European Tax Controversies: A British-Dutch Debate: Back to Basics and Is the ECJ Consistent?
- T. O’Shea
- World Tax Journal, 2013 (Volume 5), No 1
- 8 February 2013
This article is the second in a series of seminal articles in which the author examines some of the key debates concerning the direct tax jurisprudence of the Court of Justice of the European Union (ECJ). The author effectively argues that the direct tax jurisprudence of the ECJ is extremely consistent and that much of the criticism of the Court’s jurisprudence in the scholarly literature is wrong, ill-considered and inappropriate. In this article, the author critically examines the recent publications of two leading Dutch academics and tax practitioners and demonstrates that there is an alternative view of the issues raised in their publications which demonstrates that the Court’s jurisprudence is entirely consistent. In the final part, the author demonstrates how the Court in its direct tax jurisprudence applies the national treatment principle from both an origin and a host Member State perspective and the author explains the significance of why a comparator relating to an origin Member State situation differs from a comparator involving a host Member State situation.