The Uneasy Case and Fate of Article 293 Second Indent EC

Abstract:
The abolition of double taxation is a main principle of the European Union (EU) and its internal market. However, that does not make it an inclusive and hard legal principle. As double taxation is a main tax obstacle and restriction of the free economic movement in the internal market, its abolition is also a main objective of fundamental freedoms as they are interpreted by the European Court of Justice (ECJ). However, this interpretation also points to important limitations and does not cover double tax burdens.

Article 293 second indent European Community (EC) is the only provision that deals expressly in the Treaty with the elimination of double taxation. However, it is interpreted less in terms of a hard and effective obligation for Member States than in soft terms of invitation and exhortation addressed to them. It has become a source of divergent interpretations and is now facing its repeal by the Treaty of Lisbon (if and when ratified). What is the picture before and after repeal in terms of positive and/or negative effects on the tax integration process?

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