A Theory of Tax Discrimination

NYU Jean Monnet Working Paper No. 09/06

61 Pages Posted: 9 Apr 2007 Last revised: 29 Aug 2008

See all articles by Ruth Mason

Ruth Mason

University of Virginia School of Law

Date Written: 2006


The fundamental freedoms of the EC Treaty prohibit tax discrimination - harsher tax treatment of cross-border economic activities than purely internal activities. Critics of the ECJ argue that the Court's broad interpretation of the EC freedoms causes it to find tax discrimination where there is none. This tendency encroaches upon the sovereignty of EU member states and hampers their ability to pursue economic policy goals. This Article shows that, contrary to the claims of the Court's critics, the ECJ's errors in tax discrimination cases go in both directions: in addition to finding discrimination where there is none, the Court also sometimes fails to recognize discrimination. The Court's failure to recognize tax discrimination undermines the economic integration of Europe and abridges EU nationals' personal rights.

Keywords: tax discrimination, European Union, United States, European Court of Justice, Supreme Court, international tax

JEL Classification: F15, H20, H24, H70, H77, K34, K35, P52

Suggested Citation

Mason, Ruth, A Theory of Tax Discrimination (2006). NYU Jean Monnet Working Paper No. 09/06, Available at SSRN: https://ssrn.com/abstract=978880 or http://dx.doi.org/10.2139/ssrn.978880

Ruth Mason (Contact Author)

University of Virginia School of Law ( email )

United States

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