Size Matters: Discriminatory Intent and Discriminatory Impact in EU Law

Posted: 11 Jan 2019

See all articles by Ruth Mason

Ruth Mason

University of Virginia School of Law

Leopoldo Parada

University of Turin - Department of Management

Date Written: December 31, 2018

Abstract

This Article explores whether classifications based on company size constitute covert nationality discrimination that violates EU law.

We use company-size classifications to explore the role of disproportionate impact and legislative intent in judicial review of Member State laws for nationality discrimination. Our discussion of disproportionate impact is mostly descriptive—we explore how the Court has resolved questions of quantum and proof in the cases. Our discussion of intent is mostly normative—we argue, contrary to current doctrine, that courts should consider the legislature’s intentions as probative, but not dispositive, of discrimination.

We chose company size for two reasons. First, discussion of company size as covert nationality discrimination is new to the literature. Second, Member States increasingly use company-size classifications in tax laws; Poland and Hungary recently used turnover (as opposed to net income) to determine tax rates; and several states propose to use turnover to establish liability for digital services taxes.

Keywords: EU law, digital services tax, disproportionate impact, company size, discriminatory intent

JEL Classification: K34

Suggested Citation

Mason, Ruth and Parada, Leopoldo, Size Matters: Discriminatory Intent and Discriminatory Impact in EU Law (December 31, 2018). Available at SSRN: https://ssrn.com/abstract=3308539 or http://dx.doi.org/10.2139/ssrn.3308539

Ruth Mason (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Leopoldo Parada

University of Turin - Department of Management ( email )

C.so Unione Sovietica, 218 bis
Turin, Turin 10100
Italy

HOME PAGE: http://www.buss-man.unito.it/do/docenti.pl/Alias?leopoldoeduardo.paradapino#profilo

Register to save articles to
your library

Register

Paper statistics

Abstract Views
810
PlumX Metrics