International Double (Non-)taxation: Comparative Guidance from European Legal Principles

Abstract:

The principle of fairness advocates against international double taxation and international double non-taxation. Countries and international organizations (OECD, G20 and EU) have taken several initiatives against such taxation. However, these initiatives are not always effective. Also, certain legal authors question the legitimacy of the OECD and its action plan on BEPS. The essential goal of this research is to find guidelines to address international double (non-) taxation. We first argue that the principle of fairness is reflected in the legal principles of proportionality, non-discrimination and the rule of law. Subsequently, we derive guidelines from these principles. We address the research question by reference to these principles as enshrined in the European Convention on Human Rights (ECHR) and in the constitutional orders of Belgium, France, Germany and the United Kingdom. Our main conclusion is that excessive international double taxation and unintended international double non-taxation do not sit well with a comprehensive approach as advocated by the legal principles. We also argue that the rule of law requires the national states to guarantee the balancing of all relevant national interests through in-depth parliamentary debate. Finally, we submit that cross-pollination between international organizations and national parliaments would contribute to the legitimacy of those organizations.