EU power to tax: Competences in the area of direct taxation

In this chapter, Georg Kofler examines the EU's power to regulate taxation, in light of its competences under direct tax law. It is shown that, subject to the principles of subsidiarity and proportionality, the Union seems to have broad theoretical power for internal harmonization measures in the direct tax area insofar as is necessary for the establishment and the functioning of the internal market. That internal market is historically viewed both through the lens of freedoms rights with the aim of removing tax distortions and through the lens of practices of tax evasion and tax avoidance with the aim of making the system more robust and resilient to aggressive tax planning. The author argues that (future) internal harmonization can lead to the emergence of external treatymaking powers of the Union which may even become an exclusive competence and have (yet largely unexplored) impact on the Member States' bilateral tax treaties with third countries. He concludes that in both the internal and the external sphere, the progress and limits of Union action are, however, not just questions with regard to the existence of competence (lack of which can be scrutinized by the Court of Justice), but largely political ones because of the unanimity requirement.