Attending students: core reading provided by the Professor.
Non attending students: O'Shea T., Understanding EU Tax Law, Avoir Fiscal Publications, 2020
Learning Objectives
Developing an awareness of the purposes and functions served by the legal framework governing domestic, eu, and international tax law.
Prerequisites
Excellent english knowledge.
Teaching Methods
Face to face reading. Core reading will be uploaded on Moodle.
Type of Assessment
Oral examination. The evaluation will include the ability to answer the question, the ability to make connections between different scopes, the appropriateness of the legal language used.
Course program
The module on EU TAX LAW follows the analytical articulations of the Court of Justice's reasoning in its case law.
The first step is to become confident with the content of the Fundamental freedoms by analysing the main "questions" concerning identifying the single freedom's content and perimeter.
We will then distinguish the so-called "restrictions" and "quasi-restrictions". Whilst the former is an obstacle to the full enjoyment of the fundamental freedoms, incompatible with the Treaty on the Functioning of the European Union (TFEU), the latter - while also including obstacles to the exercise of such freedoms - at the current stage of the EU law evolution, is neither prohibited nor incompatible.
We will then examine the actual restrictions on the exercise of Fundamental Freedoms. At such stage, the "Principle of National Treatment" will be introduced, and the different types of restrictions resulting from its non-compliance by the Member States will be described.
To understand the rationale behind the Court's decisions, it will be crucial to outline the two perspectives from which it will interpret the interaction between EU law and national law, namely the perspective of the host State ("host" perspective) and that of the State of origin ("origin" perspective).
Once we have mastered such an interpretative tool – the "host" perspective and "origin" perspective - we will be able to explore the principle of "National Treatment".
At such stage, we will see how the Court has clarified that the Treaty does not require compliance with the principle of "national treatment" only concerning rules that take nationality as a standard for linking a natural or legal person to a given Member State; but, under specific conditions, also relating to the rules (typically tax rules) that use the residence as a linking rule (the so-called. "Sotgiu rule").
Although most of the restrictions we will encounter depend on the breach of the "national treatment" principle, there is also a type of restriction which is not affected by it. The following categories will be examined.
(A) Restrictions arising from the breach of the "Principle of National Treatment":
(B) "Absolute" restrictions ("even-handed restrictions"): these are restrictions introduced by the Member State from an "origin" or "host" perspective, which, while not distinguishing by nationality or residence of the natural/legal person, nevertheless constitute an obstacle to the exercise of fundamental freedom.
Going further, we will analyse the assumptions of the "Sotgiu rule" application and, hence, the comparability issue between the resident and the non-resident. The comparability test is a crucial moment in the Court's analysis, given that it is from such an assessment that it can be established whether - in the circumstances in which residence is deemed as a territorial link factor - the Member State is obliged to comply with the principle of "National Treatment”.
It is at this stage that we will deepen the analysis of EU jurisprudence, interpreting the reasons based on which it found the comparability between the "resident-non-migrant" and "non-resident-migrant" from the "host" perspective and between the "resident-migrant" and the "resident-non-migrant" in the "origin" perspective.
Finally, the last part of the module focuses on the sensitive role of mediation that the Court - using the Rule of Reason and operating by the "Gebhard rule" - performs to balance the implementation of freedoms with the very existence of sovereign States.