Freedom of Establishment and the Balanced Allocation of Tax Jurisdiction

The article analyses the case law of the Court of Justice of the European Union in relation to the different justification grounds that Member States can rely on in regard to restrictive national tax measures. The main purpose of the article is to reconcile the different justification grounds in order to present a (more) coherent approach to evaluating national anti-abuse legislation. It is submitted that the justification ground of 'balanced allocation of tax jurisdiction' and the arm's-length principle for allocation of income should form an important basis under EU law for the evaluation of national anti-abuse legislation.