0000000000285761
AUTHOR
Jürgen Lüdicke
OS ECJ-TF 1/2018 on the Compatibility of Limitation-on-Benefits Clauses with the EU Fundamental Freedoms
This article deals with compatibility of limitation-on-benefits (LoB) clauses with the EU fundamental freedoms, based on decisions of the European Court of Justice (ECJ). The context of this statement is the Commission's infringement procedure against the Netherlands with regard to the LoB clause in the Japan-Netherlands Income Tax Treaty (2010) and the inclusion of a simplified optional LoB clause in the BEPS Multilateral Instrument.
OS ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 in N Luxembourg I et al. (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) and T Danmark et al. (Joined Cases C-116/16 and C-117/17), Concerning the 'Beneficial Ownership' Requirement and the Anti-Abuse Principle in the Company Tax Directives
This article deals with the decision taken by the Court of Justice of the European Union in of 26 February 2019 in N Luxembourg I et al. (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) and T Danmark et al. (Joined Cases C-116/16 and C-117/17). The authors acknowledge that the "Danish beneficial ownership cases" address a number of important and timely issues, especially with regard to the concept of abuse under EU law. These include: (i) the expansion of the general anti-abuse principle enshrined in EU law to areas of tax law that are subject to minimal harmonization; (ii) the use of OECD materials to define the beneficial ownership concept; (iii) the conflation of the beneficial o…
Opinion Statement ECJ-TF 4/2019 on the CJEU Decision of February 26, 2019, in Case C-135/17, X-GmbH, Concerning the Application of the German CFC Legislation in Relation to Third Countries
This article deals with case, X-GmbH (Case C-135/17) concerning the compatibility of German CFC legislation with regard to third countries. In Germany, CFC legislation only applies in cross-border situations and not in purely domestic situations. In general, the application of CFC legislation requires that the shareholders have control over the foreign subsidiary, that the foreign subsidiary be taxed at a lower rate and that it earn passive income. Concerning a special type of passive income, there is even no control requirement. In relation to other EU and EEA countries, Germany does not apply its CFC legislation if the taxpayer proves that the company carries on a genuine economic activit…
OS ECJ-TF 1/2019 on the ECJ Decision of 31 May 2018 in Hornbach-Baumarkt (Case C-382/16) Concerning the Application of Transfer Pricing Rules to Transactions between Resident and Non-Resident Associated Enterprises
This article is focused on the Court's decision in Hornbach-Baumarkt (Case C-382/16) (Hornbach) which is an important clarification of the conditional compatibility of arm's length-based domestic transfer pricing legislation with the freedom of establishment. Hornbach follows and confirms the previous doctrine formulated in SGI (Case C-311/08). The decision did not follow Advocate General's approach, which would have denied comparability of domestic and cross-border situations in transfer pricing cases and, hence, prevent scrutiny of domestic transfer pricing legislation under the fundamental freedoms. The authors welcome the requirement that Member States have to grant taxpayers the opport…
OS ECJ-TF 4/2017 on the Decision of the Court of Justice of the European Union of 9 February 2017 in X (Case C-283/15) ('Pro-Rata Personal Deductions'), Concerning Personal and Family Tax Benefits in Multi-State Situations
This article deals with the decision taken by the Court of Justice of the European Union in X (Case C-283/15), on 9 February 2017. In general terms, the Court followed the Opinion of Advocate General Wathelet of 7 September 2016. The case concerned tax legislation permitting the deduction of "negative income" relating to a dwelling. The issue was whether the fundamental freedoms must be interpreted as precluding a Member State from refusing the benefit of that deduction in respect of a self-employed non-resident in circumstances in which that person receives 60% of his total income within that Member State, and 40% within a non-Member State. Therefore, he does not receive income that enable…
Opinion Statement ECJ-TF 3/2019 on the CJEU Decision of 22 November 2018 in Case C-575/17, Sofina, on Withholding Taxes, Losses and Territoriality
This article deals with the decision taken by the Court of Justice of the European Union in Sofina. In the authors' view, it may have extended the standard of comparability, requiring (foreign) non-dividend income of the recipient to be taken into consideration in comparing the tax treatment of domestic and outbound dividends. This comparator, however, upsets the principle of territoriality, as accepted by the Court in Futura (Case C-250/95) and Centro Equestre (Case C-345/04), by requiring the source state to take into account losses that the non-resident taxpayer has in the residence state. Taken at face value, Sofina's impact may extend well beyond withholding taxes, specifically, and di…
OS ECJ-TF 1/2020 on the General Court Decisions of 24 September 2019 in The Netherlands v. Commission (Starbucks) (Joined Cases C-760/15 and T-636/16) and Luxembourg v. Commission (Fiat Finance and Trade) (Joined Cases T-755/15 and T-759/15), on State Aid Granted by Transfer Pricing Rulings
This article provides a comprehensive exame of the decisions of the EU General Court in the cases The Netherlands v. Commission (Starbucks) (Joined Cases C-760/15 and T-636/16) (hereinafter Starbucks NL) and Luxembourg v. Commission (Fiat Finance and Trade) (Joined Cases T-755/15 and T-759/15) (hereinafter Fiat), decided on 24 September 2019. These are the first in a series of expected decisions concerning the legality of the European Commission's decisions considering certain transfer pricing rulings granted by Member States to multinational enterprises (hereinafter MNEs) to constitute State aid. The GC reached different verdicts in the two cases. Whereas in Starbucks NL it annulled the Co…
OS ECJ-TF 2/2017 on the ECJ Decision of 21 December 2016 in World Duty Free Group and Others (Joined Cases C-20/15 P and C-21/15 P), Concerning the Requirements of Selective Aid in the Sense of Article 107 of the TFEU
This article deals with the decision taken by the Grand Chamber of the Court of Justice of the European Union in World Duty Free Group (formerly Autogrill Espana); Banco Santander and Santusa Holding (Joined Cases C-20/15 P and C-21/15 P), on 21 December 2016, following decisions of the General Court of the European Union of 7 November 2014 in Autogrill Espana and of 7 November 2014 in Banco Santander and Santusa and the Opinion of Advocate General Wathelet of 28 July 2016. The case concerned Spanish tax rules that allowed Spanish enterprises tax amortization of financial goodwill arising from the acquisition of shareholdings in foreign companies, but not from the acquisition of shareholdin…
OS ECJ-TF 3/2017 on the Decision of the Court of Justice of the European Union of 16 May 2017 in Berlioz Investment Fund SA (Case C-682/15), Concerning the Right to Judicial Review Under Article 47 of the EU Charter of Fundamental Rights in Cases of Cross-Border Mutual Assistance in Tax Matters
This article examines the decision of the Grand Chamber of the Court of Justice of the European Union (ECJ) in Berlioz Investment Fund SA (Case C-682/15) delivered on 16 May 2017, following the Opinion of Advocate General Wathelet of 10 January 2017. The case concerned the levying of tax penalties in circumstances in which a third party partially refused to provide the Luxembourg tax authorities with information requested, by way of mutual assistance under the Mutual Assistance Directive (2011/16), by the French tax authorities. Having clarified that when exchanging information by way of mutual assistance under an EU directive, EU Member States are implementing EU Law, the Grand Chamber con…