The Impact of AG Geelhoed's Theories on Recent Case Law

Abstract: This thesis begins in the view of AG Geelhoed about the right for the States to allocate the right to tax between them and that discrimination resulting from this does not fall with in scope of the free movement provisions of the Treaty. In an article by the CFE in 2006 a conclusion is drawn that the ECJ is starting to fall in line with Geelhoed’s reasoning. The aim of this thesis is to see if the case law after 2006 supports this theory. Geelhoed bases his reasoning on the idea that restriction can be of two types, so called quasi restriction that stem from the collision of two tax systems, or true restrictions that only originates in one tax system. True restrictions should be within the scope of art 43 EC, while according to Geelhoed quasi-restriction should not be. One type of quasi-restriction Geelhoed approaches is disadvantages that stem from dislocation of tax base between states. He claims that any restriction that comes from two states, perhaps through a double tax treaty, dividing the right to tax between them should not be in breach of art 43 EC. When looking at case law after 2006 there are cases such as SGI and Block that uses similar argumentation to justify breaches of art 43 EC. Other cases indicate no interest of the court in Geelhoed’s ideas. Conclusions of this thesis are that the ECJ can be seen to not fully accept these ideas but at least work with similar lines of reasoning.