This article pursues the goal to highlight, through some case law examples, the role of the ECJ, which has defined the fundamental dialectic of Community tax law, identifying positive and negative elements of the path of development of tax liberalization consistent with the aims of European integration. It can be affirmed however, that the main object of the decisions of the European Court of Justice regards the application of the principle of non-discrimination and non-restriction of Community freedoms, and in particular cases where the exercise of tax power by individual States may impede the system of competition and thus alter the functioning of the common market. The examination, in this paper, of the case law of Italy and Germany shows that the Italian legal system can transpose the judgments of the Court of Justice making them immediately applicable by its courts while the German legal system manifests legal difficulties in the automatic transposition of the judgments of the European Court of Justice. Furthermore, the EU approach also involves a further weak profile of the current system, namely the difficult settlement of the dispute between states. The friendly procedures (Mutual Agreement Procedure, so-called 'MAP'), exhausted in the direct consultation between the tax administrations of the contracting countries, do not seem in fact sufficient to settle the very copious dispute over double taxation, also due to the absence of a result constraint. More effective, however, is the recent Directive 2017/1852/EU of 10 October, whose territorial scope (EU territory) is, however, less extensive than that of the MAPs
The Nomophylactic Function of the European Court of Justice in Tax Matters within the Italian and German Experience. Possible Dispute Settlement Solutions for the Member States
Giusti, Carloalberto
2019-01-01
Abstract
This article pursues the goal to highlight, through some case law examples, the role of the ECJ, which has defined the fundamental dialectic of Community tax law, identifying positive and negative elements of the path of development of tax liberalization consistent with the aims of European integration. It can be affirmed however, that the main object of the decisions of the European Court of Justice regards the application of the principle of non-discrimination and non-restriction of Community freedoms, and in particular cases where the exercise of tax power by individual States may impede the system of competition and thus alter the functioning of the common market. The examination, in this paper, of the case law of Italy and Germany shows that the Italian legal system can transpose the judgments of the Court of Justice making them immediately applicable by its courts while the German legal system manifests legal difficulties in the automatic transposition of the judgments of the European Court of Justice. Furthermore, the EU approach also involves a further weak profile of the current system, namely the difficult settlement of the dispute between states. The friendly procedures (Mutual Agreement Procedure, so-called 'MAP'), exhausted in the direct consultation between the tax administrations of the contracting countries, do not seem in fact sufficient to settle the very copious dispute over double taxation, also due to the absence of a result constraint. More effective, however, is the recent Directive 2017/1852/EU of 10 October, whose territorial scope (EU territory) is, however, less extensive than that of the MAPsI documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
