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Prof. Dr. Rainer Prokisch, Maastricht University

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The role of tax treaties in judgments of the European Court of Justice. Prof. Dr. Rainer Prokisch, Maastricht University. Outline. Introduction General considerations Tax Treaties and EC Law Fundamental Freedoms as equal treatment clauses Tax Treaties as part of the facts

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slide1

The role of tax treaties in judgments of the European Court of Justice

Prof. Dr. Rainer Prokisch, Maastricht University

outline
Outline
  • Introduction
  • General considerations
    • Tax Treaties and EC Law
    • Fundamental Freedoms as equal treatment clauses
  • Tax Treaties as part of the facts
  • The bilateral nature of Tax Treaties and its consequence for the interpretation of the basic freedoms
    • The frontier worker cases
    • The dividend withholding cases
  • Conclusions
introduction
Introduction
  • EU has no competences in respect of direct taxation
  • EU has no power to conclude tax treaties with third states
  • DTCs are not part of the EU legal system
  • ECJ does not interpret tax treaties
tax treaties and ec law the case st gobain
Tax Treaties and EC Law – The Case ST. GOBAIN

France

F-CORP

PE

Germany

Participation

Dividends

US

fundamental freedoms as equal treatment clauses
Fundamental Freedoms as equal treatment clauses
  • Restriction or Limitation of freedoms is not sufficient in direct tax cases
  • Freedoms are applied as equal treatment clauses, i.e. there must be a unequal treatment of comparable situations or an equal treatment of non-comparable cases
  • Example: Double taxation restricts the functioning of the common market, but is not a restriction of the fundamental freedoms as long as there is no unequal treatment either in the state of source or in the state of residence
tax treaties as part of the facts
Tax Treaties as part of the facts
  • Tax treaties are considered to be domestic law
  • ECJ has to accept application and interpretation of domestic courts
  • However, ECJ is not consequent
the case renneberg
The Case „Renneberg“

Cross-border employment

Belgium

NL

R. works in NL (public service)

R. has income from

living is his own house

(negative) (Article 6

OECD Model)

R. has income from work for

a public organization (Article

19 OECD Model)

the frontier worker cases schumacker and others
The frontier worker cases – Schumacker and others

Belgium is state of

residence

S. works in Germany and earns all his income there

DTC: Belgium exempts foreign income

the dividend withholding cases the state of source denkavit
The dividend withholding cases – the state of source – Denkavit

France

NL

Dividends

Corp

Corp

WHT

Participation exemption

the dividend withholding cases the state of source denkavit1
The dividend withholding cases – the state of source – Denkavit

France

NL

Dividends

Corp

Corp

WHT

Participation exemption

the dividend withholding cases the state of residence kerckhart morres damseaux
The dividend withholding cases – the state of residence – Kerckhart/Morres, Damseaux

France

Belgium

Dividends

Corp

WHT

No Credit, uniform tax of

25%

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