A new aspect of the competences of the CJEU in the field of direct taxation: case Austria v. Germany of 12 September2017 (C-648/15)

• Author: Philippe Marchessou
• Pages: 226-230

Studi Tributari Europei 1/2017

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A new aspect of the competences of the CJEU in the field of

direct taxation: case Austria v. Germany of 12 September2017

(C-648/15)*

Philippe Marchessou1

According to article 273 TFUE a litigation related to the interpretation of a

bilateral treaty against double taxation of revenues is connected to the

object of the European Treaties and, hence, it can be subjected to the Court

by virtue of a clause that attributes to the latter the solution of

interpretative issues arising from the Convention.

The principles that govern international and european tax law in the field of

direct taxation have been ably traced by the case law of the Court of

Justice. In the four hundred cases adopted since 1992, the Court has

outlined and justified its role, bearing in mind that, if direct taxation is

competence of the member States, they exercise it in compliance with the

freedoms provided for by the Treaty. Relying on the second affirmation, the

Court has been capable of imposing, through negative integration, to the

member States a corpus related to their domain of competence: non-

discrimination, free movement of workers, freedom of establishment, free

movement of services and european citizenship have permitted to qualify

prohibited national law as incompatible. In such evolutive context, the case

of 12 September 2017, represents a new step. The case has been adopted

on the basis of article 273 TFUE, that finds in this decision its first

application not only in the fiscal field. The text provides that “the Court is

competent to adopt decisions on all the controversies connected with the

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* How to quote this article: F. MARCHESSOU, A new aspect of the competences of the CJEU in

the field of direct taxation: case Austria v. Germany of 12 September 2017, translated by

ALESSIA FIDELANGELI, University of Bologna, in Studi Tributari Europei, n. 1/2017 (ste.unibo.it),

pp 226-230, DOI:!10.6092/issn.2036-3583/8777.

1Philippe Marchessou, Full Professor in Tax Law at the University of Strasbourg!