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Download Free PDFOpinion Statement ECJ-TF 2/2020 on the CJEU decision of 3 March 2020 in Case C-75/18, Vodafone Magyarország Mobil Távközlési Zrt., on progressive turnover taxesJoão Nogueira

2020, European Taxation

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Abstract

This article is a commentary on the decision of the Court of Justice of the European Union on the Vodafone case, C-74/78 on progressive turnover taxes. In our view, the Court’s decision provides clarifications for ascertaining the compatibility of domestic turnover taxes with the fundamental freedoms and with Article 401 of the VAT Directive. This is particularly relevant in the current context, in which some Member States have adopted or plan to adopt turnover-based digital services taxes. Although provided with the opportunity, the Court has avoided to explicitly address AG J. Kokott’s arguments relating to the correlation between the chosen distinguishing criterion (i.e., turnover) and the seat of the undertakings and the question whether indirect discrimination is to be taken to exist in any case if the distinguishing criterion was intentionally chosen with a discriminatory objective. Rather, the Court straightforwardly found that the distribution of the burden of a turnover tax between domestic and foreign or foreign-owned taxpayers is not an indicator of covert discrimination, unless the features of such tax “inherently” create a discrimination; the mere fact that most of the taxpayers are non-residents or owned by non-residents or that most of the tax raised is paid by them is just a “fortuitous” effect. We note that this decision should not be seen as giving Member States carte blanche for all technical features of domestic digital services taxes, e.g., the choice of thresholds, the earmarking of revenues, or consolidation rules. One should also not forget other non-EU law concerns, given the structural inefficiencies that this type of taxes presents (e.g., economic effects, trade law, domestic constitutional law, double taxation, etc).

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References (24)

1. Vodafone (C-75/18), paras 18-32 (for the same result see also Kokott paras 135-147)
2. 31 Opinion of AG Kokott (Case C-75/18, Vodafone), paras 148-188.
3. See Opinion of AG Kokott (Case C-75/18, Vodafone), para 1.
4. General Court, 16 May 2019, Cases T-836/16 and T-624/17, Poland v. Commission, EU:T:2019:338 (pending before the ECJ as C- 562/19
5. P, following the Commission's appeal of 2 July 2019, [2019] OJ C 328/29).
6. General Court, 27 June 2019, Case T-20/17, Hungary v. Commission, EU:T:2019:448 (pending before the ECJ as C-596/19 P, following the Commission's appeal of 6 August 2019, [2019] OJ C 348/10). 35 Opinion of AG Kokott (Case C-75/18, Vodafone), paras 148-188. 36 Opinion of AG Kokott (Case C-323/18, Tesco), paras 141-173.
7. Vodafone (C-75/18), paras 40-41, referring to ECJ,1 April 2014, Case C-80/12, Felixstowe Dock and Railway Company and Others, EU:C:2014:200, para. 23. 42 Vodafone (C-75/18), paras. 42 and 44.
8. Vodafone (C-75/18), para 43, referring to ECJ, 5 February 2014, Case C-385/12, Hervis, EU:C:2014:47, para. 30, and ECJ, 26 April 2018, Cases C-236/16 and C-237/16, ANGED, EU:C:2018:291, para. 17. 44 See the extensive analysis in the Opinion of AG Kokott (Case C-75/18, Vodafone), paras 57-103.
9. Vodafone (C-75/18), paras 18-32 (for the same result see also Kokott paras 135-147).
10. General Court, 16 May 2019, Cases T-836/16 and T-624/17, Poland v. Commission, EU:T:2019:338 (pending before the ECJ as C- 562/19
11. P, following the Commission's appeal of 2 July 2019, [2019] OJ C 328/29).
12. General Court, 27 June 2019, Case T-20/17, Hungary v. Commission, EU:T:2019:448 (pending before the ECJ as C-596/19 P, following the Commission's appeal of 6 August 2019, [2019] OJ C 348/10).
13. See the Commission's Decision (EU) 2017/329 of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover, [2017] OJ 2017 L 49/36. 84 Hungary v. Commission (T-20/17), paras 78-83. 85 Hungary v. Commission (T-20/17), paras 83-90.
14. See for that argument recitals 68 and 69 of the Commission's Decision (EU) 2017/329 of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover, [2017] OJ 2017 L 49/36. 87 Hungary v. Commission (T-20/17), para. 89. 88 Hungary v. Commission (T-20/17), paras 91-104.
15. 99 Pending as Case C-596/19 P, Commission v. Hungary (following the decision of the General Court, 27 June 2019, Case T-20/17, Hungary v. Commission, EU:T:2019:448, and the Commission's appeal of 6 August 2019, [2019] OJ C 348/10). 100 Pending as Case C-562/19 P, Commission v. Poland (following the decision of the General Court, 16 May 2019, Cases T-836/16
16. and T-624/17, Poland v. Commission, EU:T:2019:338, and the Commission's appeal of 2 July 2019, [2019] OJ C 328/29). 101 See the Commission Staff Working Document Impact Assessment, COM(2018)147 final (21 March 2018), p. 67-69. 102 See the Investigation by the US Trade Representative (USTR) under § 301 of the Trade Act of 1974, where the USTR has determined that "France's Digital Services Tax is unreasonable or discriminatory and burdens or restricts U.S. commerce" (see 84 Fed. Reg. No. 235, 66956 [6 December 2019], based on an extensive report of 2 December 2019), noting, inter alia, that for advertising 8 of 9 covered companies are US, and for digital interfaces 12 of 21 covered companies are US (and none France-based).
17. The US Trade Representative (USTR) has recently opened investigations with respect to DSTs adopted or under consideration by Austria, Brazil, the Czech Republic, the European Union, India, Indonesia, Italy, Spain, Turkey, and the United Kingdom (see 85 Fed. Reg. No. 109, 34709 [5 June 2020]).
18. See, with regard to the freedom of establishment, e.g., Vodafone (C-75/18), paras 40-41, referring to ECJ,1 April 2014, Case C- 80/12, Felixstowe Dock and Railway Company and Others, EU:C:2014:200, para. 23.
19. See, e.g., ECJ, 14 February 1995, Case C-279/93, Schumacker, EU:C:1995:31, para. 26; ECJ, 22 March 2007, Case C-383/05, Talotta, EU:C:2007:181, para. 17; ECJ, 8 July 1999, Case C-254/97, Baxter, EU:C:1999:368, para. 13; ECJ, 12 December 2002, Case C- 324/00, Lankhorst-Hohorst GmbH, EU:C:2002:749, paras 27-30; ECJ, 18 March 2010, Case C-440/08, Gielen, EU:C:2010:148, para. 37; Hervis (C-385/12), para. 30; ANGED (C-233/16), para. 30. 108 Vodafone (C-75/18), para. 54.
20. For a discussion of the statements made in the relevant parliamentary debate and in government documents in Hungary see Opinion of AG Kokott (Case C-75/18, Vodafone), paras 93-102. 110 For an argument based on ability to pay see infra Chapter III.4. of this Opinion Statement. 111 See for that distinguishing feature also Vodafone (C-75/18), para. 55. 112 Hervis (C-385/12), para 45. 113 Vodafone (C-75/18), para. 52. 114 Opinion of AG Kokott (Case C-75/18, Vodafone), paras 57-60.
21. 147 Opinion of AG Kokott (Case C-75/18, Vodafone), para. 185, referring to the exemption for small undertakings in EU VAT law. 148 Hungary v. Commission (T-20/17), para. 104.
22. See Art 4(1) and (6) of the Commission's 2018 DST proposal in COM(2018)148.
23. See, e.g., Court of First Instance, 5 April 2006, Case T-351/02, Deutsche Bahn, EU:T:2006:104, paras 101-103; ECJ, 23 April 2009, Case C-460/07, Sandra Puffer, EU:C:2009:254, para. 70. 152 For a brief analysis and further references see our "Opinion Statement ECJ-TF 2/2018 on the ECJ Decision of 7 September 2017
24. in Eqiom (Case C-6/16), Concerning the Compatibility of the French Anti-Abuse Rule Regarding Outbound Dividends with the EU Parent- Subsidiary Directive (2011/96) and the Fundamental Freedoms", 58 European Taxation (2018), 471 (474-475).

View morearrow_downward João NogueiraIBFD, Faculty MemberaddFollowmailMessage

João Félix Pinto Nogueira, PhD in Tax Law, is a Professor at the Portuguese Catholic University (“Universidade Católica Portuguesa”). He serves as Deputy Academic Chairman at the International Bureau of Fiscal IBFD and team manager of IBFD Academic. He is the Chair of the Supervisory Board of the Portuguese Securities Market Commission. He is an Honorary Associate Professor at the University of Cape Town (South Africa) and a regular visiting lecturer at several universities worldwide. He holds the position of Deputy Editor-in-Chief in leading academic publications, including the World Tax Journal, the Global Tax Treaty Commentaries, the Doctoral Series, and International Tax Studies. He is listed among the independent persons of standing by the European Commission, being authorised to act as an arbitrator under the EU directive on tax dispute resolution. Earlier in his career, he was a lawyer at one of Portugal’s most prestigious law firms. Prof. Nogueira specialises in European and International Tax Law, having authored a dissertation, several academic manuals, numerous book chapters and a wide range of scientific articles. With over twenty years of teaching experience at both the graduate and post-graduate levels, he currently lectures in multiple master's programs on EU and International Tax Law. He has extensive experience supervising academic works at the master's, doctoral and postdoctoral levels, including several award-winning theses. He is frequently invited to speak at international conferences and seminars, and often serves as national reporter for Portugal. In addition to his work at IBFD, he actively collaborates with research centres across the European Union. For several years, he served as co-arbitrator of the IBFD-KU Leuven International and European Tax Moot Court Competition, where he was responsible for drafting the cases. His professional experience also includes governmental consultancy, having been invited to assess, advise, and train various tax administrations, among them some of the most advanced in the world. He has lectured and contributed to academic initiatives in more than 30 countries across Europe, the Americas, Africa and and Asia. Prof. Nogueira is a member of the EATLP, IFA, IBDT, and IFA Portugal (“Associação Fiscal Portuguesa”), where he currently serves as Vice-President. He is a member and the scientific secretary of the ECJ Task Force of the Confédération Fiscale Européenne. He is also a member of the Executive Board of the ILADT (“Directorio”). He sits on the editorial boards of several international tax journals and frequently acts as an external peer reviewer. In 2025, he served as General Reporter for Main Topic One at the IFA Annual Congress held in Lisbon, focusing on residence for corporate income tax purposes, and was also a member of the event’s organising committee. From 2009 to 2025, he served as a member of the Permanent Scientific Committee of IFA. Academic Portals: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3402074 https://ibfd.academia.edu/Jo%C3%A3oNogueira https://www.researchgate.net/profile/Joao_Felix_Pinto_Nogueira2 https://scholar.google.co.uk/citations?user=3N35T9sAAAAJ&hl=pt-PT https://joaofelixpintonogueira.com/ https://ciencia.ucp.pt/en/persons/jo%C3%A3o-f%C3%A9lix-pinto-nogueira

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Mediterranean Journal of Social Sciences, 2012

The notion of the abuse of law it is a concept that reveals in private law in many jurisdictions. In relation to the European Tax Law, the principle of the abuse of law it is consistent with the principles of primacy and effectiveness. Recently, the Court of Justice of the European Union has resorted to the concept quite often when dealing with the reach of the fundamental freedoms guaranteed by the Treaty of the European Union. The proposed paper applies the abuse of law concept to European Tax Law related to the question of the direct taxation of cross border self-employers incomes. Of central importance here are the rules issued from the Court of Justice of the European Union that legitimize, when assessing the absence of the harmonized rules in the field of the direct taxation, restrictive measures of the fundamental freedoms of establishment and to provide services in relation of the self-employers. The proposed paper starts by exploring the context of the debate related to the...

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