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The ‘EU arm’s length principle’ gradually evolved into an ‘EU arm’s length tool’ in the Starbucks, Fiat, Apple, and Amazon judgments of the General Court of the European Union (‘GC’). This contribution analyzes in detail why a ‘principle’ progressed into a ‘tool’ in these judgments. For this matter, it considers the arm’s length standard from the point of view of the regulation strategy of states (i.e., a reflexive regulation strategy) to govern the taxation of multinational companies. The author maintains that the regulatory design of the arm’s length standard entails a choice for ‘reflexive transfer pricing law’ and subsequently relies on that perspective for analyzing the judgments of the GC. This angle meticulously illustrates that the abuse of discretionary powers by the tax authorities in the process of monitoring the residual profit allocation of the taxpayer constitutes the relevant state aid problem. The contribution concludes that the GC eventually devised a rather toothless ‘tool’ that does not properly address this issue. At the same time, it also concludes that it should be relatively straightforward for the Court of Justice EU to finetune the ‘EU arm’s length tool’ in order to establish an effective and foreseeable reconciliation of EU state aid law and transfer pricing law. For this matter, the contribution puts forward a concrete recommendation. EU fiscal state aid control, EU state aid law, EU arm’s length principle, EU arm’s length tool, transfer pricing, residual profit allocation, APA, Apple

This article focuses on the complex challenges affecting the relationship between different tax systems (national, international and EU) within a context, like the current GloBE project, which is looking for appropriate tax measures applying on a global scale. In fact, the need of developing tax measures with a global character requires specific attention to be given to issues concerning the effectiveness of these measures in light of the relationship between the relevant tax systems. More specifically, within the framework of this article, the analysis aimed at evaluating the possibilities of guaranteeing a fully effective application of the GloBE income inclusion rule has been conducted on the basis of two crucial factors, i.e. (1) the compliance of the income inclusion rule with international tax treaty law and with EU tax law, and (2) the coordination between international tax treaty law and EU tax law. Global Anti-Base Erosion (GloBE) project, Pillar Two, Income Inclusion Rule, BEPS, CFC legislation, Abuse, OECD/G20 Inclusive Framework, Saving Clause.

This contribution considers the use of the principle of proportionality to review measures combatting international tax abuse (avoidance and evasion). Our claim is that proportionality, which tends to be viewed as the key analytical tool to balance tax equity against the interests of taxpayers, is ill-suited to the review of such measures. This we will demonstrate from a theoretical angle, but also through the analysis of the CJEU, international investment tribunals and WTO adjudicatory bodies: rather than balancing tax certainty against tax equity or focusing on the efficiency of the anti-tax abuse measures in the pursuit of substantive policy goals (the types of enquires normally associated with proportionality), what we observe is an assessment and gradual demarcation of the rightful territorial extent of the State’s taxation powers.

On 23 July 2020, the European Commission launched public consultations on two tax related proposals, namely a revision of the Energy Taxation Directive and the creation of a Carbon Border Adjustment Mechanism. These proposals are part of the European Green Deal, a strategy that aims, amongst other things, to put the well-being of citizens at the centre of economic policy. In this article, the well-being aims put forward in the Green Deal are considered in connection with the Commission’s tax related proposals in that regard as included in the public consultations of July 2020. It is concluded that, while taking on board well-being aims may be valuable in that it obliges to consider in a broad way what is good for people, the current references to well-being by the Commission in the Green Deal lack clarity and raise a number of important questions. Recommendations are provided, also with respect to the envisaged role of taxation in tackling environmental issues.

The primary aim of this article is to question whether the general anti-abuse rule (GAAR) of Anti-Tax Avoidance Directive (ATAD) is an effective tool to tackle tax avoidance. By using a comparative technique as a method, other directives that include a GAAR will be analysed as a companion to the ATAD to identify whether there is a common understanding of the concept of abuse of tax laws within the EU legal order. Then the general consequences of the application of the GAAR of the ATAD will be exposed. The difficulties which could be encountered in the application procedure will be explained around some potential scenarios, based on simple models developed by the author. Tax Avoidance, Abusive Tax Practices, Artificial/Genuine Arrangement(s), Main Purpose(s) Test, Tax Advantage, General Anti-abuse Rule(s) (GAARs), Anti-Tax Avoidance Directive (ATAD), Interest-Royalties Directive, Merger Directive, Parent- Subsidiary Directive.

The launching of the new tobacco products, namely e-cigarettes and heat-not-burn tobacco, poses a challenge to the current EU legal framework of the excise duty applied to manufactured tobacco, currently under the revision by EU Commission. This contribution grasps the tobacco example to question the EU legitimacy to harmonize within Article 113 Treaty of Functioning of the European Union (TFEU).

As will be demonstrated in this article, the concepts of abuse adopted at EU and OECD level do not coincide completely. As a result of these differences, conflicts may concretely arise between the EU and international obligations held by the same EU Member State. Furthermore, due to legal pluralism (i.e. the fact that each legal system, in principle, is developed and, therefore, functions autonomously on a global level) very often, in case of conflict, different conflict rules will be applicable, without the possibility of guaranteeing coordination between international tax treaty law and EU tax law. In the absence of common coercive solutions, the author argues that coordination between international tax treaty law and EU tax law requires a dialectical approach through which conflicts can be managed. Therefore, conflicts become an opportunity for discussion and negotiation in order to pursue – step-by-step – solutions conciliating the international and the EU tax systems. Indeed, the achievement of complete coordination could not be immediate, but require intermediate steps. Any dialectical approach requires phases of compromise. This is implicit in the concept of managing conflicts on which legal pluralism is based. Tax Abuse, Legal Pluralism, Coordination, tax treaties, EU law, conflict rules, double taxation, fundamental freedoms, artificial arrangement, proportionality, legal certainty, dialectical approach, PPT rule

The complex interconnections characterizing the relationship between the international tax treaty law system and the EU tax law system increasingly require attention. Accordingly, within the framework of this article, the judgment of the EU Court of Justice concerning the Danish cases on interest has provided the concrete opportunity to evaluate the significant effects that a lack of coordination between these two systems may have. In fact, due to the broad economic concept of beneficial owner applied by the EU Court of Justice vis-à-vis the narrower OECD concept, there is no complete coordination between EU tax law and international tax treaty law. Even if, under the OECD approach, further conduit arrangements are covered under Article 7(1) of the MLI (or the anti-conduit mechanism), the different scope of the OECD and the EU concepts of abuse is an obstacle to complete coordination. Very significantly, this lack of coordination may concretely create situations of conflict between the international and the EU obligations held by the same EU Member State. The significant practical relevance of these conflicts, which cannot be solved on the basis of a common conflict rule, requires solutions in terms of global tax governance. Accordingly, the author has developed her theory on the basis of a legal pluralist approach. Beneficial owner, Danish cases on interest, legal pluralism, global tax governance, tax abuse, coordination, tax treaties, EU law, conflict rules, dialectical approach, PPT rule.

The cost-sharing exemption applied in the field of VAT is losing its relevance rapidly as it is becoming clear that it cannot be applied in many sectors of the economy after all.

In recent years international taxation has become a hotly disputed topic. Luxleaks, Pamana papers, Paradise Papers, State Aid-cases, etc. received a lot of media coverage. As a result, tax is at the top of the political agenda of for example the G20, OECD and EU and many substantial changes are taking place. Rebuilding trust among major stakeholders is crucial for a sustainable international infrastructure in respect of taxation. The current unrest with regard to multinational companies’ tax planning practices shows that society demands companies to integrate tax governance in their corporate governance. Society demands moral evaluation of tax planning practices - even if it is legal tax avoidance, aimed at minimising companies’ tax liability. Companies do well, therefore, to integrate ethical risks with regard to tax in their risk management. Paying taxes and morality are apparently connected. This article will elaborate on the moral dimension of paying taxes. Tax administrations are also interested in the governance of taxation, because the tax behaviour of multinational enterprises can indicate much regarding their acceptance of risk and attitude towards tax planning. But how can they trust that multinational companies are complying with the law and want to build a good relationship with tax administrations and society? We focus on tax codes of conduct which are currently used by companies and regulators in an attempt to obtain greater control over economic and social relationships. Corporations publish codes to communicate their standards of ethical behaviour internally and externally - enabling (moral) evaluation by stakeholders. Tax codes of conduct relate to tax risks and substantive and procedural ethical norms. May be tax codes of conduct are a way to meet stakeholder needs with regard to tax in the current highly politicized and mediatised environment.

The pending tax ruling constitute a new saga in the continuous political battle between the Member States and the European Commission about the limits of article 107 TFEU within the complex multi-level tax governance system of the EU. This article claims that the legal determination of these limits – as reflected in the distinction between general measures and fiscal state aids – cannot provide for a rational explanation concerning the balance of power between the Member States and the European Commission. Consequently, it cannot be maintained that the European Commission should merely monitor the limits of EU fiscal state aid control as defined by the Member States. Such an understanding is at odds with the prevailing neo-functionalist reality in which the European Commission is able to develop state aid policies in an independent way. This contribution reaches these conclusions on the basis of a combination of the legal and the political-economic traditions that study EU (fiscal) state aid control. It calls for more multidisciplinary academic discussion about the desirable function and limits of EU fiscal state aid control.

The phenomenon of cross-border pension benefits has gained exponential traction in recent decades, the assumed main causes being greater mobility among taxpayers, globalization, the blurring of borders within Europe, and technological advances that have made it relatively easy for people to settle permanently abroad following their retirement. From a tax perspective, one question that is relevant in this context is which country has the right to impose tax on pension benefits following emigration. In this article I will discuss what I believe to be an appropriate allocation of taxing rights for cross-border pension payments.

The primary goal of this article is to analyse the use of the term ‘tax avoidance’ in the legislative framework and case law of the European Union to point out the absence of a common linguistic approach. The consequences derived from the terminological chaos will also be discussed; thus, the study will try to display how big and deep the problem is by giving special attention to the semantic aspects that cannot, in fact, be ignored anymore. Furthermore, the principles stemming from the case law will be reviewed, since they are regarded as the outcome of the interpretation of tax avoidance by the judiciary.

A recurrent topic of debate concerns the effects of transfer pricing adjustments for direct tax purposes on the taxable amount for VAT. This topic is currently gaining attention, which is underlined by the recently published VAT Committee working paper on the possible VAT effects of transfer pricing adjustments. Focussing on so-called ‘year-end transfer pricing adjustments’, the authors discuss various fundamental questions concerning the VAT implications of such adjustments. Do year-end adjustments lead to retroactive adjustments to the taxable amounts for VAT of supplies made throughout the year? If any retroactive adjustments need to be made to the taxable amounts for VAT, what are the implications for the VAT returns, EC-Sales lists and interests? What if a year-end adjustment does not lead to an adjustment of the taxable amount for VAT? Can intercompany payments (which follow from year-end adjustments) then be regarded as the remuneration for any service rendered? Or are year-end adjustments merely to be regarded as financial transactions outside the scope of EU VAT after all? These, and other questions are discussed in this article.

Each year the international conference Tax Treaty Case Law Around the Globe provides a forum to discuss with outstanding experts of the relevant jurisdictions the most important and interesting tax treaty cases which recently have been decided all over the world. This article provides a report on the 2016 Tax Treaty Case Law Around the Globe conference held in the Netherlands at Tilburg University on 19–21 May 2016 and which covered seven main topic clusters: (1) Scope, tax treaty interpretation and residence; (2) Permanent establishment (PE); (3) Business profits and transfer pricing; (4) Labour income; (5) Beneficial ownership, royalties and capital gains; (6) Relief for double taxation and limitation on benefits (LOB); and (7) Non-discrimination, exchange of information and recovery.

On 7 September 2014 the European Court of Justice delivered its landmark decision in the Skandia America Corporation case (C-7/13). The judgment deals with the Value Added Tax (VAT) treatment of services provided by a foreign head office to its fixed establishment, which is included in a VAT group. The case has a huge potential impact not only in the financial services sector, but in cross-border business in general. Now, almost two years after the decision was taken, the author reflects on the judgment, taking into account the views of various stakeholders. The different approaches of Member States will be outlined as well as the potential way forward.

Pensions are currently at the top of the agenda of companies, employees, pension carriers, governments and, last but not least, the European Commission. This is partly because of the economic crisis pension funds are in right now but also because of the ageing population and the impact on public treasuries. These problems however cannot be solved easily. A well-functioning internal market for pan-European pensions without tax barriers can however contribute in solving the current pension crisis. In this article the authors describe the current situation and legislation regarding cross-border pension carriers and pension schemes within the EU. Since taxation is still one of the largest barriers for a well-functioning internal market for pension schemes, this aspect gets a lot of attention of the authors. They do not only describe current legislation and recommend changes; they also present a solution which is already being developed and is in line with current legislation: a multi-country tax-efficient pension scheme.

Cooperative tax compliance approaches were initiated in the 2000s as an alternative to more efficiently allocate tax administrations’ limited resources to high-risk taxpayers while establishing a more collaborative, transparent, and trust-based relationship with those that are low risk. In 2008 and 2013, the Organisation for Economic Co-operation and Development (OECD) began to promote ‘enhanced relationship’ approaches for which taxpayers would offer full transparency in exchange for less tax uncertainty. Since then, cooperative tax compliance has gained importance with an increasing number of countries adopting it and, in 2018, with the inauguration of an international and multilateral program, the International Compliance Assurance Programme. Despite that, there is not yet a uniform understanding of the constituting elements of cooperative compliance as countries with completely different approaches from one another all claim to have established cooperative compliance programs. In this article, the author reviews the approaches to cooperative tax compliance existing in Brazil, testing if such approaches conform with international tax practice and the OECD Cooperative Compliance Framework. Cooperative tax compliance, cooperative compliance, enhanced relationship, OECD, corporate governance, internal controls, tax control framework, risk assessment, tax audit, tax assurance, tax certainty, trust-based, tax transparency, the International Compliance Assurance Programme (ICAP), Brazil, ‘projeto Confia’

EU State aid draws international attention recent years due to its application to fiscal measures granted by Member States to multinational enterprises. It has triggered discussions on the reasonableness of applying State aid law to tax measures. This article aims to explore the fundamental rationale behind EU State aid and its application to tax incentives. By going back to basics, this article contributes to a clearer picture on reasons for the State aid control over tax incentives. Governments tend to use fiscal State aid measures to achieve policy goals and tax incentives could realize the goals since they do bring beneficial effects. However, considering efficiency and equity in the internal market, tax incentives can cause harmful effects as well. It is necessary for State aid law to regulate the harmful effects of tax incentives, therefore guaranteeing the level playing field in the internal market.