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Den svenska skatteflyktslagen och förfarandemissbruk inom EG-rätten - En komparativ studie

Kuosmanen, Maria (2007)
Department of Law
Abstract
The Community law has supremacy to national law. Therefore, the fundamental rights conferred by the EC Treaty usually take precedence over the national legislation of Member States. That is to say, if they cannot be justified on some of the justification grounds established by the settled case-law of the ECJ. In spite of the supremacy of the EC law, Member States have maintained their authority in some specific spheres of law. One of these is the power of taxation. However, Member States have to exercise their authority consistently with the Community law irrespective of the fact that direct taxation falls outside their authority. This principle was established in the case Avoir fiscal. The recent case-law of the ECJ, however, shows that... (More)
The Community law has supremacy to national law. Therefore, the fundamental rights conferred by the EC Treaty usually take precedence over the national legislation of Member States. That is to say, if they cannot be justified on some of the justification grounds established by the settled case-law of the ECJ. In spite of the supremacy of the EC law, Member States have maintained their authority in some specific spheres of law. One of these is the power of taxation. However, Member States have to exercise their authority consistently with the Community law irrespective of the fact that direct taxation falls outside their authority. This principle was established in the case Avoir fiscal. The recent case-law of the ECJ, however, shows that the fundamental rights in some cases can loose their supremacy. In the case Marks &amp&semic Spencer, the risk for tax avoidance was approved together with the two other justification grounds. Since Member States have the exclusive right to impose taxes within the sphere of direct taxation, judgements of the national high courts still have the same precedential effect as earlier. Therefore, it is interesting to examine which prospects EC law offers to Member States, in this case Sweden, to adhere to the national tax regime. As regards the indirect taxes, they are harmonized to a great extent by the Sixth Directive and the Horizontal Directive. This implies that Member States are obliged to follow judgements of the ECJ in this field. In order to guarantee the legal rights of the individual, it is important to investigate which measures are regarded as law abuse according to Community law, by analysing the definition of law abuse which was stipulated in case Halifax. The examination has been carried through by comparing the Swedish tax evasion law and EC tax law. As regards EC tax law I have been studying the recent case-law and analysed how the development of the definition of law abuse has been established by the ECJ. The cases I have analysed are Marks &amp&semic Spencer, Halifax, Cadbury Schweppes, the Man in Black and Joustra. (Less)
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author
Kuosmanen, Maria
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EG-rätt, Skatterätt
language
Swedish
id
1559272
date added to LUP
2010-03-08 15:55:23
date last changed
2010-03-08 15:55:23
@misc{1559272,
  abstract     = {{The Community law has supremacy to national law. Therefore, the fundamental rights conferred by the EC Treaty usually take precedence over the national legislation of Member States. That is to say, if they cannot be justified on some of the justification grounds established by the settled case-law of the ECJ. In spite of the supremacy of the EC law, Member States have maintained their authority in some specific spheres of law. One of these is the power of taxation. However, Member States have to exercise their authority consistently with the Community law irrespective of the fact that direct taxation falls outside their authority. This principle was established in the case Avoir fiscal. The recent case-law of the ECJ, however, shows that the fundamental rights in some cases can loose their supremacy. In the case Marks &amp&semic Spencer, the risk for tax avoidance was approved together with the two other justification grounds. Since Member States have the exclusive right to impose taxes within the sphere of direct taxation, judgements of the national high courts still have the same precedential effect as earlier. Therefore, it is interesting to examine which prospects EC law offers to Member States, in this case Sweden, to adhere to the national tax regime. As regards the indirect taxes, they are harmonized to a great extent by the Sixth Directive and the Horizontal Directive. This implies that Member States are obliged to follow judgements of the ECJ in this field. In order to guarantee the legal rights of the individual, it is important to investigate which measures are regarded as law abuse according to Community law, by analysing the definition of law abuse which was stipulated in case Halifax. The examination has been carried through by comparing the Swedish tax evasion law and EC tax law. As regards EC tax law I have been studying the recent case-law and analysed how the development of the definition of law abuse has been established by the ECJ. The cases I have analysed are Marks &amp&semic Spencer, Halifax, Cadbury Schweppes, the Man in Black and Joustra.}},
  author       = {{Kuosmanen, Maria}},
  language     = {{swe}},
  note         = {{Student Paper}},
  title        = {{Den svenska skatteflyktslagen och förfarandemissbruk inom EG-rätten - En komparativ studie}},
  year         = {{2007}},
}