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Publishers Abstract:
In recent decisions, the ECJ has repeatedly required Member States to comply with a standard of "consistency and coherence" in order to justify deviations from the fundamental freedoms. Previous analysis has shown that requirement to be neither particularly new nor alien to the structure of EU law and its interaction with the law of Member States, as might first appear. Apart from this recent assessment, the potential reach of the concept remains mostly unexplored. This article undertakes to analyse and pinpoint its significance, taking direct tax law as an example. Consistency is a powerful concept that provides a guiding light for good decision-making. Tax policy is no exception. It is less clear, however, whether consistency can be regarded as a legal requirement for adjudicative, administrative and especially legislative decision-making. At the very start of an analysis of national tax provisions under the fundamental freedoms lies the quest to establish comparability between the taxpayer alleging discrimination and a different taxpayer, in comparison to which the former is treated less favourably.
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