Lyal, Richard --- "Commentary" [2013] ELECD 1165; in Lang, Michael; Pistone, Pasquale; Schuch, Josef; Staringer, Claus; Storck, Alfred (eds), "Corporate Income Taxation in Europe" (Edward Elgar Publishing, 2013) 345

Book Title: Corporate Income Taxation in Europe

Editor(s): Lang, Michael; Pistone, Pasquale; Schuch, Josef; Staringer, Claus; Storck, Alfred

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781782545415

Section Title: Commentary

Author(s): Lyal, Richard

Number of pages: 10

Abstract/Description:

Although her chapter deals principally with CFC rules, Dr HJI Panayi begins with a brief description of the CCCTB proposal as a whole. That seems a sufficient pretext to include a few general remarks. It may be recalled that 2011 was the silver jubilee of the “avoir fiscal” judgment, and it is worth reflecting on the importance of “avoir fiscal” as part of the context for the CCCTB proposal. In that seminal judgment the ECJ not only established the principle that the Treaty freedoms apply in the field of direct taxation just as they do in any other field of national legislation but also laid down the basic logic that it has continued to pursue in subsequent cases. The Court first stated that in general, tax rules must apply in a non-discriminatory manner to domestic and to cross-border situations. It then discussed the justifications which may be advanced for different treatment of these two categories. Much of the later case law may be regarded as little more than a gloss on “avoir fiscal”, though recent years have seen the development of new theories of justification and a particular emphasis on the concept of balanced allocation of taxing rights. During the intervening period, and in particular over the last dozen years, a large number of cases on direct tax have come before the ECJ. Most of them concern the application of the Treaty freedoms, and most of the recent cases revolve around the apprehension felt by Member States regarding possible erosion of their tax base.