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Time and place for the trial lecture
Adjudication committee
- Professor Mads Andenæs, University of Oslo (leader)
- Dr. Maren Heidemann, The London Centre for Commercial and Financial Law (1. opponent)
- Professor Cécile Brokelind, Lunds University (2. opponent)
Chair of defence
Dean Ragnhild Hennum
Supervisors
- Professor Christoffer C. Eriksen
- Professor Yvette Lind
Summary
This doctoral thesis explores EU tax law and how it works. The main focus is on how EU countries can counter tax avoidance through national legislation balanced against the protection of taxpayers (companies) under the four freedoms. It looks specifically at something called "hybrid mismatch rules," which are rules designed to stop companies from avoiding taxes by exploiting differences in tax systems between countries.
This thesis analyses whether EU countries can enact such rules, and whether the prohibition against restrictions and discrimination can be invoked as protection by corporate taxpayers. It provides new insights into whether the hybrid mismatch rules combat tax avoidance, EU and Member States' abilities to legislate in this area, and the limits of protection under the four freedoms.
Key research questions
The thesis raise three central questions. The first is the extent of the EU's legislative powers, analysing the nuances and the extent to which hybrid mismatch rules contribute to the functioning of the internal market. The second questions whether the general principle of abuse allows for the enactment of such rules by excluding protection under the four freedoms for corporate taxpayers. The third assesses whether the discrimination test, as per the CJEU's jurisprudence, implies discrimination against multinational enterprises.
This test consists of the conditions that CJEU case law determine for the assessment of whether a taxpayer is subjected to discrimination under national laws. This assessment is based on a thorough examination of many CJEU cases in the area of direct taxation, to determine the correct method for assessment.
Key findings
1. Challenges to legislative powers: The thesis questions EU's legislative authority, highlighting how hybrid mismatch rules may influence, or conversely, not influence the dynamics of the internal market.
2. Scrutiny of the abuse exception: By analysing the abuse exception, the research shows that this principle doesn't entirely exclude hybrid mismatch rules from scrutiny under the four freedoms.
3. Taxpayers' protective shield: By examining freedom of movement (protection against discrimination) for taxpayers affected by hybrid mismatch rules, the study elucidates the nuanced interaction between these fundamental freedoms and the ability to enact rules to prevent tax avoidance. The thesis particularly focuses on whether hybrids indeed lead taxpayers to avoid tax laws and to what extent the four freedoms protect taxpayers when they do so.
Academic contribution
This scholarly work substantially contributes to the analysis of CJEU jurisprudence under the four freedoms, focusing on the freedom of establishment and free movement of capital. The findings establish boundaries for national tax laws for both EU and EEA countries, while outlining how the fundamental freedoms safeguard the rights and interests of multinational enterprises.
Conclusion
"Hybrid Mismatch Rules and Primary EU Law" is a scholarly narrative that delves into EU tax law, examines established norms, and emphasizes the importance of balancing the right to freedom of movement for companies with Member States' right to protect themselves against tax avoidance from these taxpayers.