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Is BEPS Action 6 “Preventing Treaty abuse” compatible with the EU Law concept of abuse?

Juka, Amela LU (2016) HARN60 20161
Department of Business Law
Abstract
In September 2015, the OECD released the final report on BEPS action 6. The main purpose of the action 6 is the prevention of "granting treaty benefits in inappropriate circumstances". Regarding the prevention of treaty abuse the OECD presented three main recommendations. These actions are only proposals and therefore they constitute soft law. However with their implementation in the tax treaties and domestic law they will become hard law. Thus, the BEPS action 6 recommendations will have legal consequences in the taxpayer‘s cross-border activities and in the domestic legal system.

In the EU, Member States still have the competences to design their tax legislation. In addition they are free to conclude bilateral tax agreements with the... (More)
In September 2015, the OECD released the final report on BEPS action 6. The main purpose of the action 6 is the prevention of "granting treaty benefits in inappropriate circumstances". Regarding the prevention of treaty abuse the OECD presented three main recommendations. These actions are only proposals and therefore they constitute soft law. However with their implementation in the tax treaties and domestic law they will become hard law. Thus, the BEPS action 6 recommendations will have legal consequences in the taxpayer‘s cross-border activities and in the domestic legal system.

In the EU, Member States still have the competences to design their tax legislation. In addition they are free to conclude bilateral tax agreements with the aim to avoid double taxation. However, under the principle of ―sincere cooperation these competences have to be exercised in line with the EU Law. Consequently the Member States of the EU have the obligation to take EU law into consideration when implementing the proposed measures under the OECD BEPS action 6.

Therefore, the question of the conformity of the BEPS action 6 proposals with the EU law gives rise. In this context, the master thesis topic is focused in the examination of the proposals and their compatibility with the EU law.

As the proposed recommendations concern anti –abuse rules which could give rise to restriction of the fundamental freedoms the CJEU states that it is possible to be justified on the basis of tax avoidance. It is concluded that the EU law concept of abuse constitutes a benchmark regarding the situations where application of the anti-abuse rules by the MS is allowed.

Thus, a confrontation of the concept of abuse under the proposed anti-abuse rules and the one under the settled CJEU case law takes place. Further, the thesis makes also a comparison with the abuse concept found in the anti -abuse rules of the EU secondary law. However, it is concluded that MS cannot directly rely on the anti-abuse rules under the EU Tax Directive.

Finally, the author concludes that the proposed anti –abuse rules are not in line with the EU law concept of abuse as they do not target only "wholly artificial arrangement"s. Thus, the restriction would be not justified under the ground of tax avoidance. In this context, Member States of EU have to be careful in the implementation of the proposals by limiting their application only to abusive practices accepted by the CJEU. (Less)
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author
Juka, Amela LU
supervisor
organization
course
HARN60 20161
year
type
H1 - Master's Degree (One Year)
subject
keywords
Treaty shopping, Treaty abuse, Anti-abuse rules, Double non-taxation, CJEU, LOB Clause, PPT rule, "wholly artificial arrangements", GAAR, BEPS, BEPS action 6, OECD, EU Fundamental Freedoms, EU law
language
English
id
8880181
date added to LUP
2016-06-15 10:37:08
date last changed
2016-06-15 10:37:08
@misc{8880181,
  abstract     = {In September 2015, the OECD released the final report on BEPS action 6. The main purpose of the action 6 is the prevention of "granting treaty benefits in inappropriate circumstances". Regarding the prevention of treaty abuse the OECD presented three main recommendations. These actions are only proposals and therefore they constitute soft law. However with their implementation in the tax treaties and domestic law they will become hard law. Thus, the BEPS action 6 recommendations will have legal consequences in the taxpayer‘s cross-border activities and in the domestic legal system.

In the EU, Member States still have the competences to design their tax legislation. In addition they are free to conclude bilateral tax agreements with the aim to avoid double taxation. However, under the principle of ―sincere cooperation these competences have to be exercised in line with the EU Law. Consequently the Member States of the EU have the obligation to take EU law into consideration when implementing the proposed measures under the OECD BEPS action 6. 

Therefore, the question of the conformity of the BEPS action 6 proposals with the EU law gives rise. In this context, the master thesis topic is focused in the examination of the proposals and their compatibility with the EU law.

As the proposed recommendations concern anti –abuse rules which could give rise to restriction of the fundamental freedoms the CJEU states that it is possible to be justified on the basis of tax avoidance. It is concluded that the EU law concept of abuse constitutes a benchmark regarding the situations where application of the anti-abuse rules by the MS is allowed. 

Thus, a confrontation of the concept of abuse under the proposed anti-abuse rules and the one under the settled CJEU case law takes place. Further, the thesis makes also a comparison with the abuse concept found in the anti -abuse rules of the EU secondary law. However, it is concluded that MS cannot directly rely on the anti-abuse rules under the EU Tax Directive. 

Finally, the author concludes that the proposed anti –abuse rules are not in line with the EU law concept of abuse as they do not target only "wholly artificial arrangement"s. Thus, the restriction would be not justified under the ground of tax avoidance. In this context, Member States of EU have to be careful in the implementation of the proposals by limiting their application only to abusive practices accepted by the CJEU.},
  author       = {Juka, Amela},
  keyword      = {Treaty shopping,Treaty abuse,Anti-abuse rules,Double non-taxation,CJEU,LOB Clause,PPT rule,"wholly artificial arrangements",GAAR,BEPS,BEPS action 6,OECD,EU Fundamental Freedoms,EU law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Is BEPS Action 6 “Preventing Treaty abuse” compatible with the EU Law concept of abuse?},
  year         = {2016},
}