Interaction between the Interpretation of the Non-discrimination Provisions in Tax Treaties and in the EC Treaty: An Apparent Rather than Real Conflict

Abstract: In this article, the author demonstrates how a potentially discriminatory situation can be interpreted differently when analysed from two different tax perspectives: from the tax treaty and from the EC Treaty perspective. Besides, the author shows that, between these two sets of non-discrimination provisions, the given conflict of interpretation is only apparent, as far as both sets of provisions are independently applicable, to the extent that the tax treaty non-discrimination provision and the nondiscrimination provisions in the EC Treaty create two different and independent layers of obligations for the Contracting States. This rationale can be applied either to cases involving EU Member States or to cases where EU and non-EU Member States are parties to a tax treaty.