European Taxation

The present study was developed based on the IBFD EU Task Force’s submission within the framework of the European Commission 2021 public consultation on the use of shell entities and arrangements for tax purposes. The analysis of the broad ramifications of this central issue within corporate tax law and policy takes its inception from a fundamental taxonomy of the adjacent although conceptually distinct notions of aggressive tax planning, tax avoidance, tax evasion and tax fraud as well as from a thematization of the notion of substance in tax law contexts. In this respect, the authors argue that, within EU Law, these distinctions have not always been upheld consistently and such thematization may have not been fully developed, contributing to structural disconnects that may, inter alia, also jeopardize the proposed initiative. Within this study, such conceptual taxonomy is functional to laying the foundations for an assessment of some of the key articulations of the proposed initiative. In the first place, the opportunity and possible legal compatibility issues surrounding the introduction of so-called substance requirements, upon which some design recommendations are set forth without prejudice by the authors. Based on this reconstruction, rules targeting shell companies and arrangements are also addressed in both a de iure condito (from an EU and comparative tax angle) and a de iure condendo perspective, thereby including considerations on the most viable approach to hypothetically implementing such measures. Administrability issues are also explored, with specific regard to the possible tools – already available under the existing framework, or to be envisaged – meant to prevent and monitor abusive practices of shell companies. Such possible tools are assessed having in mind the concern to ensure a balance with the safeguard of the rights of taxpayers on the procedural as well as substantive planes. In the view of the authors, such a balance may be conducive to the reshaping of cross-border relations between taxpayers and administrations within the European Union.

This article provides an analysis of a Portuguese decision on the taxation of payments for software.
The main questions addressed by the Court and assessed in this article are: Is the amount taxable? Who should be taxed? When and where should taxation take place? The case of the Portuguese Supreme Administrative Court under consideration here deals precisely with these issues.
Despite of its narrow object, and in contrast with other court cases, this decision ultimately reveals the position of the Supreme Administrative Court on key issues concerning the interpretation of tax treaties, such as the relation between tax treaties and domestic law; the legal value of the OECD Model, the Commentaries, its reservations and its observations; the concept of royalties in international taxation; and the specific value of a reservation included in a treaty. Even before any assessment, the author notes the gallantry of the decision: the Court avoids seeking shelter in any procedural issue, and assesses – directly and boldly – all the issues involved in the appeal, in some cases even going far beyond what would be strictly required to resolve the case.

The digital economy provides a great field for new tax avoidance and tax evasion techniques around the world, especially by creating the opportunity to establish digital companies. The underlying principle for corporation tax is that profits should be taxed where the value is created. However, in a digitalized world, it is not always very clear what that value is, is it measurable or not, if it is, then how to measure it, or where it was created. Where digital companies have to pay their taxes? How these enterprises add value and make their profits? How the digital economy relates to the concepts of source and residence or the characterization of income for tax purposes? Do they have a physical presence (seat, side, subsidiary, etc.) or not? Is digital presence mean the place where taxes have to be fulfilled? What if a digital company is present all over the world? How do authorities exercise their supervision over them?
We can see that new techniques and methods show new tendencies of legal and illegal behaviors that require legislative answers from the states in order to maintain the legal certainty and compliance in the innovative network societies. Digital companies with cross-border activities and profit brought new challenges into taxation and tax law regulations all over the world.
International taxation conflicts may arise from the differences in tax systems, or, on the other hand, from their similarities. Double taxation, double non-taxation accompanied by tax evasion and tax avoidance mean new techniques in the digital economies. Tax avoidance may be legal or illegal, while tax evasion can only be illegal. Tax avoidance can be a method of profit maximizing by saving on tax costs (tax optimization). It does not mean that the taxpayer does not pay tax at all. Taxpayers may pay tax where it is better to pay – this leads us to the topic of tax heavens, (unlawful or unfair) state aids, tax discounts for foreign investors, etc.
On the other hand, tax evasion is illegal, that always mean the breaches of tax law. Countries and international organizations (OECD, G20, and EU) have taken several initiatives against such taxation techniques. But, why this all means a legal issue to examine? EU member states kept their competences to impose taxes and use the principle of subsidiarity to save their national interests of legislating this field. However, the European Union gained its competences and interests regarding its financial interests.
Article 325 Treaty on the Functioning of the EU (TFEU) expresses “The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union. [...] The Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests”. We can state that the financial interests of the EU are evaluated equally – at least on a legislative level − to the national financial interests of the member states. Understanding the necessity of equal evaluation of financial interests in the EU raises the question of the common legislation in the field of EU tax law, especially regarding the e-tax law. The financial interests – and their common protection – are treated in most of the cases from a criminal law perspective. However, taxation and tax law harmonization could serve as an incentive for common financial law legislation – and not only from a criminal law aspect but from a general public law one. Moreover, double taxation is already considered to be an obstacle for a free movement that should be abolished within the EU.As economic development sped up hand-in-hand with digitalization, an adequate answer of the legislator became inevitable. This article aims to examine the recent tendencies of tax avoidance, namely the double taxation and double non-taxation and to highlight those instruments that may facilitate legal harmonization of the field.

El Plan de Acción de BEPS ha adquirido un cierto grado de urgencia dada la visibilidad política alcanzada por las ineficiencias de las normas de fiscalidad internacional y su falta de respuesta a las formas de hacer negocio y de las finanzas internacionales. La evasión fiscal de las multinacionales, aireada por los medios de comunicación, intervenciones parlamentarias e informes de organizaciones no gubernamentales, ha supuesto el elemento catalizador para que este ambicioso Plan vaya cumpliendo plazos y entregas de informes de las distintas Acciones según lo previsto. Así pues, para un mejor entendimiento del significado de BEPS este estudio trata de responder a una serie de interrogantes como, por ejemplo, si es realmente la primera iniciativa multilateral de lucha contra la evasión y el fraude fiscal internacional; qué supone BEPS desde el punto de vista legal; dónde debemos colocar al Plan de Acción BEPS en el sistema legal de fuentes, qué influencia tiene en los ordenamientos jurídico-tributarios y, en particular, en España; qué impacto tiene en los jueces y tribunales; y, qué consecuencias reales se están ya produciendo en términos de litigiosidad.

This contribution discusses the possibility of tax cooperation from a European perspective. Research on tax cooperation focuses on the resistance of powerful states or the failed efforts of the OECD and emphasizes the unlikelihood of cooperation in tax matters. Important developments from the EU tend to be overlooked. This paper closes this gap by providing a detailed account of EU corporate tax policy and reconstructing the evolution of this policy field over a period of 15 years. The study is based on a chronological review of EU corporate tax provisions since 2003 and a quantitative content analysis of 936 documents from the Commission and the Council. It shows that EU corporate tax policy has undergone a significant change, which is characterized by an intensification of the regulatory efforts against corporate tax avoidance and the identification of new problems and solutions along the ideas of fairness and transparency. Contrary to conventional scholarship, those findings suggest that tax cooperation is becoming feasible within the EU, at least in the field of corporate taxation.

N RÉPONSE À LA CRISE qui secoue l'Eurozone, de nombreuses initiatives globales 2 ont été prises par la Commission en vue d'approfondir la coordination des politiques fiscales nationales (notamment en matière d'impôt des sociétés), d'améliorer le fonctionnement des impôts harmonisés (principalement la T.V.A.), et de mieux réguler la taxation du secteur financier. En outre, on relèvera les arrêts rendus par la Cour de justice en matière d'imposition à la sortie et d'abus de droit dans le cadre de la directive « fusions » (impôts des sociétés), de taux réduits (T.V.A.) et de limites à l'autonomie procédurale des États membres en matière de remboursement d'impôts contraires au droit européen.

Il Centro di Diritto Penale Tributario in collaborazione con AIGA – Sezione Genova e con il patrocinio dell'Ordine degli Avvocati di Genova e dell'Ordine dei Dottori Commercialisti ed Esperti Contabili di Genova e di Fondazione Bruno Buozzi presentano un convegno dedicato alla riforma del processo tributario.
Appuntamento per lunedì 29 marzo 2021 sulla piattaforma telematica Zoom.

Il Tribunale dell'Unione Europea ha annullato la decisione con cui la Commissione aveva affermato che i tax ruling adottati dall'Irlanda a favore di alcune società appartenenti al gruppo Apple costituirebbero un aiuto di Stato non compatibile con il mercato interno. Non sarebbe infatti dimostrato il vantaggio selettivo. Con la sentenza del 15 luglio 2020, relativa alle cause T-778/16 e T-892/16, il Tribunale dell'Unione europea ha annullato la decisione 2017/1283 della Commissione europea, con la quale era stato richiesto all'Irlanda di recuperare presunti aiuti di Stato, pari a circa 13 miliardi di euro, relativi a imposte sul reddito delle società che non sarebbero state versate da alcune società del gruppo Apple al fisco irlandese. La Commissione Europea, con la decisione 2017/1283, ha affermato che i tax ruling adottati dall'Irlanda il 29 gennaio 1991 e il 23 maggio 2007 a favore di Apple sales international (Asi), e Apple operations Europe (Aoe), società appartenenti al gruppo Apple, costituirebbero un aiuto di Stato non compatibile con il mercato interno ai sensi dell'articolo 107, paragrafo 1 del Tfue. Secondo la Commissione, l'aiuto di Stato in questione sarebbe stato concesso illegalmente dall'Irlanda in violazione dell'articolo 108, paragrafo 3, del Tfue, in quanto a tali società sarebbe stata offerta la possibilità di calcolare la propria base imponibile ai fini delle imposte dirette in Irlanda in maniera agevolata. Secondo la Commissione Europea i metodi di attribuzione degli utili alle società irlandesi del gruppo Apple (Asi e Aoe) si sarebbero discostati da un risultato basato sull'applicazione del principio di libera concorrenza, che rappresenta uno dei principi cardine nell'ambito della disciplina del transfer pricing a livello internazionale. Nello specifico, i ruling fiscali contestati avrebbero determinato una riduzione della base imponibile di Asi e Aoe e quindi una riduzione dell'imposta sulle società dovuta dalle stesse in base al regime ordinario di tassazione degli utili societari in Irlanda, conferendo pertanto un vantaggio selettivo alle stesse società ai fini dell'articolo 107, paragrafo 1, del Tfue. Il Tribunale dell'Unione Europea, con la sentenza in commento, ha invece stabilito che la Commissione Europea non ha dimostrato in maniera sufficiente la sussistenza di un vantaggio selettivo ai sensi dell'articolo 107, paragrafo 1, del Tfue. Da un punto di vista tecnico, nella sentenza del Tribunale dell'Ue hanno giocato un ruolo rilevante le linee guida Ocse in materia di transfer pricing. Nella decisione della Commissione Europea era stato contestato, tra l'altro, che né la scelta dei costi operativi come indicatore del livello di utile nei ruling fiscali contestati, né l'uso del «Berry ratio», sarebbero stati indicatori adeguati per determinare una remunerazione conforme al principio della libera concorrenza per le funzioni svolte dalla società irlandese del gruppo californiano denominata Asi. Al paragrafo 372 della sentenza del Tribunale dell'Ue è stato invece stabilito che le condizioni previste dalle linee guida Ocse in materia di transfer pricing per l'utilizzo del "Berry ratio" sono invece soddisfatte.Le autorità irlandesi non hanno quindi concesso ad Asi e Aoe un vantaggio fiscale derivante dalla mancata attribuzione ad Asi ed Aoe delle royalties del gruppo Apple ottenute dalle vendite del gruppo al di fuori del Nord e del Sud America.

The main goal of this paper is to analyze in which way the location of the holding company, eventually established in the Netherlands, can result in tax saving for a Portuguese company that is looking for internationalization.
For that same purpose is created a fictional Portuguese company whose main goal is internationalization, specifically in one country, Angola. This study also proposes to verify if the constitution of a B.V., while owning every company functioning outside the national market, would lead to a more attractive and efficient tax solution.


Neste trabalho propomo-nos a analisar em que medida a escolha da localização de uma sociedade holding, eventualmente nos Países Baixos, pode ou não implicar uma poupança fiscal significativa para uma empresa portuguesa que pretenda a sua internacionalização.
Ficciona-se o caso de um grupo empresarial português cujo objetivo prioritário passa pela internacionalização, identificando Angola como o país target para esse efeito. Pretendemos, através deste estudo, verificar se a constituição de uma B.V., que detivesse todas as empresas que atuam fora do mercado português, conduziria a uma solução fiscalmente mais atrativa e eficiente.

This article examines certain European law issues that arise from the Authorized OECD Approach (AOA) and the new Art. 7 of the 2010 OECD Model, including the applicability of the EU direct tax directives (AOA requirement that assets be effectively connected with the PE), the EU compatibility of exit taxation (on outbound asset transfers by the PE) and possible withholding taxes (on outbound “notional payments” by the PE), as well as possible use of the Arbitration Convention to resolve any disputes under the AOA.1

The CFE welcomes the judgment as it clearly refers to a case of unjustified discrimination. However, there are some questions that are left open (and that Court was not required to provide an answer). The Court’s judgment in MK reinforces the established case law that EU law prohibits the adoption of non-EU compliant regimes, even if they are offered as an option to fully EU-compliant regimes. Member States are still free to adopt optional regimes but have to ensure that each one of the routes that the taxpayer may elect does not lead to unfavourable tax treatment.
The CFE stresses, however, that the creation of EU-compliant options should not necessarily imply that Member States simply extend the rules conceived for residents to non-residents, as such extension may be quite both burdensome and disproportional.
The CFE notes that MK may lead Member States to adopt simplified rules that end up treating non-residents more favourably. Which should not be regarded as a matter of unfairness, taking into account that they will normally be again subject to taxation at the Residence Member State, which is(traditionally) the one placed in the best position to assess a taxpayer’s ability to pay and their corresponding final tax burden.

This article deals with the decision taken by the Court of Justice of the European Union in Miljoen and others (Joined Cases C-10/14, C-14/14 and C-17/14), in respect of which the Third Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 17 September 2015, following the Opinion of Advocate General Jääskinen of 25 June 2015. The cases concern the taxation of dividends received by individual and corporate non-resident taxpayers. They answer several questions in respect of the appropriateness of levying dividend withholding taxes, such as the need to allow for an offset against ordinary income tax, the deductibility of related costs and the relevance of an offset granted by a tax treaty. After illustrating the factual background, parties’ arguments and the ECJ’s decision, this Opinion Statement will focus on issues that the ECJ has left open.

In spite of the fact that almost all the European Union member States have similar principles of tax justice, there is not an express specification about them in the Primary Law of the Union. The institutions of the European Union have some tax competences given by their member States, specially highlighting fiscal harmonization of certain state taxes. The tax harmonization directives, despite this lack of express specification, cannot forget these principles of tax justice. The argument of the environmental taxation of hydrocarbons has been used to increase the fiscal pressure over the gasoline until a point where its legitimacy should be discussed, not only from the constitutional point of view, but also from the Euro-pean Union Treaties. Individual States are not the only ones responsible for this situation but also European Union institutions are, since the tax on mineral oils has been harmonized by European Union directives.

El asunto Comisión contra Grecia 1 ha venido a aumentar el número de pronunciamientos del TJUE en lo referido a las regulaciones nacionales del Impuesto sobre Sucesiones y Donaciones, y las restricciones que las mismas pueden conllevar respecto de la libre circulación de capitales. En este sentido, si bien es cierto que los impuestos directos son competencia de los Estados miembros, los mismos, a la hora de diseñar su sistema fiscal, deberán respetar el Derecho de la Unión Europea (UE).

This article deals with the decision taken by the Court of Justice of the European Union in Sopora (Case C-512/13), which was decided by the Grand Chamber of the ECJ on 24 February 2015. It concerns the question of whether a specific requirement to obtain a tax advantage for foreign (incoming) workers violates the freedom of movement of workers (Art. 45 TFEU). This case prominently raises the issue of a differentiation not between nationals and non-nationals (i.e., “vertical discrimination”), but rather between different non-nationals (i.e., “horizontal discrimination”) in the context of the taxation of payments of deemed employment expenses (“extraterritorial costs”). By clearly accepting such “horizontal comparison” in the context of Art. 45 TFEU, it resolves a question where the Court “up to now” has “given varying signals”.4 It also suggests that the Court's answer to that question might have wider application.

In this note, the elected Chairman of the Fiscal Committee of the CFE, Mr Piergiorgio Valente, provides a general outline of issues regarding the valuation of intangibles in the transfer pricing context in light of the OECD's simplification initiative by way of introduction to the CFE Opinion Statements in this regard that follow.

Autor sa v príspevku spočiatku venuje posúdeniu stupňa harmonizácie dane z príjmu právnických osôb na úrovni EÚ, jej spôsobom a jej podstaty v kontexte možnosti zavedenia európskej dane z príjmu právnických osôb, resp. vlastného zdroja založeného na dani z príjmu právnických osôb ako prostriedku na elimináciu zneužívania daňových systémov v EÚ a financovania rozpočtu EÚ. Následne autor vymedzuje hodnotiace kritériá systému financovania rozpočtu EÚ stanovených Európskou komisiou a Skupinou na vysokej úrovni pre vlastné zdroje. Ďalej hodnotí možnosť prijatia európskej dane z príjmu právnických osôb, resp. vlastného zdroja založeného na dani z príjmu právnických osôb v kontexte súčasnej politickej situácie a na tento účel prezentuje výsledky hodnotenia po aplikácii hodnotiacich kritérií. V závere autor uvádza a konštatuje na základe vykonaného hodnotenia, či je zavedenie európskej dane z príjmu právnických osôb, resp. vlastného zdroja založeného na dani z príjmu právnických osôb spôsobilé obmedziť zneužívanie daňových systémov v EÚ.

This study is focused on the tax measures that have been enacted in Portugal, following the health and economic crisis created by the SARS-CoV-2/COVID-19 pandemic.
First, it aims at comprehensively characterizing the measures enacted, structuring them by thematic clusters, enabling the reader to understand the concrete impact of the significant array of legislation and administrative guidance does not allow. Second, it aims to critically assess the measures adopted and uncover the rationale behind their adoption.
The study allowed us to conclude that the tax system was not the priority weapon used by the government to react to the pandemic. Nevertheless, many measures have been enacted, most of them with a non-substantial nature and related to the postponement of deadlines for the submission of tax returns or for payments of taxes due.
A careful review of the measures revealed that some areas could have been better dealt with, in order to increase legal certainty of the addresses of the measures. Moreover, the connection between some measures and the pandemic is not completely clear, which raises suspicion on the real reasons behind the adoption of the rules.
The same careful review has shown that many governmental actions correspond to best practices that should not only be praised but also be considered as examples to be followed by other countries. This is namely the case of the care in providing correct, easy-to-follow guidance to taxpayers on the impact of the measures that have been adopted.
All in all, these surgical tax measures adopted seem to be able to avoid further commercial and financial disruptions in the economy, avoiding situations of bankruptcy or avoidable hardships for taxpayers which would have only added more disruption to the one that the SARS-CoV-2/COVID-19 inevitably introduced.

This kind of economy challenges traditional tax concepts. That's why we have some new developments in the taxation of digital economy to improve existing concepts or to create non-existent concepts (as for crypto). It was the perfect floor to discuss the EU proposals, the French Gafa tax and the introduction by the financial law 2019 of the new concept of digital asset in the French tax code.

This article deals with the decision taken by the Court of Justice of the European Union in September 2014 regarding the compatibility of inheritance taxation with the fundamental freedoms (Commission v. Spain (Case C-127/12) and Commission v. Germany (Case C-211/13)). The authors welcome the outcome of the ECJ’s decisions in these two cases on inheritance and gift taxes in light of the free movement of capital and expects the member states to adjust their domestic laws accordingly. The authors also welcome the initiatives of the Commission in the inheritance and gift taxes field and, since only few bilateral agreements in this area exist, it urges the Commission to propose Union measures and member states to at least adopt unilateral measures to eliminate double taxation in the field of inheritances and gifts.

Nella sentenza Herst la Corte di Giustizia dell’Unione Europea da un lato conferma che l’acquisto intracomunitario ex art. 20 della Direttiva IVA presuppone una nozione sostanzialistica di “cessione” di un bene e prescinde dalla sua detenzione fisica, dall’altro indica i criteri di imputazione del trasporto unico di beni in regime di sospensione dall’accisa con riferimento ad una fattispecie concreta anteriore all’inserimento dell’art. 36 bis della Direttiva IVA. Di particolare interesse sono le argomentazioni con le quali il Giudice del Lussemburgo ribadisce l’efficacia vincolante del diritto europeo così come interpretato nelle proprie sentenze.

This article is a commentary on the decision of the Court of Justice of the European Union on the Vodafone case, C-74/78 on progressive turnover taxes.
In our view, the Court’s decision provides clarifications for ascertaining the compatibility of domestic turnover taxes with the fundamental freedoms and with Article 401 of the VAT Directive. This is particularly relevant in the current context, in which some Member States have adopted or plan to adopt turnover-based digital services taxes.
Although provided with the opportunity, the Court has avoided to explicitly address AG J. Kokott’s arguments relating to the correlation between the chosen distinguishing criterion (i.e., turnover) and the seat of the undertakings and the question whether indirect discrimination is to be taken to exist in any case if the distinguishing criterion was intentionally chosen with a discriminatory objective. Rather, the Court straightforwardly found that the distribution of the burden of a turnover tax between domestic and foreign or foreign-owned taxpayers is not an indicator of covert discrimination, unless the features of such tax “inherently” create a discrimination; the mere fact that most of the taxpayers are non-residents or owned by non-residents or that most of the tax raised is paid by them is just a “fortuitous” effect.
We note that this decision should not be seen as giving Member States carte blanche for all technical features of domestic digital services taxes, e.g., the choice of thresholds, the earmarking of revenues, or consolidation rules. One should also not forget other non-EU law concerns, given the structural inefficiencies that this type of taxes presents (e.g., economic effects, trade law, domestic constitutional law, double taxation, etc).

This article deals with the decision taken by the Court of Justice of the European Union in Sofina. In the authors’ view, it may have extended the standard of comparability, requiring (foreign) non-dividend income of the recipient to be taken into consideration in comparing the tax treatment of domestic and outbound dividends. This comparator, however, upsets the principle of territoriality, as accepted by the Court in Futura (Case C-250/95) and Centro Equestre (Case C-345/04), by requiring the source state to take into account losses that the non-resident taxpayer has in the residence state.
Taken at face value, Sofina’s impact may extend well beyond withholding taxes, specifically, and dividend taxation, more generally, by attaching a “no-loss” condition to all source state taxing rights. It may arguably even bar the permanent establishment (PE) state from taxing profits attributable to that PE if the foreign head office is in a loss position.
Moreover, applying Sofina to everyday international tax law might also not be an easy task and push administrative feasibility to its limits. The Court effectively seems to propose a non-discriminatory deferral of taxation, combined with a domestic regime, that leads to a subsequent recapture if (and only if) the non-resident taxpayer becomes profitable during a subsequent tax year.

This article deals with the decision taken by the Court of Justice of the European Union in Groupe Steria SCA (Case C-386/14), in respect of which the Second Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 2 September 2015, following the Opinion of Advocate General Kokott of 11 June 2015. The decision, which has also been the subject of an ECJ Press Release, further interprets the freedom of establishment in the context of the French intégration fiscale and clarifies that taxpayers can claim some benefits of a group taxation regime even if EU law would not allow for the full benefit of such a regime. It also confirms that an option granted to Member States under secondary EU legislation cannot justify a breach of the fundamental freedoms.

This article deals with the decision taken by the Court of Justice of the European Union in European Commission v. United Kingdom (“Final Losses”) (Case C-172/13), published on on the 3 February 2015. This case is in some ways a follow-up to the ECJ’s decision in Marks & Spencer (Case C-446/03) and comments on whether the legislative amendments introduced by the United Kingdom are sufficient to ensure compliance with EU law. After illustrating the case, arguments of the parties and decision of the Court, this Opinion Statement focuses on selected critical points from the Court’s decision and Advocate General Kokott’s Opinion.

This article deals with the decision taken by the Court of Justice of the European Union in September 2014 regarding the compatibility of inheritance taxation with the fundamental freedoms (Commission v. Spain (Case C-127/12) and Commission v. Germany (Case C-211/13)).
The authors welcome the outcome of the ECJ’s decisions in these two cases on inheritance and gift taxes in light of the free movement of capital and expects the member states to adjust their domestic laws accordingly.
The authors also welcome the initiatives of the Commission in the inheritance and gift taxes field and, since only few bilateral agreements in this area exist, it urges the Commission to propose Union measures and member states to at least adopt unilateral measures to eliminate double taxation in the field of inheritances and gifts.

This essay provides an overview of the different steps of the CJEU's reasoning when assessing the compatibility of domestic direct tax rules with the TFUE's fundamental freedoms. In the author's opinion, and from a structural perspective, the reasoning is structured in four different elements: freedoms, discrimination / restriction, justifications and proportionality. The author provides a justification for the distinction between justifications and proportionality and why the latter should be studied separately.

Today, the European Union is experiencing three crises simultaneously: financial crisis, migration crisis and solidarity crisis. In this thesis, I will use the debates on the financial transaction tax as a departure point to deal with the migration crisis under the solidarity measures of the EU. In the EU, the idea of introducing a financial tax has been stood in the middle of the political debate since 2011. The context in which the financial transaction tax is being considered seriously in the EU is connected to the general policy scheme for a common EU policy on migration. Therefore, the debates on introducing a desirable and feasible tax on financial transactions within the solidarity conditions of EU are the centre of the thesis. In other words, this thesis explores why the taxation initiatives of the EU is necessary for solidarity measures by looking at the recent debates of financial transaction tax within the EU and it tries to frame financial transaction tax a way of EU solidarity network.

The European Union is a supranational organization, its functioning is different than a government; so its taxation policy objectives. Furthermore, it can only address the issues that are integrative and common for European nation. Taxation for countries and states have always remained a sovereign function which changes in its application and goal defining with the change in socioeconomic, cultural, political situations. Even in crisis moment such policies can change. In such a context, it is perceivable that incorporating a supranational organization's taxation policies to member states context is not only challenging but also not a wiser choice. Still, EU made significant progress in harmonizing the taxation system across the continent. Tensions between the state level counterparts of EU taxation authority, the tax governance, bilateral relationship, state's diplomatic policies etc are greatly linked with the aspect. In short there were more problems, threats and challenges for the taxation policy to make its move in the reality than the dream itself. With few downturns, European economy is now enjoying a better state, depth and credibility unlike before. Such progressively impressive transition is credited to the EU taxation. This paper explains how the EU taxation has helped to pull and lift up the EU economy and social capital to today.

To ensure taxation of digital business profits, Italy has introduced a web tax on digital transactions relating to a supply of services, sparking debate both domestically and internationally, since proposals are expected from the OECD and the European Union for coordinated solutions to the issue. This article provides an overview of questions that the Italian web tax has generated, concluding that Italy’s actions have set off alarm bells that should promote prompt cooperation internationally.

[EN] “Should I stay or should I go… ”? The implementation of the EU’s internal market, characterized in the Treaty on the functioning of the European Union ( TFUE) as ”an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”, together with the persistence of considerable differences between the factual and normative conditions found by companies in the twenty-seven Member States of the Union converts the previous question from a well- known song refrain into an omnipresent sound bite, echoing in the minds of CEO’s and CFO’s all across Europe.

[IT] “Should I stay or should I go…”? L'attuazione del mercato interno dell'UE, caratterizzato nel Trattato sul funzionamento dell'Unione europea (TFUE) come “uno spazio senza frontiere interne in cui è assicurata la libera circolazione delle merci, delle persone, dei servizi e dei capitali”, unitamente alla persistenza delle considerevoli differenze tra le condizioni di fatto e quelle normative riscontrate dalle aziende nei ventisette Stati membri dell'Unione converte la domanda precedente da un noto ritornello di una canzone in un morso sonoro onnipresente, riecheggiando nelle menti degli amministratori delegati e dei direttori finanziari di tutta Europa .

[EN] “Should I stay or should I go… ”? The implementation of the EU’s internal market, characterized in the Treaty on the functioning of the European Union ( TFUE) as ”an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”, together with the persistence of considerable differences between the factual and normative conditions found by companies in the twenty-seven Member States of the Union converts the previous question from a well- known song refrain into an omnipresent sound bite, echoing in the minds of CEO’s and CFO’s all across Europe.

[SP] "Should I stay or should I go… "? La implantación del mercado interior de la UE, caracterizado en el Tratado de Funcionamiento de la Unión Europea (TFUE) como “un espacio sin fronteras interiores en el que se asegura la libre circulación de mercancías, personas, servicios y capitales”, junto con la persistencia de diferencias considerables entre las condiciones fácticas y normativas encontradas por las empresas en los veintisiete Estados miembros de la Unión convierte la pregunta anterior de un conocido estribillo en un fragmento omnipresente, que resuena en la mente de los directores ejecutivos y directores financieros de toda Europa .

This article is focused on the Court’s decision in Hornbach-Baumarkt (Case C-382/16) (Hornbach) which is an important clarification of the conditional compatibility of arm’s length-based domestic transfer pricing legislation with the freedom of establishment. Hornbach follows and confirms the previous doctrine formulated in SGI (Case C-311/08). The decision did not follow Advocate General’s approach, which would have denied comparability of domestic and cross-border situations in transfer pricing cases and, hence, prevent scrutiny of domestic transfer pricing legislation under the fundamental freedoms.
The authors welcome the requirement that Member States have to grant taxpayers the opportunity to provide evidence “of any commercial justification” for non-arm’s length transactions, with the result that a denial of that opportunity through automatic transfer pricing adjustments would render these incompatible with EU Law. In that context, it is further welcomed that “commercial justifications” may include “economic reasons resulting from its position as a shareholder of the non-resident company”. The Hornbach decision, at least in cases of non-arm’s length transactions, such as interest-free loans or gratuitous guarantees aimed at replacing equity, clearly suggests that such a shareholder interest in the financial success of the foreign subsidiary may serve as such justification.

This article examines the decision of the CJEU in Brisal and KBC Finance Ireland (Case C-18/15) of 13 July 2016. Following a Portuguese reference for a preliminary ruling, the Court’s decision provides further clarification on the permissibility of withholding taxation within the European Union. In relation to interest, the Court held that non-resident taxpayers may be subject to withholding taxes (even if comparable residents pursuing the same activity are not) but that non-residents may nevertheless not be taxed on gross income (when comparable residents are taxed on net profits) and are, therefore, entitled to deduct expenses directly connected to their business activity.

This study was drafted shortly after the announcement of the referendum by which the United Kingdom decided to leave the European Union. In this article, the authors make a comprehensive assessment of what would be the tax consequences attached the decision. The article is of interest not only for this specific case but also for any other EU Member States deciding to leave the Union.
The article starts to note that although the results of the exit referendum have been confirmed, the tax implications arising from the United Kingdom leaving the European Union will not be known until the United Kingdom invokes article 50 of the Treaty on European Union (TEU). Thus, no immediate changes have been triggered regarding the terms governing transactions carried out between the United Kingdom and other EU Member States; the United Kingdom will continue to be engaged in decision-making at the EU level as it did before. Even once article 50 is invoked, the United Kingdom will still be bound by all EU law up to the moment that the terms of the exit have been established. It will not, however, be involved in decision-making during that time. Article 50 provides for a period of at most two years between the moment it is invoked and the Member State’s actual exit from the European Union. Hence, while legislative changes may not be made immediately, the effects that an exit will have on the UK tax system are expected to be significant.
The most significant impact of the Brexit is likely to be on indirect taxes, as these are already harmonized at the EU level. In addition, the applicable rules in many areas of direct taxation that stem from EU primary or secondary law are also expected to change significantly, as the United Kingdom will become a non-Member State with regard to the application of the fundamental freedoms and the European directives. Significant developments will also occur in other areas, such as administrative regulations and social security. These are analysed in detail herein.

Abstract: In this study, tax harmonization aspects of the European Union (EU) are being examined. Financial aspects of a possible integration of Turkey with EU are also covered. With this framework, topic permits to analyze Turkey's accession and harmonization of its tax and financial policies in a context of an enlargement of the Union.
Book one is devoted to the presentation of the Union. Here, the harmonization concept explained and its relations the other disciplines being reviewed. Following chapter is describing the EU practices in terms of the theoretical contributions. The reason for such an extensive picture of the real world is the condition imposed by the EU to the new members. All new members have to accept all the existing regulation to date. However such areas in which some exceptions in the transition periods can be obtained by exemplifying the difficulties of the previous enlargements are shown. These transitory periods are generally bound to be limited to a short time. This represents obvious need for Turkey an accelerated period of preparations for accession. Otherwise the transition period would take longer. The EU members, even though are powerful enough to carry the burden of premature accession of Turkey, seem reluctant to assume such a burden. Thus, Turkey is being forced to develop its economy before the full membership.
Obviously, the common value added tax (VAT) is the major achievement of the Union. The application of such a tax in Turkey implies many related problems coming to the scene, such as the efforts to diminish the tax fraud or the determination of the relevant economic and financial policies. Turkey before accepting a VAT should consider seriously the analysis of prospective effects of such a tax. Taking into consideration of the fact that there will be no harmonization in personal income taxation within EU, Turkey may decide to intensify the coverage of personal income tax while keeping at low levels the VAT which constitutes one of the components of cost formation. In terms of such an analysis, Turkey's February/l980 VAT draft is bringing a high burden while Income Tax draft can be defined as an insufficient one.
Book two analyses the effects of the enlargement of the Union and prospects for the accession of Turkey. Here, Turkey's past relations with the Union is the major area of interest. This part followed by the search for the comparable external relations of the Union. The concessions made by the Union members to the young African nations are in some cases represent higher relative advantages in comparison to the similar concessions made to Turkey, one of the full member candidates. On the other hand, new candidates, Spain and Portugal and new member Greece seem to bring the new problems to the Union-Turkey relations as they are of similar agricultural production patterns.
The last chapter is for the review and comments on the Turkey-EU relations. Given the facts that the Agreements of Turkey with EU representing the uncertainty for the major topics and the behavior of the Turkey's governments are also far from being clear about the future of relations with EU, it is observed that the need for preparations of in-depth studies by the expert groups has become obvious. With an ever growing trade volume, Union has already become the major trade partner of Turkey. The harmonization of economic and financial policies, even in the lack of integration of Turkey to EU, is being necessitated merely by this fact. The positive result, it is believed that will only help for an increased welfare of the Turkish people and healthier Turkish economy.

In this paper, the intent is to analyze harmonization efforts, made especially by E.U. institutions, regarding exit taxation. As the content of the paper demonstrates, it will focus primarily on hot topics about the subject matter previously chosen, subject that was heavily discussed by literature law and that should evaluate any intention to legislate on it. Secondly, the Portuguese law regime will be thoroughly analyzed, before and after a critical intervention by the European Commission and by the European Court of Justice. Essentially, the goal is to generate reflection upon the questions left answered, after the alteration of the Portuguese exit taxation regime, considering its conformity with the european law, and which are some perspectives of evolution for this subject.


No presente artigo, a autora propõe-se a analisar os esforços de harmonização, impulsionados pelas instituições europeias, em matéria de tributação à saída de sociedades. Como se perceberá pelos títulos deste estudo, centrar-se-á, numa primeira parte, em hot topics relacionados com o tema elegido, aturadamente discutidos pela doutrina e que devem balizar qualquer intenção de se legislar sobre ele. Num segundo momento, passar-se-á a uma breve resenha do tratamento legal concedido pelo sistema português, antes e depois da intervenção da Comissão Europeia e do Tribunal de Justiça da União Europeia. Essencialmente procura-se lançar a reflexão sobre as questões que ficaram em aberto, após a alteração do regime português de exit taxation, tendo em vista a sua conformidade com o direito comunitário, e quais as perspetivas de evolução desta matéria.