Non-Discrimination in European and Tax Treaty Law

I. S. 20Introduction

In February 1995, the Schumacker decision of the ECJ triggered a completely new approach to addressing non-discrimination in the EU. Biehl had already been a precursor of future discussions in relation to the free movement of workers.

If we look at the Schumacker case and some other cases following the Schumacker decision, the challenge of the ECJ is to distinguish between acceptable and non-acceptable criteria that are imposed on cross-border economic activities. The ECJ did not provide any clear guidance as to under which circumstances resident and non-resident taxpayers are in a similar situation. As a result, the decisions are lacking any clear guidance and therefore the ECJ’s tax jurisprudence is highly controversial. Therefore, according to Michael Lang and Richard Lyal, the ECJ should give up the idea of the obligation of a state to take into consideration personal and family circumstances: it should rather in every single case in the residence state as well as in the employment state ask whether non-residents are in a discriminatory situation compared to residents or whether cross-border situations within the EU are discriminated against in relation to nationa...