ATOZ Briefing - Anti-abuse legislation in an EU context

Briefing 28032019

Anti-abuse legislation in an EU context: Lessons learned from the CJEU

Over the last decade, many European Member States implemented different types of anti-abuse rules such as anti-Directive/anti-Treaty shopping rules, controlled foreign company (CFC) rules or general anti-abuse rules (GAAR) in order to tackle perceived tax avoidance. Likewise, tax treaties concluded between EU Member States may include anti-abuse provisions such as the beneficial ownership concept or the Principal Purposes Test (PPT) that has been developed throughout the OECD BEPS Project.

All these rules have in common that in an EU context they have to be consistent with EU Law as interpreted by the Court of Justice of the European Union (“CJEU”). In its recent decisions, the CJEU has been very restrictive when it comes to anti-abuse rules. This briefing aims at providing participants with an overview of relevant case law and its impact on the scope and interpretation of anti-abuse legislation in the EU.

Our agenda will include:

1. Background

2. Relevant anti-abuse rules
Anti-Directive/anti-treaty shopping rules, controlled foreign company (CFC) rules, general anti-abuse rule (GAAR), principal purpose test (PPT) in tax treaties,
the beneficial ownership concept

3. Analysing relevant CJEU case law
Eqiom SAS/Enka SA (Case C-6/16), Deister Holding AG (Case C-504/16),
Juhler Holding A/S (Case C-613/16), GS (Case C-440/17), Decision on Danish cases

4. The wholly artificial arrangement doctrine

5. The way forward

ATOZ Speaker