam Center for Tax Law (ACTL)
European Union (EU) law has played a key role in enforcing the EU BEPS agenda, while also introducing limits to the application thereof. The European Commission (EC) sees a clear link between aggressive tax planning and competition law. Against this background, EU State aid law has been employed to challenge the business models of multinational enterprises. At present there are a number of opened cases, where a decision either by the EC or the General Court of the EU is pending. These cases deal with the application of EU State aid law on inter alia tax regimes (e.g. exemption of interest and royalty payments), transfer pricing, and the misapplication of law. The approach the EC is taking in those cases, especially in matters of competence, raises a number of questions, which can only be addressed in a definitive manner by the EU Courts.
Similar issues may arise in the field of positive harmonization through the recently adopted Anti-Tax Avoidance Directive (ATAD). For instance, given that a general anti-abuse rule has been included in Art. 6 ATAD and has therefore become EU law, the EC and the EU Courts are competent to decide whether it should be applied in certain situations, and whether non-application thereof may amount to unlawful State aid. However, EU free movement law should be respected by Member States when implementing anti-BEPs measures. Accordingly, so far, the limitation on benefits clause contained in double tax treaties has been challenged by the EC, while the compatibility of the anti-avoidance rules against hybrid mismatches with EU free movement law is questionable.
- Final publisher version
If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library, or send a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible.