scholarly journals Dysfunctionality from the Sovereignty Conflict in the ATAD GAAR

2020 ◽  
Vol 10 (1) ◽  
pp. 97-122
Author(s):  
Kaido Künnapas
Keyword(s):  
Internal Structure ◽  
Tax Avoidance ◽  
Case Law ◽  
Tax Planning ◽  
Tax Law ◽  
Member States ◽  
Economic Reality ◽  
Two Stages ◽  
Domestic Law ◽  
The Eu

Abstract Deriving from the internal structure of Article 6 of the EU Anti-Tax Avoidance Directive, the abuse of tax law is overcome in two stages—elimination and requalification. While the elimination stage (addressing how not to tax) is harmonized by the EU for the purpose of fighting against aggressive tax planning, the requalification stage (addressing how to tax then) remains under the sovereignty of Member States. Applying such a two-level mechanism becomes problematic if there is a mismatch between these two stages so that the harmonized GAAR requires elimination of an arrangement, but the domestic law does not provide an alternative basis for taxation of it. This raises a question of whether Article 6 of the ATAD requires the Member States to impose new taxable objects regardless of the literal interpretation of Article 6(3) which recognizes the full sovereignty of Member States to decide what to tax. By applying interpretation methods used by the CJEU in its case-law—i.e., literal, contextual, teleological and comparative—the author argues that the answer to this question is “no”. This is supported by all the interpretations under the above method, while the dysfunctionality of these two stages could be overcome by treating the economic reality test as an objective test regardless of the notion of “commercial reasons” used in Article 6(2).

The Accrual Accounting Principle and its Implications for Portuguese Tax Courts Decisions

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Daniel Taborda ◽  
João Sousa
Keyword(s):  
Tax Avoidance ◽  
Case Law ◽  
Tax Law ◽  
Income Transfer ◽  
Legal Decisions ◽  
Taxable Income ◽  
Principle Of Justice ◽  
Legal Arguments ◽  
Accounting Principle ◽  
Flexible Application

AbstractTo the best of our knowledge, this is the first paper focusing on the interpretations issued by different Portuguese courts concerning the application of the accrual principle established in the Corporate Income Tax Code.This paper uses a database of the Portuguese tax courts’ decisions and employs a case law-based research methodology to address the following question: under which circumstances the principle of justice may affect the strict application of the accrual principle? After collecting twenty-four legal decisions related to the application of the accrual principle outlined in tax law, this paper summarises eleven, grouping them according to the different issues under dispute. This analysis also includes the confrontation of the assumptions used by the tax authority and the claims of the taxpayers, identifying and discussing the legal arguments to override the strict application of the accrual principle.The main conclusion is that Portuguese courts may summon the principle of justice in taxation when taxpayers violate the accrual principle, in order to prevent unfair corrections to taxable income performed in tax audits. This paper found that the tax authority typically demands a rigid use of the accrual principle while the taxpayers often argue for a more flexible application. This last perspective has been adopted by the tax courts in certain circumstances, in particular when taxable income transfer was not motivated by tax avoidance.

European Union Plant Variety Protection

2021 ◽  
Author(s):  
Gert Würtenberger ◽  
Martin Ekvad ◽  
Paul van der Kooij ◽  
Bart Kiewiet
Keyword(s):  
European Union ◽  
Case Law ◽  
Patent Infringement ◽  
Practical Relevance ◽  
Member States ◽  
Plant Variety Protection ◽  
Eu Member States ◽  
Plant Variety ◽  
Variety Protection ◽  
The Eu

This book explains how the Community plant variety rights system works and provides guidance regarding the field of law relating to the Basic Regulation and other implementing regulations. It gives an idea of how the grant system works, the advantages of Community plant variety rights, and the aspects to be considered in exploiting and defending. It also explains the mechanisms in the Basic Regulation on how infringements of Community plant variety rights should be dealt with, including certain enforcement systems of the EU Member States. This book analyses major aspects that are considered of practical relevance in infringement proceedings under the applicable national law. It elaborates how the case law is limited in comparison with patent infringement proceedings throughout the EU Member States.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

scholarly journals The ‘Territory of the Union’ in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives

2019 ◽  
Author(s):  
Niamh Nic Shuibhne
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
Union Citizenship ◽  
Union Territory ◽  
The Eu

Abstract This paper examines the growing significance of the ‘territory of the Union’ in EU citizenship law and asks what it reveals about Union citizenship in the wider system of the EU legal order. In doing so, it builds on scholarship constructing the idea of ‘personhood’ in EU law by adding a complementary dimension of ‘place-hood’. The analysis is premised on territory as a place within—but also beyond—which particular legal qualities are both produced by and reflect shared objectives or values. In that respect, the paper offers a comprehensive ‘map’ of Union territory as a legal construct, with the aim of uncovering what kind of legal place the territory of the Union constitutes as well as the extent to which it is dis-connectable from the territories of the Member States. It also considers how Union territory relates to what lies ‘outside’. It will be shown that different narratives of Union territory have materialized in the case law of the Court of Justice. However, it is argued that these segregated lines of reasoning should be integrated, both to reflect and to progress a composite understanding of Union territory as a place in which concerns for Union citizens, for Member States, and for the system underpinning the EU legal order are more consistently acknowledged and more openly weighed.

Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?

2005 ◽  
Vol 12 (3) ◽  
pp. 227-240 ◽  
Author(s):  
Gareth Davies
Keyword(s):  
Higher Education ◽  
Case Law ◽  
Social Effects ◽  
Eu Law ◽  
Financial Benefit ◽  
Member States ◽  
Policy Issues ◽  
Eu Member States ◽  
Law And Policy ◽  
The Eu

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.

Public Security Derogations to the Free Movement of EU Citizens and Preventive Criminal Law: A Collision between Ever-Expanding Concepts?

2019 ◽  
Vol 27 (4) ◽  
pp. 293-319
Author(s):  
Alejandro Sánchez Frías
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Case Law ◽  
Free Movement ◽  
Public Security ◽  
European Level ◽  
Member States ◽  
Eu Directive ◽  
The Eu

The threat of foreign terrorist fighters has led to the development of preventive criminal law on an international and European level. The EU Directive on combating terrorism can have two impacts on the free movement of EU citizens. It directly calls upon Member States to criminalise the act of travelling, as well as other conduct that may be connected to a terrorist offence. In addition, ecj case law accepts EU criminal law as a basis for public security derogations against free movement. Therefore, the commission of any of the acts criminalised in the EU Directive on combating terrorism could be used as a reason to restrict the exercise of free movement by EU citizens. When Member States begin to adopt these measures, litigation on the balance between preventive criminal justice and free movement of EU citizens will increase.

scholarly journals The Limits of Agencification in the European Union

2014 ◽  
Vol 15 (7) ◽  
pp. 1223-1255 ◽  
Author(s):  
Miroslava Scholten ◽  
Marloes van Rijsbergen
Keyword(s):  
European Union ◽  
Case Law ◽  
Lisbon Treaty ◽  
Democratic Legitimacy ◽  
The European Union ◽  
Member States ◽  
The Road ◽  
European Court ◽  
On The Road ◽  
The Eu

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

scholarly journals The other side of tax discrimination

2019 ◽  
Vol 40 (2) ◽  
pp. 929-956
Author(s):  
Mateusz Wąsik
Keyword(s):  
Sexual Orientation ◽  
Case Law ◽  
The European Union ◽  
Eu Member States ◽  
Legal Provisions ◽  
Long Run ◽  
European Court ◽  
Domestic Law ◽  
Personal Taxation ◽  
The Eu

The purpose of the paper is to present the tax consequences resulting from the lack of recognition of registered partnerships and same-sex marriages in certain EU member states, taking the example of Poland. These aspects are usually perceived as discrimination of citizens based on their sexual orientation. The author of this paper has focused on various aspects of possible discrimination, mainly concerning discrimination on the grounds of personal taxation, including inheritance and gift taxes. For these purposes, the author analysed the domestic tax rules differentiating couples living in a marriage and couples without that possibility. These legal provisions have been analysed together with the most recent domestic jurisprudence. Furthermore, the paper presents comparative analyses of domestic rules with EU law. Due to the lack of case-law oriented towards fiscal discrimination due to sexual orientation, the relevant CJEU (the Court of Justice of the European Union, hereinafter: the CJEU) and ECHR (the European Court of Human Rights, hereinafter: the ECHR) case-law have been recalled to reveal possible violations of fundamental freedoms and tax discrimination. The author makes a connection between the lack of proper regulations implemented in the domestic law with the unjustified differentiation of cross-border families on tax grounds. In the long run, only the harmonisation of personal taxation at the EU level can lead to a resolution to this situation. Alternatively, as an interim solution, the relevant ECHR judgment may be of assistance.

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