CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 in N Luxembourg I et al. (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) and T Danmark et al. (Joined Cases C-116/16 and C-117/17), Concerning the “Beneficial Ownership” Requirement and the Anti-Abuse Principle in the Company Tax Directives

CFE Tax Advisers Europe acknowledges that the “Danish beneficial ownership cases” address a number of important and timely issues, especially with regard to the concept of abuse under EU law. These include: (i) the expansion of the general anti-abuse principle enshrined in EU law to areas of tax law that are subject to minimal harmonization; (ii) the use of OECD materials to define the beneficial ownership concept; (iii) the conflation of the beneficial ownership concept with the general anti-abuse principle and the Court’s attempt to give the notion of “abuse” workable contours; and (iv) the reading of an effective subject-to-tax clause with regard to interest income into the definition of “company” laid down in the EU Interest and Royalties-Directive (2003/49) (IRD).
CFE Tax Advisers Europe, however, also expects that domestic courts will likely struggle to translate the abstract guidance of the “Danish beneficial ownership cases” into concrete decisions, that practitioners and academics alike will have to discuss building blocks and nuances of the Grand Chamber’s decisions for quite some time, and that consideration needs to be given to the impact of the cases on current tax structures.