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Vol 21 No 9 Sept/Oct 2016

Book of the Month

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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The Sources of EU Law and Their Relationships: Lessons for the Field of Taxation

ISBN13: 9789087222949
Published: December 2014
Publisher: IBFD Publications BV
Country of Publication: The Netherlands
Format: Paperback
Price: £151.00

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In the current state of EU law, basic conceptual and methodological questions – such as the nature and status of the sources of law, their place in the normative hierarchy, the scope of various fundamental norms and the methods of analysis required by their application to national (tax) rules – are still unclear.

This is due to the fact that EU law is rarely examined as a legal system. This book aims at bridging this gap by analysing systematically the relationship of the various sources of EU law with a focus on the field of taxation.

The interactions between the rules of the founding Treaties, the general principles of EU law, fundamental rights and the legal acts of the EU institutions are examined in both hierarchical and horizontal relationships. With regard to hierarchical relationships, it is demonstrated that the Court of Justice applies a low standard in substantively reviewing the compatibility of secondary law with primary law and it is argued here that a stricter review would be necessary both as a constitutional guarantee and a reinforcement of the internal market vis-à-vis EU legislation. In the field of taxation, where the unanimity rule for the adoption of EU legislation has resulted in some dubious compromises in the existing directives, a meaningful review would be particularly necessary.

As regards horizontal relationships, a comparison is provided of the methods of analysis conducted by the EU Courts under the free movement provisions and the State aid rules when applying them to national tax measures. The analysis shows a gradual convergence of these methods. It is suggested that the ensuing overlaps between the two regimes should be resolved by perceiving the State aid rules as general rules over which the more specific free movement provisions prevail.