Cohesion of the national tax system : An analysis from a legal certainty perspective

Sammanfattning: Direct taxation is an area which has not been harmonized entirely within the European Community. Nevertheless, the ECJ has in its case law stated that even though direct taxation falls within the competence of the Member States, they may not exercise that competence by breaching EC law. At the same time the EC Treaty provides certain exceptions in the form of justifications for national measures resulting in such breach of EC Law. The justification grounds provided by the EC Treaty are, however, limited and general and not suitable for justifying tax measures. That is why the rule of reason has played such an important role within the area of direct taxation. The rule of reason made it possible to in-voke justification grounds that were not expressly mentioned in the EC Treaty. Since the list of justifying grounds, not provided by the EC Treaty, is open-ended, Member States have been invoking several different justifying grounds which were suitable for tax measures. One of those justification grounds which has been used the most is the preservation of the cohesion of the national tax system. The first time the cohesion of a national tax system was brought forward as a justifying reason for a restrictive measure was in the Bachmann case. There the ECJ held that the Belgian legislation could be justified on the ground of the cohesion of the national tax system. However, the ECJ has been applying the cohesion justification very restrictively and never accepted it as a valid justification ground after the Bachmann case. What the ECJ has done in subsequent cases is to develop the meaning of the principle and adding new criteria which must be fulfilled in order for the cohesion justification to be successfully invoked. However, during this course the ECJ has been very unclear and inconsistent, harming legal certainty, which taxpayers are supposed to expect. Even in the doctrine, authors have been questioning the validity of the cohesion justification due to the ECJ’s reluctance to accept it again. In connection with recent case law concerning cross-border dividend taxation, voices have been heard, demanding the ECJ to address the cohesion justification once more in order to set out clear boundaries for its application and to disperse the current legal uncer-tainty regarding the matter. As a consequence the aim of this paper is to analyze the appli-cation of the cohesion justification to cross-border dividend situations from a legal certainty perspective. As becomes clear from analyzing recent cross-border dividend cases, the ECJ seems to have departed from earlier established criteria and a new line of thought seems to direct the development towards the introduction and application of new criteria. Conclusively, we have found that the application of the cohesion justification by the ECJ has been very inconsistent and that this inconsistency has led to a considerable degree of legal uncertainty, making it difficult to predict the outcomes of future cases. Therefore, we conclude that the ECJ should take the opportunity, which has presented itself in recent cases concerning cross-border dividend taxation, to clarify the cohesion justification and set out clear definitions for how to apply it.