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Ana Paula Dourado
Intertax
Volume 50, Issue 6/7 (2022) pp. 521 – 526
https://doi.org/10.54648/taxi2022056
Abstract
A legally binding link for a simultaneous implementation of Pillars One and Two in the European Union (EU), as requested by one Member State, has not been accepted by the French Presidency. The author contends that a legal link between the Directive on Pillar Two and international developments is not incompatible with European sovereignty. This is so, for several reasons: (1) the competence for implementing the minimum tax foreseen by Pillar Two is not exclusive to the EU; (2) the principle of primacy would not impede the EU harmonization on Pillar Two being made dependent upon the evolution of the international agreements on the topic; (3) taking into account the developments of Pillar Two and the contents of the proposal for a Directive, it is dubious that a Directive is necessary for fulfilling the requirements of the internal market; (4) the interaction among all the instruments, exceptions, deferrals, and options foreseen in the model rules, in the original Proposal and the concessions may lead to multiple regimes. The latter can be achieved by the national transposition of the model rules.
Keywords
Pillar Two Directive, principle of autonomy, principle of primacy, European sovereignty, EU legal order, international tax agreement, treaty override, EU external relations, EU competence, subsidiarity, proportionality
Extract
The article analyses the Ajos case and seeks to explain what led the Danish Supreme Court to refuse to comply with the judgment of the ECJ. The reasoning of the ECJ and the Danish Supreme Court are examined from the points of view of, respectively, the EU legal order and Danish law. It is argued that the judgments of the ECJ and of the Danish Supreme Court are both legally sound and understandable when read from each courts’ legal perspective. However, regrettably, both courts failed in carrying out a judicial dialogue in the spirit of good faith. Instead, the preliminary reference procedure was used in a way that gradually built up tensions and ended in a clear clash. The article finally examines the significance of the lacunae that the case has left between Danish law and EU law
Common Market Law Review