Yearbook of European Law - Vol. 14

By Francis Geoffrey Jacobs | Go to book overview

Fiscal Barriers to Companies' Cross-Border Establishment in the Case-Law of the EC Court of Justice

JAN WOUTERS

In a steadily increasing number of cases the Court of Justice of the European Communities is asked to assess the compatibility of national tax rules with the EC Treaty's provisions concerning the freedom of establishment of companies. This article takes a closer look at the judgments in this area, while situating them in the broader context of the case-law on free movement.1 After a discussion of the cases on companies, attention is given to the recent judgment in Schumacker2 and its possible impact on the status of tax barriers to companies' right of establishment.


I. The Community legal framework

The Community legal framework on the subject-matter is characterized by generic Treaty provisions on the right of establishment of companies, a lack of an explicit Treaty basis for corporate tax legislation and very few EC legislation adopted yet.


A. TREATY PROVISIONS RELATING TO COMPANIES' RIGHT OF ESTABLISHMENT

As regards companies' right of establishment, it is well-known that the EC Treaty operates by analogy with the regime applicable to natural persons.3 Read together with Article 58, Article 52 EC obliges the Member States to abolish restrictions -- in the first place, discriminatory restrictions -- on the freedom of establishment of companies of one Member State in the territory of another Member State, an obligation which also applies to

____________________
1
For a more global analysis of the Court's case-law on direct taxes, see J. Wouters, "The Case-Law of the European Court of Justice on Direct Taxes: Variations upon a Theme", Maastricht Journal of European and Comparative Law, ( 1994) 179-220.
2
Judgment of 14 Feb 1995 in Case C-279/93 Finanzamt Köln-Altstadt v Schumacker, not yet reported.
3
This follows from Art 58, EC: first indent, 'Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States'.
© Jan Wouters, 1994. Lecturer in Law, State University of Limburg; Professor, Advanced Training Programme in Company Law, Catholic Universities of Louvain and Brussels.

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