PECHO P. ET VAN WAEYENBERGE A. « Fiscal Consequences of Cross-border Residence and Company Seat Transfers within the EU », Liber Amicorum, J. Klucka, 2021, 25 pages (sous presse).
Abstract
The European Union Treaties foresee the creation of an internal market that
benefits not only companies, but also individuals. One of the main rights offered by the free movement of citizens, workers, services, capital and by the freedom of establishment is the possibility for natural and legal persons to move from one Member State to another. However, these freedoms are not absolute. Not only does the Treaty on the Functioning of the European Union provide for several exceptions, but the jurisprudence of the Court of Justice of the European Union (CJEU) allows that, under certain conditions, overriding reasons in public interest can justify restrictions on them. One of these overriding reasons is the need to safeguard the balanced allocation of powers to impose taxes between Member States, in accordance with the principle of territoriality. In fact, in the absence of any unifying or harmonising measures of the European Union (EU), the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation. In many cases, these internal legislations assimilate the expatriation of taxpayers to the realisation of profits or the sale of property, or they impose similar fiscal charges, commonly called exit taxes. This can lead to a paradoxical result, that despite the conferral of the freedoms of circulation on the taxpayers, the effective use of these freedoms is accompanied by a less favourable treatment compared to the one they would be subject to had they remained in their Member State of origin. In the absence of any unification or harmonisation at the EU level, the conciliation of the internal market freedoms and the fiscal competence of the Member States was ensured by the CJEU. Its initially internal market-oriented case-law has in the meantime become more focused on the Member States’ fiscal competence. Later on, by adopting the Anti-Tax Avoidance Directive, the EU legislator has defined, in the field of companies, harmonised rules on exit taxation, which are inspired by the later CJEU’s jurisprudence, but do not constitute a simple codification of it. However, in the light of the potential impact of exit taxes on the freedoms of movement, and hence on the possibility of individuals and companies to move and pursue their activities freely within the EU, the question remains whether a certain sacrifice from the Member States’ fiscal competence in favour of a less restrictive cross-border regime could allow for a hidden potential of the European integration to mobilise and thus, to enhance economic activity, with the result of even higher fiscal revenues for the Member States, than under the present state of law
