Case Law Trend: Withholding Taxation Under the Fundamental Freedoms

Abstract

This paper critically analyses recent developments in the CJEU’s case law regarding withholding taxes (WHT) and the constraints that fundamental freedoms impose on Member States in this area. It argues that both resident and non-resident taxpayers are universally comparable from a source state perspective, regardless of whether a double tax treaty (DTT) precludes a specific form of domestic taxation in the source state. Furthermore, it asserts that the net taxation obligation should be accessible not only as an ex-post refund but also as an ex-ante option for nonresident taxpayers to file a tax return under the same conditions as resident taxpayers.

Keywords: EU tax law, withholding tax, fundamental freedoms