Introduction to European Tax Law on Direct Taxation

S. 64I. Scope

A. General

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The EU fundamental freedoms form the backbone of the internal market. The main goal of that market is to achieve the most efficient allocation of resources possible within the Union by means of free movement of the factors of production – capital and labour, as well as production outputs – goods and services. To achieve this aim, EU substantive law demands that Member States stay neutral toward private parties that conduct cross-border activities; they shall neither penalize such activities by imposing restrictions, nor create selective incentives by means of illegal State aid. This chapter will focus on the tax related restrictions on cross-border activities; while State aid is discussed later on in the book (see Chapter 4).

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Even though Member States remain competent in the area of direct taxation, the CJEU has consistently held in its case law that they must nonetheless exercise that competence in line with EU law, inter alia, by avoiding restrictions on the fundamental freedoms. Thus, EU law restrains the tax sovereignty of the Member States.

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The central underpinning of EU internal market law is non-discrimination between domestic and cross-border situations. Thu...