EU-domstolens restriktionsprövning i mål om de grundläggande friheterna och direkta skatter

Sammanfattning: In close to two hundred cases, the Court of Justice of the European Union has faced questions concering whether Member States’ substantive direct tax rules are compatible with the fundamental freedoms found in the Treaty on the Functioning of the European Union. Rules that constitute a restriction on the freedoms can still be compatible with them, but only in case they are justified based on a legitimate objective recognised by the Court. The purpose of this study is to determine the Court’s reasoning when evaluating whether substantive direct tax rules constitute a restriction, here called the restriction test. Accordingly, questions regarding the possibilities of justification are largely left out of the study.The purpose of the study is pursued through an in-depth analysis of the Court’s case law. In this kind of cases the Court’s restriction test is almost always explicitly based on a comparison. The Court finds Member States’ rules to constitute a restriction if they place taxpayers in a cross-border situation in a disadvantage compared to taxpayers in a different, but comparable, situation. Therefore, the analysis aims at determining what the Court compares, what it takes into account in its comparisons and what the Court is unwilling to compare. The analysis is based on five analytical topics, each dealt with in a separate chapter. The topics are taxpayers; income; rules; situations; and type of analysis (discrimination analysis or restriction analysis). The analysis also breaks down the cases into dealing with five typical problems, being 1) limitations of tax jurisdictions, 2) linked taxation, 3) cumulative burdens 4) disparities, and 5) neutralisation.The conclusion of the study is that the Court’s usually adopts a discrimination analysis aimed at establishing whether one Member State treats taxpayers in cross-border situations less favourably than taxpayers in purely domestic situations. However, the study also identifies three groups of cases where the Court’s reasoning is found to deviate in one way or more from its normal reasoning. In these cases, the Court is found to have compared two cross-border situations with each other, or to have taken into account different income and/or the effects of different rules than usual in its comparisons. In some of the deviating case law, the Court is also found to have used a restriction analysis, in the sense that it has found measures without distinction to amount to restrictions.