Non-Discrimination in European and Tax Treaty Law

I. S. 268Introduction

In the field of EU law, the ECJ protects the fundamental freedoms of movement of goods, workers, capital and services. Any disadvantage or less favourable treatment that might jeopardize the TFEU fundamental freedoms will be regarded as discriminatory by the ECJ. However, sometimes an optional regime that is in line with EU law can co-exist with a disadvantageous regime, providing an option for taxpayers. In the face of a less favourable treatment, affected taxpayers have the choice, based on free will, to apply the optional regime and in doing so to avoid the disadvantage.

This thesis will analyse: (i) the premises of the optional regime argument; (ii) the most important ECJ cases on optional regimes; and finally (iii) whether such optional regimes can remedy a discriminatory treatment, or whether such optional regimes are likely to be incompatible with the TFEU fundamental freedoms.

II. Understanding an Optional Regime

A. Discriminatory Treatment

The TFEU establishes four fundamental freedoms, which are the freedoms of movement of goods, workers, capital and services. The four fundamental freedoms provide for a prohibition of discrimination on grounds of nationality or...