Traditional and Alternative Routes to European Tax Integration Preface List of Abbreviations Chapter 0. The General Report Dennis Weber Table of Contents 0.1. Traditional and alternative routes to European tax integration 0.2. Overview of the subjects 0.2.1. Part One Sources of EU law for integration in direct and indirect taxation 0.2.2. Part Two Soft law: solution or disillusion? Limits? 0.2.3. Part Three Infringement procedures: another way to move things further? 0.2.4. Part Four Comitology 0.2.5. Part Five Relationship between primary and secondary EU law 0.2.6. Part Six VAT Directive tested against primary law 0.2.7. Part Seven Direct tax directives tested against primary law Part One Sources of EU law for integration in direct and indirect taxation Chapter 1. Sources of EU law for integration in taxation Annette Schrauwen 1.1. Introduction 1.2. Integration in taxation and the market 1.3. Integration in taxation and policy goals beyond the market 1.4. Integration in taxation and administrative incentives 1.5. Enhanced cooperation as an alternative for traditional harmonization? 1.5.1. Substantive conditions 1.5.2. Procedural conditions 1.5.3. Procedural issues related to established enhanced cooperation 1.6. Conclusion Chapter 2. Sources of EU law for European tax integration: well-known and alternative legal instruments Eric C.C.M. Kemmeren 2.1. Introduction 2.2. The establishment of the internal market requires European tax integration 2.3. Main causes for the lack of European tax integration 2.4. Means for European tax integration 2.5. Hard law and soft law instruments in taxation
2.5.1. Hard law instruments in taxation 2.5.2. Soft law instruments in taxation 2.6. Appropriate legal instruments to remove tax discrimination/restrictions, State aid and distortions 2.6.1. Appropriate legal instruments to remove tax discrimination/restrictions 2.6.2. Appropriate legal instruments to remove tax State aid 2.6.3. Appropriate legal instruments to remove tax distortions 2.7. Outlook: Appropriate (legal) instruments for further European tax integration Part Two Soft law: solution or disillusion? Limits? Chapter 3. The function of EU soft law Daniel Sarmiento 3.1. The origins of soft law 3.2. Conceptualizing soft law 3.2.1. Hard Law / Soft Law 3.2.2. Internal Soft Law / External Soft Law 3.2.3. Unilateral / Bilateral / Multilateral Soft Law 3.2.4. Typology and legal consequences 3.3. The functions of soft law 3.3.1 Interpretative effects 3.3.2. Liability: legitimate expectations and soft law 3.4. Judicial review of soft law 3.5. Stretching the Functions of EU soft law Chapter 4. The Code of Conduct for Business Taxation: An evaluation of an EU soft law instrument Hans Gribnau 4.1. Introduction 4.2. The Code of Conduct for Business Taxation 4.3. Soft Law in the EU 4.3.1. Governance and Soft Law in the EU 4.3.2. Core elements of EU soft law 4.3.3. The complex relationship between soft law and hard law 4.4. Varieties of EU Soft Law 4.4.1. Preparatory and informative instruments 4.4.2. Interpretative and decisional instruments 4.4.3. Steering instruments 4.5. Soft Law, Cooperation and Public Consultation 4.5.1. Cooperation and Reciprocal Commitment 4.5.2. Public consultation, participation and EU soft law 4.6. Conclusion
Chapter 5. Soft tax law: steering legal pluralism towards international tax coordination Pasquale Pistone 5.1. Introduction 5.2. Legal pluralism and international taxation in the European Union 5.3. Soft international tax law 5.3.1. Soft international tax law and the role of the OECD 5.3.2. Consensus and soft international tax law: the issue of the democratic deficit 5.3.3. The formation of soft international tax law 5.3.4. Soft international tax law and customary international law 5.4. The use of soft law in European international taxation Part Three Infringement procedures: another way to move things further? Chapter 6. Contribution of infringements procedures to European tax integration Adam Zalasiński 6.1. Introduction 6.2. Institutional system of the European Union and European tax integration 6.3. Infringements procedure an outline 6.4. Processes of legal unification in the EU and infringements procedure 6.4.1. Legislative process 6.4.2. Law-making impact of the CJ s decisions 6.4.3. Infringements procedure and the earlier body of the CJ's case law 6.4.4. The effects of infringements on the law-making process in the Member States 5. Conclusion Part Four Comitology Chapter 7. Comitology: an alternative route towards European direct tax integration? Peter Adriaansen 7.1. Introduction 7.2. Comitology; legal framework and institutional history 7.2.1. Delegation of powers 7.2.2. Legal framework 7.2.3. Comitology as an instrument for problem-solving 7.3. Comitology in the field of taxation 7.3.1. Excise duties
7.3.2. Mutual Assistance Directive 7.3.3. Common Consolidated Corporate Tax Base 7.3.4. Administrative cooperation 7.3.5. Savings Directive 7.4. Comitology: an alternative route towards European direct tax integration? Part Five Relationship between primary and secondary EU law Chapter 8. Review of legality of secondary legislation based on infringements of the rights of free movement Karsten Engsig Sørensen 8.1. Introduction 8.2. Starting point: Secondary legislation has to comply with the rights of free movement 8.3. Adjusting the test used in reviewing legality 8.3.1. Testing for customs duties and charges having equivalent effect 8.3.2. The concept of restrictions 8.3.3. Justification of restrictions 8.3.4. Testing for proportionality 8.4. Different types of legislation 8.4.1. Substantive content and aim of legislation 8.4.2. Exhaustive harmonization 5. Conclusions Chapter 9. The relationship between primary and secondary EU law in tax law: the legitimacy of different interpretation criteria applied to EU and national legal sources Ana Paula Dourado 9.1. Legal Sources and levels of analysis involved 9.2. The relevance of the literal element of interpretation of EU secondary legislation, taking as example the Gaz de France case 9.3. The relevant elements on interpretation of secondary EU law in the light of primary EU law: a case of originalism in interpretation? 9.4. Reconciliatory interpretation based on originalism: assessment of its value 9.5. The Merger Directive, the Interest-Royalty Directive and allocation of taxing rights versus exercise of taxing rights 9.6. Other parameters of interpretation of EU secondary law in tax matters 9.6.1. Derogations and transitional regimes 9.6.2. Optional rules vs. clear, precise and unconditional rules 9.7. Partial vs. full harmonization and concluding remarks
Chapter 10. The influence of primary law on the interpretation of secondary law in the field of EU citizenship and direct taxation: whatever works Rita Szudoczky 10.1. Reconciliatory interpretation of secondary law with primary law 10.2. Cases on EU citizenship 10.2.1. Introduction 10.2.2. Article 21 of the TFEU and the directives concerning residence rights 10.2.3. Students 10.2.3.1. Cases concerning the Students Directive 10.2.3.2. Cases concerning Directive 2004/38 10.2.4. Job-seekers 10.2.4.1. Cases decided under the primary law freedoms 10.2.4.2. Cases concerning Directive 2004/38 10.2.5. Assessment of the cases concerning EU citizenship 10.3. Cases on direct taxation 10.3.1. Introduction 10.3.2. Cases concerning the Parent-Subsidiary Directive 10.4. Conclusion Part Six VAT directive tested against primary law Chapter 11. VAT and general principles of EU law Joachim Englisch 11.1. Introduction 11.2. The principle of proportionality 11.3. Equality Principle 11.3.1. Fiscal Neutrality 11.3.2. Consumption Tax Principle 11.3.3. Legal Presumptions, Generalizing Classifications and Lump-sum Rules 11.3.4. Compensation of Advantages and Disadvantages 11.3.5. Inherent Limits to Equality at the Borders of Harmonization 11.4. Freedom rights 11.4.1. Fundamental rights of the taxable person 11.4.2. Fundamental rights of the intended final taxpayer: the final consumer 11.5. Legal Certainty, Legitimate Expectations and the Prohibition of Retroactivity 11.5.1. General Requirements 11.5.2. Non-retroactivity and legitimate expectations 11.6. Formal Legality of Taxation 11.7. Conclusion
Chapter 12. VAT and the EU internal market: The paradoxes of harmonization Rita de la Feria 12.1. Introduction 12.2. VAT: A Tax at the Centre of Internal Market Policy 12.3. Hierarchy of EU Norms and the Role of the CJ Post-Harmonization 12.3.1. Hierarchy of EU norms 12.3.2. Hierarchy of EU norms applied to VAT 12.3.3. Role of the CJ post-harmonization 12.4. (In)compatibility of VAT Law with the EU Internal Market 12.4.1. The concept of EU internal market 14.4.2. Why the current VAT law is incompatible with the internal market 14.4.2.1. Historical arguments 14.4.2.2. Practical arguments 14.4.2.3. Jurisprudential arguments 14.4.3. CJ approach: VAT vs. direct taxation 14.5. Conclusion: The Constitutional Function of the CJ Part Seven Direct tax directives tested against primary law Chapter 13. Fundamental freedoms and directives in the area of direct taxation Georg Kofler, Mario Tenore 13.1. Introduction 13.2. Fundamental Freedoms, Direct Tax Directives and National Implementation 13.2.1 Overview 13.2.2 Situations outside the Subjective or Objective Scope of a Directive 13.2.3 Substantive Prerequisites for the Application of a Directive 13.2.4 Member States Exercise of Options Granted in a Directive 13.3 Different Treatment within the Directives 13.4 Third-Country Issues 13.5 Conclusions