The Legality of Digital Taxes in Europe

Abstract

This Essay argues that EU taxpayers may challenge digital services taxes as violations of EU law. Specifically, because they exempt all but the very largest companies, which are disproportionately foreign, DSTs result in nationality discrimination as applied. As part of our analysis of the legality of digital taxes, we consider what role discriminatory intent should play in resolving nationality discrimination cases. We also evaluate potential justifications for digital taxes, and we argue that two recent decisions by the Court of Justice of the European Union suggest that the Court will uphold such taxes against challenges by taxpayers.

Keywords: digital taxes; indirect discrimination; EU law; legality; fundamental freedoms; Vodafone; Tesco

JEL Classification: K34