Double Taxation: A European 'Switch in Time'?

36 Pages Posted: 13 Apr 2007 Last revised: 27 Feb 2013

See all articles by Georg Kofler

Georg Kofler

Johannes Kepler University; NYU School of Law

Ruth Mason

University of Virginia School of Law


This article considers whether the fundamental freedoms of the EC Treaty encompass an absolute requirement on the Member States to mitigate double taxation, and it concludes that such a requirement could reasonably be inferred from the goals of the fundamental freedoms and the European Court of Justice's "double burden" jurisprudence. Notwithstanding the reasonableness of that interpretation, in the recent Kerckhaert & Morres case, the Court of Justice seems to have held that juridical taxation does not violate the EC Treaty, even though double taxation distorts the Internal Market. We review the history of the Court's relevant jurisprudence, consider whether the Court has left any room for future rulings proscribing juridical double tax, and compare the treatment of double state taxation in the United States by the Supreme Court under the dormant Commerce Clause.

Keywords: ECJ, European Court of Justice, tax discrimination, double taxation, EC Treaty, double burdens, mutual recognition, Kerckhaert, Moorman, Container Corporation, Supreme Court, Commerce Clause, apportionment, Bibb, internal market, common market, freedom of movement, double tax treaties, DTC, imputati

JEL Classification: H20, H25, H70, H71, H73, H77, H87, K34, F02, F15

Suggested Citation

Kofler, Georg and Mason, Ruth, Double Taxation: A European 'Switch in Time'?. Columbia Journal of European Law, Vol. 14, No. 1, 2007, Available at SSRN:

Georg Kofler (Contact Author)

Johannes Kepler University ( email )


NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Ruth Mason

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics