The controversial legal basis of the anti-tax avoidance Directive. An analysis in the light of the linking rules

Abstract

The Anti-Tax Avoidance Directive (ATAD) marks a radical departure from harmonizing directives so far adopted in the field of direct taxation. While the latter aimed at abolishing tax obstacles jeopardizing the exercise of fundamental freedoms, the ATAD aims at preventing tax avoidance, a goal so far conceived as an objective to be achieved at the level of Member States. However, an objective does not acquire EU status only because it appears as such in a directive. In the field of direct taxation, directives can only be adopted for “the approximation of […] laws […] of the Member States, as directly affect the functioning of the internal market”, as established in art. 115 TFEU, the sole possible legal basis for adopting a directive in that field. The ATAD, instead of approximating domestic legislations, lays down anti-tax avoidance rules, having some of them a similar content to those of domestic anti-tax avoidance rules that the ECJ has had to tolerate due to the lack of essential harmonization of direct taxation, while having, some others, a content which is incompatible with the ECJ’s jurisprudence in the field, as they apply to genuine transactions, thereby giving absolute priority to the need to prevent tax avoidance over the fundamental freedoms. This article explains the reasons why art. 115 TFEU is not the proper legal basis to adopt a directive aimed, exclusively, at fighting against aggressive tax planning, at least, in the manner in which this goal is pursued by the ATAD.