Plea for a Multilateral Approach in the Judgments of the European Court of Justice

No clear-cut provision of the Treaty on the Functioning of the European Union (TFEU) provides for a prohibition of double taxation, be it legal or economic. It may, however, be assumed that this prohibition is implicit, as a means to achieve the single market. When it is basically the aim of double tax conventions to prevent double taxation, such Conventions may not cover all possible situations. For these non-envisaged situations, if they entail cross-border aspects within the EU, the European Court of Justice (ECJ) has a mission of guiding the Member States, keeping into mind that their first care will probably be their own national budgets. Different approaches may be discovered in the recent case law of the Court. When some judgments, principally pronounced in the period 2006-2009, were marked by a multilateral approach having regard for the impact in country B of a given levy of tax in country A, other judgments restricted the scope of analyses to a given country, with no consideration for adverse consequences suffered elsewhere by taxpayers. The judgments developing the multilateral approach are interesting particularly for the decisive role they allow to double tax conventions, recognized as integral part of the tax legislation of Member States.

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