Increasing Direct Tax Harmonization and the Role of Tax-Relevant Economic Guarantees in Primary EU Law – a Reflection on a (yet to be Formed) Trend

The court is showing a tendency towards exposing secondary EU law to a less intensive review under primary EU law than it does for national law. With a potentially large wave of direct tax law harmonization ahead, this has been met with alertness in literature as it may not be adequate for the field of taxation. Against this background, this article elaborates on the development of a direct tax relevant doctrine on the enforcement of economic rights enshrined in primary EU law. The core argument worked out by the author can be summarized as follows. Given the weak democratic legitimation of EU direct tax directives, and having regard to the fact that they are extraordinary difficult to adapt or abolish, the court has an increased responsibility to protect taxpayers’ economic rights – particularly when the underlying legislative decision or value is not worth being upheld at the cost of an infringement of such rights.