Non-Discrimination à la Cour: The ECJ’s (Lack of) Comparability Analysis in Direct Tax Cases

The ECJ’s discrimination analysis in direct tax cases is inconsistent. It sometimes creates discrimination, condemns non-existent discrimination or fails to address discrimination. Only one comparability standard makes sense: to be (subject to tax) or not to be (subject to tax). The ECJ is not competent to require Member States to (selectively) assert taxing power where they symmetrically and sovereignly have decided not to. There is also only one relevant justification for differential tax treatment: tax base integrity.