Noah Zimmermann: Nichtdiskriminierende Beschränkungen der Grundfreiheiten, Gebunden

Klappentext

Since its judgment in Dassonville , the Court of Justice of the European Union (CJEU) has recognized that the EU fundamental freedoms possess not only an equality-based dimension but also a freedom-based dimension. Yet it remains largely unsettled under what conditions a non-discriminatory restriction of the fundamental freedoms exists. Moreover, the freedom-based dimension has thus far played virtually no role in tax law, despite the fact that taxation is, in practice, one of the most important areas in which the fundamental freedoms apply.

Against this background, Noah Zimmermann explains why interpreting the fundamental freedoms as rights of freedom is persuasive. He then examines the circumstances under which a non-discriminatory restriction may be found. In the context of the freedom-based dimension, the CJEU convincingly focuses on whether market access is affected. However, it is unpersuasive that the Court has not further specified the highly vague market-access criterion, leading in some cases to entirely unforeseeable outcomes. The study therefore proposes a more concrete approach: a non-discriminatory restriction should be assumed only where a measure either expressly regulates market access or effectively blocks access to the market in practice. In both situations, the measure is closely connected to market access, either because it directly regulates access as a matter of law or because it has a particularly significant practical impact on access.

Applied to specific examples from tax law, this proposed approach leads to the conclusion that the levying of income taxes as such does not constitute a non-discriminatory restriction, since it does not block market access. Accordingly, non-discriminatory tax provisions only exceptionally amount to a restriction of the fundamental freedoms.