How the concept of fairness influences EU law

Abstract: The thesis presents fairness as a concept that can be defined in several ways. The different definitions overlap and influence each other in a somewhat unexpected manner. The conclusion of this thesis is that the utilitarian approach first presented as a philosophical theory of fairness by Jeremy Bentham is so far clearly seen as the overriding basis for the CJEU judgements. However, the adopted Anti-Tax Avoidance Directives (ATAD) provide a possibility for a change in application of fairness by moving away from strict a legal-philosophic utilitarian approach of fairness towards a more economical and political approach to fairness by the CJEU. To achieve trust in fair tax systems, however, the utilitarian legal fairness in terms of procedural rights must be regarded. The ATAD’s are an outcome of the shared legislative competence between the EU and the Member States since it is a matter concerning the single market. This has led to the fair allocation of taxing rights being a shared competence as the objective of the directive is to restore trust in fair tax systems by taxing where value is added. However, even if the allocation of taxing rights can be distributed in a fair manner among the Member States, the unharmonised tax rates will provide for a continuous unfair tax burden on the different tax contributors. This is because the Member States are still competing in ‘the race to the bottom’ in an eager attempt to attract multi-national enterprises (MNE’s). The MNE’s aim is to attain the overall lowest possible corporate income tax within all jurisdiction, while not so mobile individuals and other companies only acting in a domestic market do not have the possibility to shift their taxable income to most favourable tax jurisdiction.