The Compatability of the OECD MNA with EU Fundamental Freedoms and the Case Law on Abuse

Abstract: The OECD Modified Nexus Approach (MNA) as found in BEPS Action 5 is the preferred method for implementing an IP regime. By linking IP-related expenditures to tax benefits, the approach redefined substance with the aim to prevent tax base erosion which could occur in lenient IP regimes. The approach is implemented in Member States of the European Union. This essay investigates whether the implementation of the MNA in EU Member States, which are bound by EU law, carries any incompatibility in the realm of EU fundamental freedoms. Furthermore, the MNA is also benchmarked against the EU case law on abuse, after it was arguably altered after the Danish cases of 2019.