Freedom of establishment tax jurisprudence: Avoir Fiscal re–visited

This paper examines the tax jurisprudence of the ECJ relating to the freedom of establishment from the perspective of a ‘host’ Member State and from that of an ‘origin’ Member State. The Court’s Avoir Fiscal decision is revisited and reconsidered. The Court’s subsequent case law is analysed. The paper highlights that a ‘national treatment’ test is applied by the Court from both perspectives.

The paper also demonstrates that the reasoning used in Avoir Fiscal, an establishment case, has been used analogously by the Court in relation to the other fundamental freedoms and that the Court’s application of the concept of comparability has been deeply influenced by this seminal and landmark judgment.