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See detailOpinion Statement ECJ-TF 1/2020 on the General Court Decisions of 24 September 2019 in "Starbucks" and "Fiat" on State Aid Granted by Transfer Pricing Rulings
Haslehner, Werner UL; Garcia Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(5), 222-230

This CFE Opinion Statement, submitted to the EU Institutions on 28 January 2020, discusses the General Court decisions of 24 September 2019 in The Netherlands v. Commission (Starbucks) (Joined Cases C-760 ... [more ▼]

This CFE Opinion Statement, submitted to the EU Institutions on 28 January 2020, discusses 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. [less ▲]

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See detailA Multilateral Interpretation of the Multilateral Instrument (and Covered Tax Agreements)?
Haslehner, Werner UL

in Bulletin for International Taxation (2020), 74(4/5),

The analysis of the multilateral nature of the interpretation processes created by the MLI shows that very little “true multilateralism” arises from its adoption. At its core, the international tax system ... [more ▼]

The analysis of the multilateral nature of the interpretation processes created by the MLI shows that very little “true multilateralism” arises from its adoption. At its core, the international tax system remains fragmented and built on bilateral agreements, with only a thin overlay of multilateral agreement on selected issues. The MLI does not set up a multilateral dispute resolution mechanism. The Conference of the Parties as the only true multilateral body created by the MLI plays a very small – if any – role in the interpretation and application of tax treaty rules. Neither has the MLI produced a system where national courts would have a stronger basis to enforce the harmonious interpretation of treaty terms in both contracting states (let alone among all Parties to the MLI) beyond the general appeal of such approach that already exists prior to – and outside the scope of – the MLI. If a coherent interpretation of CTAs with a view to achieve something like the elusive “single tax principle” was indeed a goal behind the project as a whole, the rules on interpretation applicable following the MLI’s adoption do not amount to a codification of that ideal, although the MLI can, in specific circumstances, have an interpretative effect on tax treaties even where it does not result in a modification of the norms in that treaty. Decision harmony among courts in different countries, therefore, remains an ideal that cannot be based in substance on the existence of the MLI. [less ▲]

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See detailOpinion Statement ECJ TF 4/2019 on the ECJ Decision of 26 February 2019 in X-GmbH (Case C-135/17), Concerning the Application of the German CFC Legislation in Relation to Third Countries
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(4), 152-157

This CFE Opinion Statement, submitted to the EU institutions on 12 December 2019, comments on the decision in X-GmbH (Case C-135/17), in respect of which the Court of Justice of the European Union (Grand ... [more ▼]

This CFE Opinion Statement, submitted to the EU institutions on 12 December 2019, comments on the decision in X-GmbH (Case C-135/17), in respect of which the Court of Justice of the European Union (Grand Chamber) (ECJ) delivered its decision on 26 February 2019. In general terms, the ECJ largely followed the Opinion given by Advocate General Mengozzi on 5 December 2018. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2019 on the ECJ Decision of 22 November 2018 in Sofina (Case C-575/17) on Withholding Taxes, Losses, and Territoriality
Haslehner, Werner UL; Garcia Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(2/3), 91-97

This CFE Opinion Statement, submitted to the EU Institutions on 10 October 2019, comments on the Decision in Sofina (Case C-575/17), in respect of which the Fifth Chamber of the ECJ delivered its decision ... [more ▼]

This CFE Opinion Statement, submitted to the EU Institutions on 10 October 2019, comments on the Decision in Sofina (Case C-575/17), in respect of which the Fifth Chamber of the ECJ delivered its decision on 22 November 2018. The Court held that the imposition of French dividend withholding tax violated the freedom of capital movement in light of the non- resident’s overall loss situation. [less ▲]

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See detailResearch Handbook on European Union Taxation Law
Panayi, Christiana HJI; Haslehner, Werner UL; Traversa, Edoardo

Book published by Edward Elgar (2020)

Offering a comprehensive exploration of EU taxation law, this engaging Research Handbook investigates the relevant legal principles in the context of both direct and indirect taxation. The important ... [more ▼]

Offering a comprehensive exploration of EU taxation law, this engaging Research Handbook investigates the relevant legal principles in the context of both direct and indirect taxation. The important issues and debates arising from these general principles are expertly analysed, with leading scholars examining the status quo as well as setting out an agenda for future research. [less ▲]

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See detailThe ATAD and the CCTB
Haslehner, Werner UL

in Bizioli, Gianluigi; Grandinetti, Mario; Parada, Leopoldo (Eds.) et al Corporate Taxation, Group Debt Funding and Base Erosion - New Perspectives on the EU Anti-Tax Avoidance Directive (2020)

This short chapter analyses the relationship between the interest limitation rules laid down in the Anti-Tax Avoidance Directive (ATAD) and the Proposed Directive on a Common Corporate Tax Base (CCTB ... [more ▼]

This short chapter analyses the relationship between the interest limitation rules laid down in the Anti-Tax Avoidance Directive (ATAD) and the Proposed Directive on a Common Corporate Tax Base (CCTB). Both are substantially congruent with very few differences in their content. Nevertheless, there are several aspects of the relationship between the two directives that raise fundamental questions as to their respective impacts on national law. Accordingly, this contribution aims to highlight, first, the general relationship between European Union (EU) directives, second, the specific relationship between the ATAD and the CCTB – if and when it is adopted – and, third, comments on the few variations in their respective provisions on interest limitation. [less ▲]

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See detailTransfer pricing rules and State aid law
Haslehner, Werner UL

in Panayi, Christiana HJI; Haslehner, Werner; Traversa, Edoardo (Eds.) Research Handbook European Union Taxation Law (2020)

This contribution addresses the interaction of State aid law with transfer pricing rules. A number of high-profile investigations into transfer pricing arrangements approved by Member States’ authorities ... [more ▼]

This contribution addresses the interaction of State aid law with transfer pricing rules. A number of high-profile investigations into transfer pricing arrangements approved by Member States’ authorities, including for companies like Amazon, Apple, and Starbucks has sparked fierce debate over the existence of an EU principle of “arm’s length” taxation and its possible content. The chapter examines this debate and issues pertaining to the relationship between State aid law and double taxation treaties, justifications on the basis of providing double tax relief or protection from tax avoidance, and the scope of administrative discretion that State aid law needs to accord in a highly technical area of national law such as transfer pricing. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 inN Luxembourg I et al.(Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) andT Danmark et al.(Joined Cases C-116/16 and C-117/17)
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2019), 59(10), 487502

The article acknowledges that the “Danish beneficial ownership cases” address a number of important and timely issues, especially with regard to the concept of abuse in EU law. These include (i) the ... [more ▼]

The article acknowledges that the “Danish beneficial ownership cases” address a number of important and timely issues, especially with regard to the concept of abuse in 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 the OECD materials to define the beneficial ownership concept, (iii) the conflation of the beneficial ownership concept with the general anti-abuse principle and the Court’s attempt to give the notion of “abuse” workable contours, and (iv) the reading of an effective subject-to-tax clause with regard to interest income into the definition of a “company” laid down in the IRD. The article also, however, predicts that domestic courts will struggle to translate the abstract guidance of the “Danish beneficial ownership cases” into concrete decisions, that practitioners and academics alike will have to discuss building blocks and nuances of the Grand Chamber’s decisions for some time to come, and that consideration needs to be given to the impact these cases will have on current tax structures. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2019 on the ECJ Decision of 31 May 2018 in Hornbach-Baumarkt (Case C-382/16)
Garcia Prats, Alfredo; Haslehner, Werner UL; Kofler, Georg et al

in European Taxation (2019), 59(9), 446-452

In this Opinion Statement, submitted in April 2019, the CFE discusses the ECJ decision in Hornbach-Baumarkt (Case C-382/16) concerning the application of transfer pricing rules to transactions between ... [more ▼]

In this Opinion Statement, submitted in April 2019, the CFE discusses the ECJ decision in Hornbach-Baumarkt (Case C-382/16) concerning the application of transfer pricing rules to transactions between resident and non-resident associated enterprises. [less ▲]

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See detailTax and the Digital Economy: Challenges and Proposals for Reform
Haslehner, Werner UL; Kofler, Georg; Pantazatou, Aikaterini UL et al

Book published by Wolters Kluwer (2019)

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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: 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 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 detailCase Law Highlights - March-August 2019
Haslehner, Werner UL; Deprez, Christian UL

in Revue de Droit Fiscal (2019)

Case law Hightlight regarding: 1° Administrative Court, 9 July 2019, n°41873C1 – Tax procedure and treaty qualification of liquidation proceeds; 2° Administrative Court, 2 July 2019, n°42250C2: When are ... [more ▼]

Case law Hightlight regarding: 1° Administrative Court, 9 July 2019, n°41873C1 – Tax procedure and treaty qualification of liquidation proceeds; 2° Administrative Court, 2 July 2019, n°42250C2: When are accountants “information holders” for EoI purposes?; 3° Administrative Court on hidden profit distributions; Debt forgiveness and share depreciation (31 July 2019, n°42326C3) and excessive interest (17 July 2019, n°42043C4), [less ▲]

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See detailLuxembourg: Dual Residence and Income Qualification of a Lawyer in Hong Kong
Haslehner, Werner UL

in Kemmeren, Eric; Essers, Peter; Smit, Daniel (Eds.) et al Tax Treaty Case Law Around the Globe 2018 (2019)

The contribution describes and discusses the tax treatment of a dual-resident lawyer in Luxembourg and Hong Kong, and the interpretation of the tax treaty rules applying to that circumstance. The ... [more ▼]

The contribution describes and discusses the tax treatment of a dual-resident lawyer in Luxembourg and Hong Kong, and the interpretation of the tax treaty rules applying to that circumstance. The contribution is based on a judgment rendered by Luxembourg's Cour administrative in 2018. [less ▲]

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See detailArtikel 24. Gleichbehandlung
Haslehner, Werner UL

in Tumpel, Michael; Aigner, Dietmar; Kofler, Georg (Eds.) DBA – Doppelbesteuerungsabkommen Kommentar (2019)

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 detailEU and WTO Law Limits on Digital Business Taxation
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Pantazatou, Aikaterini (Eds.) et al Tax and the Digital Economy: Challenges and Proposals for Reform (2019)

This chapter addresses the challenges and limits posed by two sets of supranational law for any reform of international tax systems aimed at capturing profits made in specific digital business models. By ... [more ▼]

This chapter addresses the challenges and limits posed by two sets of supranational law for any reform of international tax systems aimed at capturing profits made in specific digital business models. By way of background, it first analyses the policy challenges arising from digitalization and lists a few policy responses that have been proposed or implemented recently (§3.02). Specifically, it will focus on specific withholding taxes (WHT) tailored to ‘digital transactions’, new source rules (‘digital nexus’, ‘virtual permanent establishment’ (VPE), ‘significant digital presence’ (SDP)) and specific new taxes directly targeting ‘digital business’ (‘equalization levies’ (EL) and ‘digital services tax’ (DST)). As these ideas are all subject to more detailed review in other chapters in this volume, they are described here only to the extent necessary to perform a generic analysis of potential incompatibilities with supra- and international law. The chapter then reviews well-known limits imposed by European Union (EU) law for tax policy- making with specific reference to such proposed policy responses, distinguishing between limits imposed on EU Member States (§3.03[A]) and on the EU as an independent actor (§3.03[B]). It then follows a less well-trodden path, discussing limitations on reforms arising from World Trade Organization (WTO) law (§3.04), before offering a brief concluding summary of the insights gained from the chapter (§3.05). [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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