"Consistency" and Fundamental Freedoms: The Case of Direct Taxation

This article undertakes it to analyse and pinpoint the significance of the principle of "consistency" for the interpretation of the fundamental freedoms, taking direct tax law as an example of a subject matter that falls squarely into the competence of the Member States. As such, direct taxation provides a prime example for the conflicting principles of national parliamentary sovereignty and quasi-constitutional supranational limits to this sovereignty and thus an ideal case for such analysis. It shows that many of the peculiarities of the ECJ decisions on tax discrimination can be reconceptualised and understood in terms of the idea of consistency. Through the discussion of the main justifications unique to direct tax cases, the article also reveals the Court of Justice's inconsistencies in respect of its application of that central idea and advocates a more stringent approach to improve the transparency of the case law and thus, in turn, its consistency. This approach is explained in more detail by reference to different tests for consistency to be employed on each stage of the proportionality analysis, and defended against possible objections to different standards of the concept.