This article examines the compatibility of the Anti-Tax Avoidance Directive (ATAD) with primary EU law on four grounds. First, it argues that the Directive is incompatible with the general principle of anti-abuse developed by the CJEU. Second, it considers the Directive to not comply with the requirements of Article 115 TFEU as it does not contribute to the ‘establishment and functioning of the internal market’ per accepted case law of the CJEU. Third, the Directive is at odds with the principle of subsidiarity, as the Commission put forward no convincing evidence regarding the need for such a directive at an EU level. Finally, several provisions of the Directive go beyond what is necessary to combat artificial arrangements in a tailor-made fashion, thereby making it incompatible with the principle of proportionality.
Intertax