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Fundamental Freedoms and Tax Law

Over the past 25 years, the European Court of Justice (ECJ) has invalidated many direct tax law provisions of European Union Member States as violating the EC Treaty’s fundamental guarantees of freedom of movement for goods, services, persons, and capital. However, these decisions and the “negative integration” achieved by them have not been matched by significant EU income tax legislation since such legislation cannot be enacted without unanimous consent from the Member States. This course aims at providing an overview of the evolving doctrine of the fundamental freedoms under the EC Treaty in general and in the direct tax area specifically. It deals with the general framework of the impact of the fundamental freedoms on the taxation of cross-border transactions by Member States, focusing on inbound as well as on outbound situations and will also address specific issues of the ECJ’s case-law in relation to direct taxation, such as horizontal discrimination (e.g., most favoured nation treatment, neutrality of the form of establishment), cross-border loss utilization in branch and subsidiary situations, national anti-abuse legislation (GAARs, CFC, thin capitalization), cross-border profit distributions and financing, and exit taxation.