CJEU – Recent Developments in Direct Taxation 2023

S. 261The logical foundation of the Court’s case law on direct tax

A conference on current case law is a natural occasion for a discussion of trends and themes which may be of importance. It also offers an opportunity to reflect on underlying issues which are not obvious but nevertheless have an influence on how cases are treated. This note seeks to draw attention to one question that might merit more study.

From the late 1990s onwards, the case law of the Court of Justice on direct taxation has incorporated the rhetoric of obstacle and justification. This represented a belated adoption of the language and logic used in the general case law on the Treaty freedoms.

That case law had seen a change in focus in the 1980s and 1990s. From an analysis founded essentially in the concept of discrimination on the basis of nationality, it evolved into one based on the existence of an obstacle to free movement, whether discriminatory or not. Any such obstacle is to be considered contrary to Union law unless it is justified by imperative reasons relating to the public interest and that interest cannot be safeguarded by less restrictive measures. First developed in the field of free movement of goods, th...