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

in 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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See detailLuxembourg: Applying Article 16 to a “Collège des Commissaires”
Haslehner, Werner UL

in Kemmeren, Eric; Smit, Daniel; Essers, Peter (Eds.) et al Tax Treaty Case Law around the Globe 2016 (2017)

This case note examines a decision by the Cour administrative of Luxembourg concerning the qualification of the fees earned by a commissaire of a partnership limited by shares under the Luxembourg-South ... [more ▼]

This case note examines a decision by the Cour administrative of Luxembourg concerning the qualification of the fees earned by a commissaire of a partnership limited by shares under the Luxembourg-South Africa tax treaty. It concludes that, while the result of the judgment is unobjectionable, it failed to explore the boundaries of the meaning of the term "director" in ways that could give clearer indications for other cases. [less ▲]

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See detailLuxembourg: Profit Adjustments for Interest-Free Loans in Accordance with Article 9
Haslehner, Werner UL

in Kemmeren, Eric; Smit, Daniel; Essers, Peter (Eds.) et al Tax Treaty Case Law around the Globe 2016 (2017)

This case comment analyzes the interaction of Article 9 of the Italy-Luxembourg tax treaty with Luxembourg's domestic rules to adjust taxable profits in case of a interest-free loan.

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See detail"LuxLeaks IV": Das Belgische Excess Profit Exemption Regime als steuerliche Beihilfe
Haslehner, Werner UL; Schwarz, Paloma

in Jaeger, Thomas; Haslinger, Birgit (Eds.) Beihilferecht Jahrbuch 2017 (2017)

The case under consideration in this contribution concerns the Belgian Excess Profit Exemption Regime, ruled to be illegal state aid by the Commission in 2016. Two questions arise from the case: First ... [more ▼]

The case under consideration in this contribution concerns the Belgian Excess Profit Exemption Regime, ruled to be illegal state aid by the Commission in 2016. Two questions arise from the case: First, what relevance the arm's length principle has under EU state aid law; second, whether the existence of "double non-taxation" (or so-called "white income") has any implications for a finding of state aid. The Commission takes the position that the arm's length principle is a necessary element of any Member State's corporate tax system as a consequence of the general equality principle underlying Article 107 TFEU. On the second question, the Commission's analysis is somewhat less unambiguous, but seems to clearly assign some relevance to the existence of double non-taxation. Both positions are reviewed critically in this contribution. [less ▲]

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See detailLohnsteuervollzug im Europäischen Rechtsvergleich
Haslehner, Werner UL

in Drüen, Klaus-Dieter (Ed.) Besteuerung von Arbeitnehmern (2017)

The form and method of taxation of employees follows a distincitve pattern with many similarities across Europe. However, a number of significant differences and exceptions remain. This contribution uses ... [more ▼]

The form and method of taxation of employees follows a distincitve pattern with many similarities across Europe. However, a number of significant differences and exceptions remain. This contribution uses a functional comparative law perspective to highlight and analyse some of those differences and how they relate to the main objectives of the strucure of employee taxation: individualisation, synchronisation, complexity, and security. [less ▲]

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See detailLuxembourg: Exchange of Information and EU Fundamental Rights (C-682/15, Berlioz Investment Fund S.A.)
Haslehner, Werner UL

in Lang, Michael; Pistone, Pasquale; Rust, Alexander (Eds.) et al CJEU – Recent Developments in Direct Taxation 2016 (2017)

The present case concerns the question of whether the right to an effective remedy — as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union — means that a Member State must ... [more ▼]

The present case concerns the question of whether the right to an effective remedy — as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union — means that a Member State must allow a company to challenge an order requesting information for the purposes of the tax assessment of another party in a court that would have unlimited authority to review the legitimacy of that order, including the “foreseeable relevance” of the original request made by another Member State. The case has the potential to provide a crucial piece in the legal puzzle that surrounds exchange of information in tax matters in the triangle of domestic law, tax treaty law and EU law, with particular emphasis on the protection of taxpayer (and related party) rights. However, due to the actual circumstances of the case, it does not appear likely that the CJEU will address all of the questions asked by Luxembourg’s Cour administrative. In particular, the meaning of “foreseeable relevance” under Directive 2011/16 may be seen as having little relevance for the outcome of the case in light of the broad meaning given to it by Luxembourg’s statute so that the CJEU may leave it unresolved even if it agrees with the domestic court on the application of Article 47 of the Charter. [less ▲]

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See detailArtikel 24. Gleichbehandlung
Haslehner, Werner UL

in Aigner, Dietmar; Kofler, Georg; Tumpel, Michael (Eds.) DBA – Doppelbesteuerungsabkommen Kommentar (2016)

This contribution consists of a comprehensive commentary on the non-discrimination rule enshrined in the OECD Model Tax Convention, with a particular view on its implementation in Austrian tax treaties ... [more ▼]

This contribution consists of a comprehensive commentary on the non-discrimination rule enshrined in the OECD Model Tax Convention, with a particular view on its implementation in Austrian tax treaties and its effects in Austrian tax law. [less ▲]

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See detailDouble Taxation Relief, Transfer Pricing Adjustments and State Aid Law
Haslehner, Werner UL

in Richelle, Isabelle; Schön, Wolfgang; Traversa, Edoardo (Eds.) State Aid Law and Business Taxation (2016)

This contribution explores the influence of state aid law on tax measures for the provision of relief from double taxation and the consequences of its application to transfer pricing adjustments. In ... [more ▼]

This contribution explores the influence of state aid law on tax measures for the provision of relief from double taxation and the consequences of its application to transfer pricing adjustments. In particular, it analyses the compatibility of measures that prevent merely virtual double taxation and transfer pricing adjustments that might result in “white income”. It also reviews the merits of the Commission’s claim that Member States have to apply the arm’s length standard to transfer pricing adjustments as a matter of State aid law. [less ▲]

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See detailNationality Non-Discrimination and Article 24 OECD - Perennial Issues, Recent Trends and New Approaches
Haslehner, Werner UL

in Pistone, Pasquale; Weber, Dennis (Eds.) Non-Discrimination in Tax Treaties: SElected Issues from a Global Perspective (2016)

Article 24 OECD Model Tax Convention consists of four separate clauses with different wording, structure and apparent purpose, each concerned with preventing a particular form of discrimination. This ... [more ▼]

Article 24 OECD Model Tax Convention consists of four separate clauses with different wording, structure and apparent purpose, each concerned with preventing a particular form of discrimination. This contribution attempts to shed some light at principles that underlie and inform the interpretation of article 24 in its entirety and to comment on the clarifications made in this respect by the OECD. It then explores the scope of application of the nationality non-discrimination provision, with a particular focus on two questions: Whether companies can rely on the nationality non-discrimination provision and how article 24(1) interacts with other non-discrimination norms, both in tax treaties and in other legal sources. [less ▲]

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See detail'Avoir Fiscal' and Its Legacy in Thirty Years of Direct Tax Jurisprudence of the Court of Justice
Haslehner, Werner UL

in Intertax, International Tax Review (2016), 44(5), 374-391

On occasion of the thirty-year anniversary of the Court of Justice of the European Unions (CJEU’s) landmark judgment Commission v. France, 270/83 (‘Avoir Fiscal’), this article reviews the decision of the ... [more ▼]

On occasion of the thirty-year anniversary of the Court of Justice of the European Unions (CJEU’s) landmark judgment Commission v. France, 270/83 (‘Avoir Fiscal’), this article reviews the decision of the Court and its lasting impact on EU tax law. It finds that most of the principles developed in that case remain relevant in current doctrine. At the same time, several questions that were left open in 1986 are still unresolved today. [less ▲]

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See detailLuxembourg: Tax Credit Denied to Residents with Exclusively Foreign Income (C-300/15, Kohll and Kohll-Schlesser)
Haslehner, Werner UL

in Lang, Michael; Pistone, Pasquale; Rust, Alexander (Eds.) et al CJEU – Recent Developments in Direct Taxation 2015 (2016)

Luxembourg’s tax credit for pensioners is not grandet to pensioners receiving exclusively foreign pension income. This creates a disadvantage liable to impede the exercise of the free movement of workers ... [more ▼]

Luxembourg’s tax credit for pensioners is not grandet to pensioners receiving exclusively foreign pension income. This creates a disadvantage liable to impede the exercise of the free movement of workers to the extent that it makes it less desirable for a citizen of Luxembourg to move to another Member State to take up work if she intends to return to Luxembourg after retirement. This contribution argues that there is no justification for that disadvantage, rendering Luxembourg's law incompatible with EU law. [less ▲]

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See detailThe Effect of a Tax Treaty Tie-breaker for Dual Residents
Haslehner, Werner UL

in Lang, Michael; Owens, Jeffrey; Pistone, Pasquale (Eds.) et al Tax Treaty Case Law around the Globe 2015 (2016)

Case 33872C, which was decided by Luxembourg’s Cour administrative on 18 December 2014, concerned two questions of tax treaty law: first, whether the taxpayer in question was a resident of Luxembourg or ... [more ▼]

Case 33872C, which was decided by Luxembourg’s Cour administrative on 18 December 2014, concerned two questions of tax treaty law: first, whether the taxpayer in question was a resident of Luxembourg or Germany during the tax period concerned in accordance with the tie-breaker rule of the applicable double taxation convention (DTC); and second, what was the effect of that qualification for the application of domestic tax law provisions in Luxembourg that do not affect Germany’s taxing right as guaranteed in the DTC. Does the tie-breaker rule in Article 4(1) of the OECD Model determine how a dual-resident taxpayer is to be treated under domestic law or does it merely serve to allocate the role of residence country and source country, respectively? The court answered this question in the negative, holding that the taxpayer was a resident of Germany under the tax treaty tie-breaker rule, but that the tax treaty did not prevent Luxembourg from treating him (a non-resident under the terms of the tax treaty) as a resident to the extent that doing so did not violate Germany’s primary taxing right, which resulted in (progressive) joint taxation with his spouse in Luxembourg. The court's reasoning is sound based on general principles of the relationship between domestic law and tax treaties, but did not address more intricate arguments that arise from the concrete wording of the treaty. This contribution explores these in addition to analysing the court's decision. [less ▲]

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See detailVerrechnungspreiskorrekturen bei Verbundenen Unternehmen: Art. 9 und 12(6) – Die Deutsche Perspektive
Haslehner, Werner UL

in Ates, Leyla; Englisch, Joachim (Eds.) Auslegung, Anwendungspraxis und zukünftige Entwicklung des deutsch-türkischen Doppelbesteuerungsabkommens (2016)

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See detailLandmark Decisions of the ECJ in Direct Taxation
Haslehner, Werner UL; Kofler, Georg; Rust, Alexander

Book published by Kluwer Law International (2015)

This book is the result of a conference held at the University of Luxembourg on 23 January 2014, which aimed to analyse the Court of Justice’s most important decisions on direct taxation and their ... [more ▼]

This book is the result of a conference held at the University of Luxembourg on 23 January 2014, which aimed to analyse the Court of Justice’s most important decisions on direct taxation and their transformative impact on direct taxation in the EU over the last three decades. Each chapter in this book is based on the authors’ presentations at the conference, in which they focused on a particular landmark decision of the Court of Justice as a starting point for the development of a specific doctrine and followed its development through decisions in later years, critically assessing the strengths and weaknesses of the Luxembourg Court’s reasoning and its path through the complex field of cross-border income taxation. Due to the nature of this project, the individual chapters’ topics, such as the Schumacker doctrine, the Marks & Spencer exception, or the impact of Cadbury Schweppes, will seem familiar to readers who are well versed in EU tax law. Yet, the depth of the analysis of each landmark case, which is explored from its historic roots and original reasoning, allows the reader to gain an unparalleled understanding of the development and minute changes in the relevant subsequent jurisprudence as the authors chart a way through the nuances of the Court’s arguments. Necessarily a snapshot of the current state of the law, it allows this book to remain relevant as the jurisprudence develops further over the years to come. [less ▲]

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See detailThe Taxation of Permanent Establishments in the EU – Avoir Fiscal and Its Legacy
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) Landmark Decisions of the ECJ in Direct Taxation (2015)

This contribution analyses the evolution of the case law of the European Court of Justice concerning the taxation of permanent establishments, from its very beginning with the famous "Avoir Fiscal ... [more ▼]

This contribution analyses the evolution of the case law of the European Court of Justice concerning the taxation of permanent establishments, from its very beginning with the famous "Avoir Fiscal" judgement of 1986. Taking that decision as a starting point, it traces its influence on the Court's direct tax jurisprudence over the subsequent three decades. It shows that, while most principles established by the Court back then are still alive in current doctrine, several elements of its reasoning have still not been resolved in a satisfactory manner, despite the explosion of cases on similar issues over the years. [less ▲]

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See detailImplications of the BEPS-initiative for a small country like Luxembourg
Haslehner, Werner UL

in Georges, Nathalie; Schronen, Danielle; Urbé, Robert (Eds.) Sozialalmanach 2015 (2015)

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See detailArticle 11. Interest
Haslehner, Werner UL

in Reimer, Ekkehard; Rust, Alexander (Eds.) Klaus Vogel on Double Taxation Conventions (2015)

Extensive Commentary on Article 11 of the OECD Model Tax Convention, the UN Model Tax Convention and the implementation of the rule concerning the taxation of cross-border interest payments in ... [more ▼]

Extensive Commentary on Article 11 of the OECD Model Tax Convention, the UN Model Tax Convention and the implementation of the rule concerning the taxation of cross-border interest payments in international tax treaty practice. [less ▲]

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See detailArticle 10. Dividends
Haslehner, Werner UL

in Reimer, Ekkehard; Rust, Alexander (Eds.) Klaus Vogel on Double Taxation Conventions (2015)

Extensive commentary on Article 10 of the OECD Model Tax Convention, the UN model tax convention and the implementation of the rule concerning the taxation of cross-border dividends in international tax ... [more ▼]

Extensive commentary on Article 10 of the OECD Model Tax Convention, the UN model tax convention and the implementation of the rule concerning the taxation of cross-border dividends in international tax treaty practice. [less ▲]

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See detailTax Incentives and Public Finance in Response to Natural Disasters: a Comparative Assessment of Austria and Germany
Haslehner, Werner UL

in Basilavecchia, Massimo; Del Federico, Lorenzo; Mastellone, Pietro (Eds.) Tax Implications of Natural Disasters and Pollution (2015)

Austria and Germany have introduced a number of legal measures to cope with natural disaster events. Considering the similarity of the risks both countries face, coupled with their close socio-economic ... [more ▼]

Austria and Germany have introduced a number of legal measures to cope with natural disaster events. Considering the similarity of the risks both countries face, coupled with their close socio-economic, cultural, and legal ties, it is hardly surprising that both countries have also taken comparable approaches to address these risks. Once the veil of the existing similarities has been pierced, however, a number of differences in detail become visible, which provide a basis for an in-depth discussion on the options available to States in dealing with the financial and economic hardship caused by natural disasters to both individuals and businesses. It is the purpose of this contribution to present and analyse the multitude of measures taken by both countries, to draw a comparison between the approaches and to pinpoint various differences, in the hope that this exercise allows the reader to draw conclusions on the available options for aid policy and their respective merits. To this end, the contribution is divided into three main sections. The first part analyses the legal framework for direct financial transfers to disaster victims and tries to contrast both countries approaches with possible alternatives. The second part addresses the various tax relief mechanisms available in both countries and critically considers the interaction of these measures with the provision of direct financial aid. The third part provides a brief overview over the EU Commission’s assessment of both types of measures against the backdrop of EU State Aid rules. A short summary of results concludes the contribution. [less ▲]

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