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See detailHarmful Tax Competition from the European Union towards Third Countries?
Haslehner, Werner UL; Schwarz, Paloma

in Martín Jiménez, Adolfo (Ed.) The External Tax Strategy of the EU in a Post-BEPS Environment (2019)

The European Union does not have a harmonized – let alone centralized – tax system that offers specific tax incentives. It also does not explicitly regulate tax competition of its constituent parts (the ... [more ▼]

The European Union does not have a harmonized – let alone centralized – tax system that offers specific tax incentives. It also does not explicitly regulate tax competition of its constituent parts (the EU Member States) with third countries, but only regulates “internal tax competition” among them, through the mechanism of the Code of Conduct and, even more strongly, by prohibiting State aid from being granted through tax measures. The question asked by the title of this chapter thus seems to be easily answerable in the negative: since the European Union does not make external tax policies for its Member States and does not itself provide specific tax incentives, it is not an agent of tax competition. Consequently, it would be challenging to argue that the European Union engages in harmful tax competition towards third countries. Taking a broader view, however, the notion that the European Union may engage in harmful tax competition may not be so easily dismissed, as it takes regulatory action that impacts Member States as primary agents of tax competition in a variety of ways, which can either improve or reduce the Member States’ and, by extension the European Union’s competitive position vis-à-vis third countries. Such impact takes three different routes: (i) primary EU law, affecting the design of domestic tax incentives; (ii) secondary EU law, determining certain kinds of tax incentives; and (iii) soft-law instruments, affecting domestic tax design. This contribution aims at analysing these three routes of tax competition of the European Union in order to get a deeper understanding of the ways in which the European Union may be said to engage in harmful tax competition. Before the different models can be analysed in this light, however, it is first necessary to enquire into the nature of “harmful tax competition”, a term that is all too often used without a clear definition of its content. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2018 on the ECJ Decision of 12 June 2018 in Bevola (Case C-650/16), Concerning the Utilization of “Definitive Losses” Attributable to a Foreign Permanent Establishment
Garía Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2019), 59(2/3), 113-119

This CFE Opinion Statement, submitted to the European Institutions in November 2018, discusses the ECJ’s decision in Bevola (Case C-650/16), which reaffirms that the concept of “definitive losses” first ... [more ▼]

This CFE Opinion Statement, submitted to the European Institutions in November 2018, discusses the ECJ’s decision in Bevola (Case C-650/16), which reaffirms that the concept of “definitive losses” first established in Marks & Spencer (Case C-446/03) and refined, inter alia, in Commission v. United Kingdom (Case C-172/13) is still applicable to permanent establishments and that the standard for testing comparability continues to be related to the aim pursued by the national provision at issue. Further, the CFE invites the EU to consider harmonizing measures that will introduce immediate loss utilization with a recapture mechanism. [less ▲]

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See detailTime and Tax – Issues in International, EU, and Constitutional Law
Haslehner, Werner UL; Kofler, Georg; Rust, Alexander

Book published by Kluwer Law International (2019)

Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the ... [more ▼]

Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the provision of accurate legal advice, timing is particularly sensitive. This book is the first to analyse the relationship between time and three key areas of tax: treaties, EU law, and constitutional law issues, such as legal certainty and individual rights. The issues arising from the interplay of these various areas are analysed from a both academic and practical angle, providing important insights independent of the concrete national framework within which tax rules are applied. [less ▲]

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See detailTime and Tax: Constitutional Versus Economic Perspectives
Haslehner, Werner UL

in Kofler, Georg; Rust, Alexander (Eds.) Time and Tax – Issues in International, EU, and Constitutional Law (2019)

Constitutional and economic perspectives frequently differ, including with respect to taxation. Constitutional scholars, on the one hand, typically focus on questions of justice with respect to a ... [more ▼]

Constitutional and economic perspectives frequently differ, including with respect to taxation. Constitutional scholars, on the one hand, typically focus on questions of justice with respect to a particular policy, together with the legal and institutional structures that aim to implement that policy, and thus look at individual rights, equity, the balance ofpowers and the proportionate consideration of diverse interests. Economists, on the other hand, are mainly interested in a particular policy's economic efficiency: they zoom in on its trade-offs, incentives, and consequences for economic welfare as a whole. It is necessary to combine both views for a holistic understanding of legal regulations. From both perspectives, it is, ultimately, a policy's practical effects that drive an assessment of its economic efficiency or its fairness. Thus, any constitutional or legal analysis ought to be imbued with a certain level of economic analysis, as justice depends on the actual outcomes of a policy, including its second-order effects. This contribution attempts to inquire the consequences of such approach in three main dimensions of timing taxation: assessment of taxes, collection of taxes, and the transition between different tax rules and systems. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2018 on the ECJ Decision of 7 September 2017 in Eqiom (Case C-6/16), concerning the Compatibility of the French Anti-Abuse Rule Regarding Outbound Dividends with the EU Parent-Subsidiary Directive (2011/96) and the Fundamental Freedoms
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2018)

This is an Opinion Statement prepared by the CFE ECJ Task Force on Eqiom (Case C-6/16), in respect of which the Sixth Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on ... [more ▼]

This is an Opinion Statement prepared by the CFE ECJ Task Force on Eqiom (Case C-6/16), in respect of which the Sixth Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 7 September 2017. The CFE welcomes the Eqiom decision. In an international context where the fight against tax avoidance and aggressive tax planning is intensifying, it is important to preserve the fundamental principles of a balanced tax system: Free choice of the least taxed route, legal certainty, respect for principles concerning burden of proof, etc. In this respect, the Court appears to be the guardian of these rights. In line with its previous decisions and upholding the fundamental ideas of the Internal Market, the ECJ in Eqiom and Deister and Juhler clearly confirms that Member States may neither employ general presumptions of abuse nor define any tax planning or structuring as abusive in light of secondary EU law or the fundamental freedoms. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2018 on the Compatibility of Limitation-on-Benefits Clauses with the EU Fundamental Freedoms
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2018)

This Opinion Statement was prepared by the CFE ECJ Task Force and concerns the compatibility of limitation-on-benefits (LoB) clauses with the EU fundamental freedoms, based on decisions of the European ... [more ▼]

This Opinion Statement was prepared by the CFE ECJ Task Force and concerns the 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. [less ▲]

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See detailGeneral Anti-Avoidance Rules in EU Law (EU Report IFA Congress 2018)
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in IFA (Ed.) Cahiers de droit fiscal international, Volume 103A (2018)

While the EU Treaties do not contain a general anti-abuse rule, the Court of Justice of the European Union (ECJ) uses the concept of abuse of law when interpreting the EU Treaties in multiple substantive ... [more ▼]

While the EU Treaties do not contain a general anti-abuse rule, the Court of Justice of the European Union (ECJ) uses the concept of abuse of law when interpreting the EU Treaties in multiple substantive areas of law, including direct taxation. Current EU mechanisms for protection against abusive practices have that case law as a common root. This Report therefore starts by evaluating the emergence of the concept of abuse in the case law of the ECJ with regard to the fundamental freedoms. In this respect, the Court has accepted that discriminatory anti-avoidance rules can be justified by overriding reasons in the general interest but only where such rule specifically relates to wholly artificial arrangements aimed at circumventing the application of the legislation of the Member State concerned. Moreover, general and special anti-abuse provisions are enshrined in secondary EU law instruments. This concerns the general anti-avoidance rule for the area of corporate taxation, which was introduced by the Anti-Tax Avoidance Directive (ATAD) and will be effective from 1 January 2019, and the more specific rules in the Parent-Subsidiary Directive (PSD), the Merger Directive (MD) and the Interest-Royalty Directive (IRD). This Report explains the scope of these provisions, their interpretation and application, and their relationship with primary EU law, tax treaties and national law. Finally, this Report provides a brief outlook on the impact of EU law on domestic tax systems in this field, stressing that general anti-abuse measures might create tensions with fundamental taxpayers’ rights, such as the right to legal certainty and the freedom to arrange one’s economic affairs. [less ▲]

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See detailInvestment Fund Taxation - Domestic Law, EU Law, and Double Taxation Treaties
Haslehner, Werner UL

Book published by Kluwer Law International (2018)

The book covers the central questions arising in national law and tax policy, explores the regulatory and tax framework of the European Union (EU), and discusses the multifaceted interactions of both ... [more ▼]

The book covers the central questions arising in national law and tax policy, explores the regulatory and tax framework of the European Union (EU), and discusses the multifaceted interactions of both national and EU law with bilateral tax treaties. Through fourteen chapters following the editor's introduction, leading academic experts and practising specialists provide insights into all the most relevant aspects of funds taxation. [less ▲]

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See detailTaxing where value is created in a post-BEPS (digitalized) world?
Haslehner, Werner UL

in Kluwer International Tax Blog (http://kluwertaxblog.com/) (2018)

As international tax reform aims to ensure "taxation where value is created", it is crucial to ask questions about the relationship between taxation and value creation, in particular with respect to ... [more ▼]

As international tax reform aims to ensure "taxation where value is created", it is crucial to ask questions about the relationship between taxation and value creation, in particular with respect to increased digitalisation. As the notions of value creation and substance are inextricably linked to a functional analysis of business activity, further the challenges arising from artificial intelligence taking independent decisional control over key business functions will also need to be considered. This brief note outlines some of the existing developments in the relationship between these factors. The blog is available at http://kluwertaxblog.com/2018/05/30/taxing-value-created-post-beps-digitalized-world/ [less ▲]

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See detailEU-US Relations in the Field of Direct Taxes from the EU Perspective: A BEPS-induced Transformation?
Haslehner, Werner UL

in Pistone, Pasquale; Weber, Dennis (Eds.) The Implementation of Anti-BEPS Rules in the EU: A Comprehensive Study (2018)

This chapter attempts to cover a range of interrelated questions that are all inextricably linked to the EU-US relationship in direct tax matters. Its main theme is the potential influence of legal and ... [more ▼]

This chapter attempts to cover a range of interrelated questions that are all inextricably linked to the EU-US relationship in direct tax matters. Its main theme is the potential influence of legal and political developments within the EU on this external relationship. Shining a critical light on the legality of some of the recent changes made to EU legislation and enforcement in the context of the global fight against BEPS, it argues that the US government's newly assumed active role with respect to EU tax policy may inadvertently strengthen tendencies to bring direct tax matters more comprehensively into the range of power of the Commission – including at the international level – as it creates an interest on the US side to negotiate directly with the 'rela decision makers' rather than intermediaries without sovereign power over the entirety of the issues. It concludes, however, that in the current state of integration of direct taxation within the EU, such a bilateral relationship and the conclusion of an EU-US DTA is not yet legally possible. This would likely change, however, if the EU were to adopt a comprehensive corporate taxation regime along the lines of the Commission's CCTB proposal. At the same time, the Commission can no longer be kept entirely on the sidelines in Member States' DTC negotiations. [less ▲]

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See detailOpinion Statement 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
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2018)

The CFE welcomes the pro-rata approach to personal and family deductions developed in the X decision. In doing so, the Court contributes to the establishment of the internal market. Indeed, the pro-rata ... [more ▼]

The CFE welcomes the pro-rata approach to personal and family deductions developed in the X decision. In doing so, the Court contributes to the establishment of the internal market. Indeed, the pro-rata approach supports an open market economy with free competition, an efficient allocation of production factors, tax neutrality, a level playing field, international tax neutrality, the ability-to-pay principle, the direct benefit principle and origin-based taxation. The CFE, however, also notes that implementation of the principles established by X will pose a number of technical and policy issues for domestic legislators that have not yet been addressed by the Court. These include the calculation of the relevant proportions of income and possible mechanisms to avoid “cherry picking” by non-residents. [less ▲]

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See detailMacht die Bekanntmachung zum Beihilfebegriff Steuerbeihilfen transparenter?
Haslehner, Werner UL; Schwarz, Paloma

in Jaeger, Thomas; Haslinger, Birgit (Eds.) Jahrbuch Beihilferecht 18 (2018)

The Commission's 2016 Notice on the Notion of Aid extensively covers the issue of tax measures constituting aid. This is a welcome development as it gives vital guidance to tax practice, which had been ... [more ▼]

The Commission's 2016 Notice on the Notion of Aid extensively covers the issue of tax measures constituting aid. This is a welcome development as it gives vital guidance to tax practice, which had been subject to increasing uncertainty in recent years in the area of tax aid. Due to the one-sided binding value of the notice, protected legitimate expectations are created for taxpayers to the extent that the Notice provides clear delimiting statements. Nevertheless, many of the interpretations of the Commission in the Notice are not based on case law, but rather the Commission's own views, which requires a critical examination of the positions taken by the Commission and their backing by the Court of Justice. [less ▲]

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See detailLuxembourg: Taxation of Flight Personnel in Triangular Situations and Article 15(3) of the OECD Model
Haslehner, Werner UL

in Lang, Michael; Rust, Alexander; Owens, Jeffrey (Eds.) et al Tax Treaty Case Law Around the Globe 2017 (2018)

The case discussed in this note concerns an issue arising before the Cour administrative on the taxation of flight personnel of a Belgian airline. The individuals resided in Belgium, France, Germany, and ... [more ▼]

The case discussed in this note concerns an issue arising before the Cour administrative on the taxation of flight personnel of a Belgian airline. The individuals resided in Belgium, France, Germany, and the Netherlands, respectively, and where employed by a company in Luxembourg. Although the substantive issue discussed in the judgment is quite straightforward, interesting procedural questions arise from the rather unusual circumstance that the case was not brought to the courts by the former managing director of the company, who had been charged for the unremitted withholding tax under a joint liability rule. One of the crucial questions the court had to address in its judgment was whether the managing director could (still) rely on the limitation of tax jurisdiction following from the tax treaty. [less ▲]

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See detailOpinion Statement 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
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2018)

The CFE welcomes this decision in that it marks a new page in the protection of taxpayer rights. In line with the principle “wherever there is a right, there is a remedy”, it shows that EU law may ... [more ▼]

The CFE welcomes this decision in that it marks a new page in the protection of taxpayer rights. In line with the principle “wherever there is a right, there is a remedy”, it shows that EU law may reconcile the interest in securing an effective protection of tax collection with that in respecting fundamental rights. The CFE wonders whether the threshold of “manifest irrelevance” can effectively secure the protection of the relevant persons’ rights. It also wonders whether this offers an effective protection against fishing expeditions or requests for information that is unlikely to be relevant to the tax affairs of a given taxpayer. [less ▲]

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See detailThe Controlled Foreign Company Regime
Haslehner, Werner UL

in Weber, Dennis; Van de Streek, Jan (Eds.) The EU Common Consolidated Corporate Tax Base - Critical Analysis (2018)

The Controlled Foreign Company (CFC) regime proposed by the Commission as part of the newly launched Common Corporate Tax Base (CCTB) project reflects the perceived need to strengthen the Union’s anti-tax ... [more ▼]

The Controlled Foreign Company (CFC) regime proposed by the Commission as part of the newly launched Common Corporate Tax Base (CCTB) project reflects the perceived need to strengthen the Union’s anti-tax avoidance measures, and specifically to discourage profit shifting to low-tax jurisdictions. The proposed rule largely reflects previous work done by the OECD as part of the BEPS project and the EU implementation measures in the Anti-Tax Avoidance Directive (ATAD), but it deviates from both in a number of its details. This contribution aims to provide a first technical analysis of the provision to reveal its scope, its mechanism, and apparent shortcomings. It furthermore tries to imbed it in its context of existing primary and secondary EU law. [less ▲]

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See detailTax Treaty Disputes in Germany
Haslehner, Werner UL

in Eduardo, Baistrocchi (Ed.) A Global Analysis of Tax Treaty Disputes (2017)

Germany has been at the centre of international tax law development for more than 100 years: it is the birthplace of the first-ever double taxation convention, the home of the first and most cited ... [more ▼]

Germany has been at the centre of international tax law development for more than 100 years: it is the birthplace of the first-ever double taxation convention, the home of the first and most cited international commentary on double taxation conventions, and the source of an unsurpassed number of court decisions dealing with problems of international tax law over the course of more than a century. It is not clear, however, that the development of the German perspective on international tax law as perceived through the lens of tax treaty disputes is driven by a coherent policy or overarching objective. Rather, it would appear to emerge as the outcome of the different roles taken on by the German institutions with relevance in international tax policy, such as the legislator, tax administration, and national courts. While this contribution aims at elucidating the development of Germany’s perspective on international taxation, it is thus cautious not to attribute a unitary purpose underlying this development, but to showcase the different elements that have been important for it. [less ▲]

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See detailLuxembourg National Report: Tax Avoidance Revisited in the EU BEPS Context
Haslehner, Werner UL

in Dourado, Ana Paula (Ed.) Tax Avoidance Revisited in the EU BEPS Context (2017)

This contribution analyses the status quo of anti-tax avoidance laws and doctrines in Luxembourg in reflection of the developments from the OECD BEPS project and the EU's reaction thereto. Starting from ... [more ▼]

This contribution analyses the status quo of anti-tax avoidance laws and doctrines in Luxembourg in reflection of the developments from the OECD BEPS project and the EU's reaction thereto. Starting from the traditional approach taken by the Luxembourg courts to the term "Steuerumgehung" in §6 StAnpG, it also refers to special and target anti-avoidance rules (SAARs and TAARs) notably in the area of transfer pricing. Please note that the contribution was finalised in summer 2016 and the initial temporal scope of the study had been set until the end of 2015. Later developments, in particular changes to transfer pricing in Luxembourg (Art. 56bis LIR) could therefore not be taken into account. [less ▲]

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See detailTaxation at the Crossroads of Fundamental Rights and Fundamental Freedoms in the EU
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) EU Tax Law and Policy in the 21st Century (2017)

After nearly thirty years of dormancy with respect to direct taxation matters, the EU fundamental freedoms have been gradually accepted as a major determinant of the Member States’ freedom to impose to ... [more ▼]

After nearly thirty years of dormancy with respect to direct taxation matters, the EU fundamental freedoms have been gradually accepted as a major determinant of the Member States’ freedom to impose to taxes. Today, the power of the freedoms to limit the Member States’ competence in this area of law is accepted without question. At the same time, EU fundamental rights have, to date, played almost no role at all with respect to tax matters, let alone direct tax matters, although they were already recognized as constituent elements of primary EU law by the Court of Justice of the European Union (the Court or the CJEU) in the 1960s. This dichotomy is remarkable, not least because it is difficult to neatly disentangle fundamental freedoms from fundamental rights, as the former may well be seen as a subset of the latter. This contribution explores the doctrinal underpinnings of their existing similarities and differences as well as the interaction of both, in order to offer an explanation for the seemingly contradictory perception of both fundamental bases of primary EU law. In so doing, it will address the following questions: What is the relationship between fundamental rights and fundamental freedoms? To what extent do they limit or reinforce each other? Why has the CJEU not brought EU fundamental rights to bear in its jurisprudence on direct taxation thus far? Can or should the CJEU be more active in this respect? Thus, this contribution, first, briefly recounts the development of EU fundamental rights and fundamental freedoms and the doctrinal underpinnings of this development as a basis to analyse the scope of both components of primary law and their relationship to one another. Second, it analyses the similarities and relevant differences between fundamental rights and fundamental freedoms and suggests an answer to the question of the extent to which the fundamental freedoms can or should be considered to be fundamental rights. Finally, it assesses the application of fundamental rights in direct tax cases by looking at the clues the CJEU has left in the very little case law available with implications for this question. [less ▲]

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See detailEU Tax Law and Policy in the 21st Century
Haslehner, Werner UL; Kofler, Georg; Rust, Alexander

Book published by Kluwer Law International (2017)

Major changes in EU tax law demand an analysis of not just the current state of the field, but also forthcoming EU-level policy initiatives and their likely implications for taxpayers, regulators, and ... [more ▼]

Major changes in EU tax law demand an analysis of not just the current state of the field, but also forthcoming EU-level policy initiatives and their likely implications for taxpayers, regulators, and national legislatures alike. This book, the first in-depth commentary and analysis of such developments, offers exactly that. Twenty EU tax and policy experts examine the impact of EU Treaty provisions and recent ECJ case law on EU tax law, and provide well-informed assessments of current and anticipated EU tax policy initiatives and their potential impacts. [less ▲]

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See detailCross-border Exchange of Tax Information and Fundamental Rights
Chaouche, Fatima UL; Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) EU Tax Law and Policy in the 21st Century (2017)

Very few areas of law have been subject to as much scrutiny and political pressure as tax law over the past years. In a very short period of time, we went from almost no exchange to the implementation of ... [more ▼]

Very few areas of law have been subject to as much scrutiny and political pressure as tax law over the past years. In a very short period of time, we went from almost no exchange to the implementation of automatic exchange of information for specific categories of income. Since 2009, an unprecedented interventionism has been best illustrated by the amendments and enlargements of various mutual assistance instruments, both at OECD and EU levels. This widening of scope undoubtedly involves implications for taxpayers who are directly or indirectly concerned by the exchange of information. The unremitting efforts to achieve efficient exchanges among national tax authorities has, so far, resided in the promptness with which the information gathered is transferred and thereby encouraging requested States to limit taxpayers’ notification and participation rights. Addressing fundamental rights implications in cross-border exchanges of information entails, first, an overview of the recent developments in exchange of information procedures and an overview of the scope of fundamental rights at both EU and national levels . Along the same lines, a review of the CJEU decision in Sabou appears relevant in this context as it features in concreto implications of mutual assistance mechanisms on taxpayers’ procedural rights. Considering that the request for preliminary ruling addressed to the CJEU in Sabou mainly raised concerns with respect to the application of the right of the defence, it is appropriate to identify further taxpayers’ rights that may come into play in mutual assistance proceedings. This ‘inventory’ exercise is a prerequisite for a just assessment of the current exchange of information legal framework and allows the formulation of open questions for identified unresolved issues. [less ▲]

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