Bullettin n. 1/2011
June 2011
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Milanesi Elsa
    La fiscalità diretta nelle sentenze della Corte di giustizia dell’Unione europea. Una riflessione sul principio di non restrizione delle libertà fondamentali
    in Studi sull'integrazione europea , Anno VI, n. 1, gennaio-aprile ,  2011 ,  133-162
    The article focuses on the judgments of the Court of Justice over the last ten years, that have dealt with matters that affect the field of direct taxation, such as the taxation of outbound dividends, taxation of work income and even the deduction of losses or costs when ealing with certain issues of negative income. Particular focus is paid to the rules that the courts of Luxembourg pply, when checking tax law compatibility within Member tates with the fundamental freedoms guaranteed by the TFEU. This is essentially the principle of nonrestriction of fundamental freedoms (Articles 49, 56 and 63 TFEU) and the principle of nondiscrimination (Articles 18 and 45 TFEU). In jurisprudence, the two concepts of discrimination and restriction are generally placed side by side, merging within the definition of discriminatory restriction. Such principle is justified by the fact that national tax rules that restrict fundamental freedoms fall into one category or the other – into direct or indirect discriminatory measures, as, even today, the tax jurisdiction of Member States is based on the criteria of residence or origin of income. The principle of non-discriminatory restriction does not, however, remove restrictions resulting from the inevitable coexistence of separate tax systems. In accordance with the principle that the current state of European law establishes the responsibility of the Member States relating to direct taxation, direct taxes within the EU, in fact, are managed by National tax regimes that coexist with their differences and peculiarities. So some of the disadvantages that affect companies involved in crossborder transactions can be a direct and inevitable consequence of the juxtaposition of such systems. Again, these rules,however, constitute obstacles to the free movement of factors of production in the EU, as they produce deterrent effects. However, for these rules to be removed, European courts could apply the principle of non-restriction of fundamental freedom, understood in its broadest sense. The Court of Justice, however, adheres to a different approach. To eliminate distortions in economic activity caused by various tax systems coexisting alongside each other, European judges maintain intervention of European legislature to be required, hence promoting a process of harmonization. Adopting measures of tax harmonization, however, is not always possible. Article 113 TFEU provides, even today, for the implementation of such particularly rigorous legal agreement constraints, such as voting procedures, consensus unanimity and indirect taxation as a harmonizing instrument. It seems more likely in the current state of EU law that the activities of the Court of Justice in the field of direct taxation represent an effective stimulus for each Member State to work on a national action plan aimed at overcoming the barriers stemming from the diverse Member States’ tax systems.
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