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Taxation at the Crossroads of Fundamental Rights and Fundamental Freedoms in the EU
Haslehner, Werner
2017In Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) EU Tax Law and Policy in the 21st Century
 

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Keywords :
Fundamental rights and tax; EU freedoms and tax; human rights; EU rights and freedoms
Abstract :
[en] 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.
Disciplines :
European & international law
Tax law
Author, co-author :
Haslehner, Werner  ;  University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit
External co-authors :
no
Language :
English
Title :
Taxation at the Crossroads of Fundamental Rights and Fundamental Freedoms in the EU
Publication date :
October 2017
Main work title :
EU Tax Law and Policy in the 21st Century
Editor :
Haslehner, Werner  
Kofler, Georg
Rust, Alexander
Publisher :
Kluwer Law International, Alphen aan den Rijn, Netherlands
ISBN/EAN :
978-90-411-8815-1
Collection name :
EUCOTAX Series Volume 55
Pages :
155-177
Focus Area :
Law / European Law
Available on ORBilu :
since 07 September 2017

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