Justice, Equality and Tax Law

S. 2821. Introduction

The fundamental freedoms are argued to have a “dual legal structure”. For one, they are assumed to be special manifestations of the equality principle through their non-discrimination. Secondly, it is said they express a freedom aspect with respect to their non-restrictions. While non-discriminations prohibit unfavourable treatment of economic cross-border activities compared to purely domestic activities, non-restrictions forbid measures hindering the market access regardless of how domestic situations are treated by the respective Member State. Both components are complementary legal tools to realize the internal market concept of the EU. Non-restrictions are thereby frequently subject of decisions by the Court of Justice of the European Union (CJEU) in the field of non-tax law. In the area of tax law, however, only a few disputed cases can be found for which the CJEU decided for a restriction of a freedom. Thus, it could be argued that the fundamental freedoms are indeed special principles of equality in the field of tax law. In that context, this thesis will first introduce general aspects of EU tax law and the principle of equality before covering the direct tax...