European Taxation – How successful are the institutions of the European Community in ensuring the smooth functioning of direct taxation in the European Internal Market? by John Marcarian

Summary An appropriate place to commence a discussion of this question is in the picturesque town of Verona. The reason might perplex even the most avid European tax historian though the answer is relatively simple. In April 1996, unbeknownst to many of Verona’s inhabitants a crucial gathering of the ECONFIN took place. At that meeting the European Commission identified three main challenges for the EU. These were:

the stabilization of Member States tax revenues; the smooth functioning of the Internal Market; and promoting employment;

It is the aim of this article to comment on the second of the above points and to examine how the EU Institutions play a role in the smooth functioning of the Internal Market and how effective they are in meeting this objective. This article will consider the objective of the ‘smooth functioning of the Internal Market’ with a focus on direct taxation. It will then consider the concepts of the ‘Internal Market’ and ‘smooth functioning’. At that point the article will present a review of the primacy of EU law and the function of each of the EUI’s in pursuing the objective of the smooth functioning of the Internal Market. It is the author’s view that the EUI’s are not functioning effectively in the ‘smooth functioning’ objective. This view will be supported by reference to the following points:

Smooth functioning problems identified by the Commission; Uncertainty surrounding the current approach of the European Court of Justice; The push for a common consolidated tax base; The absence of an EU Constitution; State aid and Double Tax Agreements; Calls for an EU Model Agreement;

The conclusion of this article is that there are a number of serious problems that exist in the New Tax Order of Europe in relation to direct taxation. Furthermore unless there is a ‘seismic shift’ in the attitudes of both European citizens and the EUI’s then the attainment of the 1996 objective of “smooth functioning of the Internal Market” will not be achieved in the foreseeable future. The ‘Internal market’ and ‘smooth functioning’ Prior to considering the term ‘Internal Market’ let us note that the term ‘common market’ is used in Article 2 of the ECT. Furthermore a review of that Article will disclose that a ‘common market’ is required to be established by the Community. The term ‘Internal Market’ first appears in Article 3(c) of the ECT. The term is not however defined in the ECT. It is therefore curious that the term ‘common market’ was not the term used in Article 3 of the ECT and instead the term ‘Internal Market’ was used. The author’s view is that those who read the ECT are meant to view the term ‘common market’ and ‘internal market’ as interchangeable though the question of the exact relationship between the two terms is left unanswered. Article 3(c) of the ECT states that the Internal Market should be “characterized by the abolition between Member states of obstacles to the free movement of goods, persons, services and capital.” The intention of the words “abolition…of obstacles” is clear enough. It sets as the objective of the EUI’s the abolition of obstacles to the fundamental freedoms to ensure a ‘smooth functioning’ of the Internal Market. It is also noted that Article 14(1) of the ECT imposes on the Community (through the EUI’s) the legal obligation to progressively establish the Internal Market. The theory can therefore be advanced that the ECT recognises that the smooth functioning objective will take some time to achieve. Each of the EUI’s are required to play a role in achieving the objective set out in Article 3(c) of the ECT as they are part of the Community apparatus. Primacy of EU Law Community law has a different structure from that of both national tax systems of the EU Member States and international treaties. The primacy of EU law is reflected in the following quote:-

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