EU-rättslig praxis i förändring: En kritisk granskning av påverkan av fri rörlighet för kapital på direkt beskattning på medlemsstatsnivå

Sammanfattning: The purpose of this essay is to critically review how decisions from the CJEU concerning the legal provisions regarding free movement of capital in article 63 of the TFEU has affected EU members states systems of direct taxation. Changes in relevant case law from the last 20 years is presented and the effects that these changes have had on the abilities of member states to shape direct taxation on a national level will be analysed. The evolution in case law is illustrated by three cases from the CJEU. These cases represent extremes in the evolution in case law of the application of the legal provisions regarding free movement of capital. The case of C-319/02, Manninen, represents the peak of willingness of the CJEU to define member state procedures in direct taxation as restriction on the free movement of capital. The courted decided in a later case, C-35/11, Test Claimants, that free movement of capital can be infringed upon the basis of sustaining internal member state tax sovereignty. This amounts to a sharp deviation from earlier case law and a return of member state sovereignty to a prominent position in tax questions. In new case law, C-480/16, Fidelity Funds, the evolution of case law takes yet another turn. This change is more related to the case law established in Manninen, ergo, a return to earlier case law. The changing nature of case law contributes to uncertainty for the member states. Moreover, the legal boundaries of the term “restrictions” in the legal provisions regarding free movement of capital are not clearly defined. These two elements of uncertainty are potential contributors to a lack of predictability for member states when it comes to the shaping of future direct taxation on cross-boundary incomes.