with a view to securing for the benefit of their nationals.. .the abolition of double
taxation within the Community. Double taxation treaties seek to avoid or minimise
such double taxation, typically by providing for an exemption or tax credit in respect
of tax paid in the other contracting State. The ECJ has consistently held that while
Member States are free to allocate their powers of taxation bilaterally they are bound
by the EC Treaty freedoms when exercising those taxation powers.30
The study Company Taxation in the Internal Market identified the area of double
taxation treaties as a potential source of obstacles and distortions for cross-border
economic activities within the EU.31 In view of this, the Commission intends,
following technical discussions with the Member States, to come forward with a
communication on the need to adapt certain provisions of double taxation conventions
based on the OECD model to comply with Treaty principles.
One particular concern which has come to the fore recently concerns provisions in
treaties which favour residents of one country over others. In the context of the EU,
the adoption of the ‘most-favoured nation’ doctrine would mean that residents of a
particular Member State should be able to avail themselves of tax advantages agreed
between two other Member States with regard to their residents.
The ECJ has recently been called upon to determine whether favourable provisions in
a tax treaty between two Member States which are not extended to persons in a third
Member State may be seen as a form of discrimination between non-residents.
Normally only residents of the Contracting States to a tax treaty are covered by the
provisions of the tax treaty. The ECJ ruling on the Saint Gobain case however placed
branches of non-resident companies on the same footing as resident subsidiaries as
regards tax treaty benefits.
While the D case involved an individual and was not directly related therefore to
corporation tax matters, it is nonetheless relevant to the present discussion in that it
raised the “most favoured nation” doctrine.32 The Commission and the governments
which submitted observations (clearly alarmed at the prospect of having to dismantle
a whole plethora of bilateral tax treaties) argued that a Member State party to a
bilateral convention was not in any way required, by virtue of the EC Treaty, to
extend to all Community residents the benefits which it grants to residents of the
Contracting Member State. They referred to the danger which the extension of the
benefits provided for by a bilateral convention to all Community residents would
entail for the application of existing bilateral conventions, and of those which the
Member States might be prompted to conclude in the future, and to the legal
uncertainty which that extension would cause. To their relief, the Court concluded
that the fact that the reciprocal rights and obligations in the Netherlands-Belgium tax
treaty applied only to persons resident in one of the two Contracting Member States
was “an inherent consequence of bilateral double taxation conventions”.
The general thrust of ECJ decisions in this area appears then to be that double taxation
treaties are not under threat, though the question remains as to whether the ECJ will
30 See, for example, Gilly (Case C-336/96).
31 SEC (2001) 1681
32 D v Rijksbelastingdienst (Case C-376/03).
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