Hybrida missmatchningar i ATAD 2 och dess implementering i svensk rätt - Förenligt med etableringsfriheten?

Sammanfattning: In an attempt to prevent tax evasion caused by tax planning through hybrid mismatches that lead to tax bases erosion in countries, the European Commission adopted the directive ATAD 2. Unlike ATAD 1, ATAD 2 aims at different payments, not just interest payments, and third countries, not just member states of the EU. ATAD 2 should have been implemented in member states national legislation on 31 January 2019, so it could enter into force on 1 January 2020. This essay explains the hybrid mismatches that articles 9 and 9b of ATAD 2 are about and how these should be solved. Furthermore, an investigation of how the articles have been implemented in swedish national law follows and whether the implementation is in line with EU primary law. The question to ask is whether the EU has produced a directive that is contrary to the freedom of establishment regarding older practice from the European Court of Justice. My conclusion is that Sweden may have missed significant concepts in the implementation and that the national law of Sweden already leads to discrimination of cross-border companies. With ATAD 2, the EU has given member states the power to tax things that are not taxed in a domestic situation, a discrimination that affects freedom of establishment.