Capet - bombimg tax avoidance in Europe examining the validity of the ATAD under EU law Ivan Lazarov & Sriram Govind
By: Lazarov, Ivan
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Contributor(s): Govind, Sriram.
Material type: 
ArticlePublisher: 2019Subject(s): ATAD | ELUSION FISCAL | PREVENCIÓN | LEGISLACION COMUNITARIA | INCUMPLIMIENTO DEL DERECHO COMUNITARIO | UNION EUROPEA
In:
Intertax v. 47, issue 10, October 2019, p. 852-868Summary: This article examines the compatibility of the Anti-Tax Avoidance Directive (ATAD) with primary EU law on four grounds. First, it argues that the Directive is incompatible with the general principle of anti-abuse developed by the CJEU. Second, it considers the Directive to not comply with the requirements of Article 115 TFEU as it does not contribute to the "establishment and functioning of the internal market" per accepted case law of the CJEU. Third, the Directive is at odds with the principle of subsidiarity, as the Commission put forward no convincing evidence regarding the need for such a directive at EU level. Finally, several provisions of the Directive go beyond what is necessary to combat artificial arrangements in a tailor-made fashion, thereby making it incompatible with the principle of proportionality.
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Resumen.
This article examines the compatibility of the Anti-Tax Avoidance Directive (ATAD) with primary EU law on four grounds. First, it argues that the Directive is incompatible with the general principle of anti-abuse developed by the CJEU. Second, it considers the Directive to not comply with the requirements of Article 115 TFEU as it does not contribute to the "establishment and functioning of the internal market" per accepted case law of the CJEU. Third, the Directive is at odds with the principle of subsidiarity, as the Commission put forward no convincing evidence regarding the need for such a directive at EU level. Finally, several provisions of the Directive go beyond what is necessary to combat artificial arrangements in a tailor-made fashion, thereby making it incompatible with the principle of proportionality.
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