THE ROLE OF COURT OF JUSTICE WITHIN THE EU TAXATION LAW

Key words: EU taxaion, functions Court of justice of EU, role of CJEU in EU taxation, creative jurisprudence Introduction The “European tax law” is a set of regulations issued by the EU institutions and designed to provide the control of tax matters over the tax legislations of the Member States. However, the existence of EU rules aimed to regulate the procedures for taxation in the European Member States is not enough to identify an area of an independent and autonomous law. In fact, if the tendency to profile the EU law is developing in the recent times, in order to valorize the regulatory provisions of specific areas of the legal system (giving a meaning to the definition of “European private law” or “European administrative law” or even “European trial law”), it must be considered that the identification of an autonomous sector of law requires the logic of a “legal system”; it basically implies the existence of principles and juridical values and the dynamic relationships between the norms. Therefore, the existence of a set of general rules by EU institutions cannot be considered sufficient to identify a “European tax law”; if these rules compose a mere aggregate without a functional meaning, the element of the systematic unity would be lacking and there should not be an autonomous order of law. In any case, there are several elements which lead to identify an independent and autonomous sector of law in the set of EU norms regarding the taxation law. On the other hand, it must be noted that the fiscal discipline drawn up by the EU sharply drifts away from the developmental lines of the modern tax law. In fact, the whole of the European fiscal regulations essentially meets the logic of the market integration on the basis of the principles of the trading free competetion regardless of the nationality or the residence. Therefore, the tax system is free of its potential load of “obstruction” regarding the free movement of capitals, people, goods or services (the four freedoms of European tradition), in order to show up as a system of “neutral” rules compared to the market and the economic forces of a “free system”. There is a complete lack of the tradition of the European constitutional values which characterize the basic skills of the taxation phenomenon. Particularly, it can be observed as a lack of the “fiscal interest”, intended as the general interest of the associates to the acquisition of tax resources in order to facilitate the social development, the institutional progress, the growth of the Welfare State and the essential equality of all the members of the civil community. Likewise, there is no trace of a reference to the ability to pay, an inescapable principle of distribution of tax burdens among the associates in order to ensure the concrete pursuit of a logic of the national wealth redistribution, which is at the same time a measure of guarantee and a safeguard of the individual sphere from the public administration excesses operated for the tax burden.