European community direct taxation: the recent integration trends

Master thesis Lithuanian OPEN
Kalvytė, Vesta (2011)
  • Publisher: Vilnius University
  • Subject: Pozityvioji ir negatyvioji integracija | Integracijos poreikis | Bendros konsoliduotos pelno mokesčio bazės kūrimas | Tiesioginiai mokesčiai | Teisinė bazė

While Member States retain direct tax sovereignity and determine the tax, its base, rate, taxable subjects discretionary, fundamental differencies occur, resulting in market fragmentation and big obstacles for effective functioning of Community internal market. These differencies and the gap between harmonization in direct taxes and other spheres stipulate the need of harmonization and pressure for the Member States. However, the sole harmonization base requires the Council to act unanimously (starting from year 2004 – by consent of 27 states). This de facto blocks the law-making of compulsory acts and leads to stagnation of political decisions. Contrary to positive integration, negative integration (mostly founded on prohibitions to restrict free movement) proceeds rapidly, while in the meantime the number of cases solved by European Court of Justice (ECJ) and infringement procedures initiated by Commision which ensure the spread of ECJ cases’ ratio decidendi is constantly growing. ECJ when providing the decisions applies overall approach: evaluation of one Member State’s laws means taking into account the whole situation, including the laws of other related Member State and their inter-tax treaties. Therefore the same law is liable to be restrictive in relation to the laws of Member State A, but not restrictive in relation with the laws of Member State B. This doctrine is based under the Cassis de Dijon principle of mutual recognition: Member State is obliged to consider the laws of other Member State. This notwithstanding, in direct taxation this principle is not reasonable: it seriously breaks Member States’ sovereignity (makes direct tax systems dependant on each other) and in practice leads nowhere thus creates destabilization. The fact accepted by ECJ in Kerckhaert Morres that international double taxation does not contradict to EC law is too separate to compare with the whole doctine that it would be able to deny the tendency of application of the principle of mutual recognition in direct taxation. Even more – it expressly shows the conflicts in doctrine of ECJ itself. ECJ ad hoc rapid and chaotic activity in the field of direct taxation not even becomes the potential background for positive integration (Commision in its proposals for laws expressly agrees with ECJ ratio decidendi without any doubt), but in principle pursues positive integration itself: new rules not encompassed by even broadly interpreted boundaries of the EC law prohibitions are created. The sole active strategic aim starting from 2001 to establish common consolidated corporate tax base is ultima ratio measure which is difficult to evaluate: even if a part of Member States would agree on basic principles, enhanced cooperation de facto would be a pressure for sovereignity of other Member States. Thus it is probably that they will submit it due to negative consequences to be experienced in case of refusal. Or, as an alternative, Europe à la carte fiscale will be created, which in the essence is contradictory to the whole nature of the internal market. However, following the position of the ECJ expressed to integration, this initiative is possible to defend de jure.
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