ЕКСТЕРНА ДИМЕНЗИЈА СЕКУНДАРНОГ ПРАВА ЕВРОПСКЕ УНИЈЕ О ДИРЕКТНИМ ПОРЕЗИМА
EXTERNAL DIMENSION OF THE SECONDARY EU LAW ON DIRECT TAXES

Summary/Abstract: Only one of the four freedoms that represent the core of European Union economic and social policy has an external dimension, and that is free movement of capital. The EU law is predominantly contained in the Union’s secondary legislation (regulations, directives, decisions, recommendations and opinions), and not in the primary sources of law (TEU and TFEU). Both primary and secondary sources of the EU law may have direct effect. The main focus of this paper is the impact of the EU directives on direct taxation on third countries (i.e. non-member states). This impact is conditional on the existence of a special agreement between the EU and the country in question. However, directives have to be implemented in the member states, thus becoming part of their respective national legislation. It is ECJ’s position that the national courts, taking into consideration both the purpose of the national law and the facts of the case, should decide if the principle of free movement of capital is directly applicable and, if it is, to bar a differential treatment which derives from the law. The justification for an unequal treatment is frequently found in the differences in the degree of integration that exist among the member states, on the one hand, and between them and a third country, on the other. The authors also analyze legislation relating to permanent establishments when a third country is involved.

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