Volume 28 (2019)

Volume 28 (2019) / Issue 4

Diane de Charette, 'The Anti-Tax Avoidance Directive General Anti-Abuse Rule: A Legal Basis for a Duty on Member States to Fight Tax Abuse in EU Corporate Direct Tax Law' (2019) 28 EC Tax Review, Issue 4, pp. 176–182

Abstract

This article seeks to highlight how EU Law had left pending several interrogations about the existence of a duty to fight tax avoidance under the EU abuse of law principle, in particular in direct taxes. The situation should be remedied thanks to the introduction of Article 6 General Anti-Abuse Rule of the Anti-Tax Avoidance Directive that now establishes a clear duty for Member States to fight tax abuse, thus diminishing in this context the importance of the debate around the existence and substance of the EU general principle of abuse of law. In addition, the Anti-Tax Avoidance Directive General Anti-Abuse Rule (ATAD GAAR), that also applies domestically, provides a new legal basis for the EU to monitor the Member States’ attitude towards tax payers that shall aim at a right balance. National measures motivated by protectionism or a general aggressive stance against tax payers must not affect fundamental freedoms, just as much as complacent behaviours towards tax abuse jeopardising a sound tax competition in the internal market, must not be allowed. With the ATAD GAAR, the moral and political debates on tax abuse join an ordo-liberal objective of tax convergence aiming towards an EU tax level-playing field

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ISSN: 0928-2750
ID: ECTA2019021