The Court of Justice of the EuropeanUnion as an arbitrator in tax treatydisputes between the Member States?

Abstract

Prof. Kleineman has brought invaluable contributions to different fields of private law. He is also an internationally acknowledged arbitrator. As a tax scholar, I therefore chose to dedicate my contribution to this Festschrift to arbitration in tax matters, in an attempt to write a piece that is not completely unrelated to Prof. Kleineman’s areas of interest. This contribution concerns the rather unusual situation where the Court of Justice of the European Union (hereinafter sometimes referred to as the “CJEU”) is appointed as arbitrator in relation to a dispute between two Member States. This role is even more unusual when it comes to disputes concerning the interpretation of a tax treaty concluded between two Member States. The starting point for this contribution is a ruling issued by the Grand Chamber of the Court of Justice, whereby the Court considered that it had jurisdiction to act as arbitrator to solve a conflict between two Member States in relation to the interpretation of a tax treaty. This landmark case provides an opportunity to analyse the legal basis for the jurisdiction of the Court of Justice in relation to tax treaty disputes arising between the Member States, and, if the jurisdiction of the Court is confirmed, whether or not the Member States should seek to have tax treaty disputes solved in this manner. This contribution concerns tax treaty disputes, but it may also be relevant to other legal disciplines that are not unrelated to EU law and for which the Court of Justice might be an option for the resolution of cross-border disputes.