Article: Conflicts between Directives that Require Taxation of Income and Tax Treaties: The Effectiveness of the EU Primacy-based Conflict Rule

IF 0.8 Q2 LAW Intertax Pub Date : 2024-04-01 DOI:10.54648/taxi2024032
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Abstract

Directives in the area of direct taxation can obligate EU Member States to tax income. This obligation can conflict with obligations under tax treaties to not tax income. With respect to such a conflict, the question arises as to how it should be resolved. In this article, this question is addressed from the perspective of EU law, more specifically the primacy of EU law’s conflict rule. Pursuant to this conflict rule, tax treaty provisions whose application within a legal order of an EU Member State is incompatible with a provision of a directive, must be set aside by an EU Member State court. Whereas this conflict might seem to provide an effective tool for resolving conflicts between directives requiring taxation and tax treaties requiring non-taxation, the prohibition of reverse vertical direct effect, in addition to Article 351 TFEU (for pre-accession tax treaties with third states), entails that it is, in fact, an ineffective tool for resolving such conflicts. This is because it follows from this prohibition that a directive cannot set aside a tax treaty on the basis of the primacy-based conflict rule if this results in an obligation for a taxpayer such as a higher tax burden. Primacy, prohibition of reverse vertical direct effect, Article 351 TFEU, C-435/22 PPU, directives, tax treaties, conflicts, conflicts between directives and tax treaties.
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文章:要求对收入征税的指令与税务条约之间的冲突:欧盟基于优先权的冲突规则的有效性
直接征税领域的指令可规定欧盟成员国有义务对收入征税。这一义务可能与税收条约规定的不对收入征税的义务相冲突。对于这种冲突,就会产生如何解决的问题。本文将从欧盟法律的角度来探讨这一问题,更具体地说,是欧盟法律冲突规则的首要地位。根据这一冲突规则,如果税收协定条款在欧盟成员国法律秩序中的适用与指令条款相抵触,则必须由欧盟成员国法院予以撤销。尽管这种冲突似乎为解决要求征税的指令与要求不征税的税务条约之间的冲突提供了有效工具,但除了《欧盟运作条约》第 351 条(针对加入欧盟前与第三国签订的税务条约)之外,禁止反向纵向直接效力的规定使其事实上成为解决此类冲突的无效工具。这是因为从这一禁止规定中可以看出,如果指令导致纳税人承担义务(如更高的税收负担),则指令不能根据基于优先权的冲突规则撤销税收协定。
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来源期刊
Intertax
Intertax LAW-
CiteScore
0.80
自引率
50.00%
发文量
45
期刊最新文献
(In)congruence Between Taxation, Spending, and Representation: The Ambiguous Character of Tax-based Contributions Taxing Powers of the European Union Judicial Review of the EU Own Resources Decision by the ECJ Protecting EU Financial Interests in the Collection of Tax-Based Own Resources Article: Conflicts between Directives that Require Taxation of Income and Tax Treaties: The Effectiveness of the EU Primacy-based Conflict Rule
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