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Roland Ismer

The Court of Justice of the European Union has developed a long-standing case law on the prohibition of abuse. The present contribution first briefly recapitulates the case law of the Court of Justice, both for VAT and for direct taxes. It then moves on to the implications of that case law. It will argue that the prohibition of abuse will most likely have a very limited field of application. Moreover, it will stress the importance of teleological reasoning for the determination of abuse. It will also point out that the risk of overshooting needs to be addressed, so that the finding of abuse does not lead to higher taxes than in a no-abuse situation. Finally, the contribution will discuss whether there is a single right answer to the question when it comes to ascertaining abuse or whether Member States can be given some leeway.

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Roland Ismer and Sophia Piotrowski

In this chapter, Roland Ismer and Sophie Piotrowski explore the relationship between fiscal State aid and the fundamental freedoms. Both are fundamental principles that underpin the internal market which is at the core of the EU. Both prohibit discriminatory practices by Member States. The authors describe the conditions and criteria applied in the context of each discrimination rule and argue that they are, in fact, subject to limited metaconvergence: even where the principles underlying each rule appear the same, such as the principle of nondiscrimination or the principle of proportionality, their concrete meaning is subtly different under the fundamental freedoms, on the one hand, and State aid law, on the other. The authors analyse the question of a potential hierarchical order between the two. After a thorough discussion of existing case law and literature, they argue that fundamental freedoms ought to prevail in the majority of cases, where their application resolves the discrimination at issue. At the same time, State aid rules often take precedence before national courts. Concluding their analysis, the authors then point towards key differences in the procedure of enforcing both sets of rules.