Based on a recent economic survey conducted by IlSole24ore© - report published on 08.31.2016 - our beautiful country boasts an unfortunate record: gold medal for the European country with the highest tax burden on companies, placing itself at 64.8%. The podium is then occupied by France (62.7%) and followed by Belgium (58.4%).
The survey was conducted by comparing the countries of the European Union and also the main countries of the world (Japan, Australia, Russia...).
However, if we look further down the ranking, it is clear that countries such as Ireland and Denmark have a tax burden that is more than half lower, 25.9% and 24.5% respectively.
How is it possible that in a single common European market we witness such macro imbalances?
The answer is simple. Because corporate and personal income taxes fall exclusively within the competence of individual Member States and the EU has no direct role in taxation or in setting tax rates. This is the so-called fiscal sovereignty reserved for each country.
So a company that carries out activities in a country of tax oppression has no remedies? Is he forced to remain there in conditions of economic mortification, if not downright unproductivity? There is actually a remedy! The principle of freedom of establishment.
According to what was established by the EC Treaty - first - with rules later merged into the TFEU in articles. 49-55, the freedom of establishment and the freedom to provide services allow and guarantee the mobility of businesses and professionals in the European Union. From this derives a precious and unmissable freedom of choice, freedom to choose the burden of tax burden on one's entrepreneurial activity.
Remarkable in this regard was the sentence pronounced almost a year ago by the Criminal Section of the Court of Cassation in the Dolce & Gabbana case, which, referring to previous sentences of the Court of Justice, clarified that: "if a company has decided to set up "subsidiaries" in another member country in order to benefit from the favorable tax regime that such establishment entails, this does not in itself constitute an abuse and therefore does not preclude the aforementioned company from invoking the articles. 43 and 48 of the Treaty".
The famous Centros ruling is illuminating (ruling 9.3.1999 - case c-212/97 point 25, and X and Y, point 42). When evaluating the behavior of the taxable person, particular attention must be paid to the objective pursued by the freedom of establishment. This is the objective of allowing a citizen of a Member State to create a secondary establishment in another Member State to carry out his activities there and thus encourage economic and social interpenetration in the territory of the Community in the sector of independent activities.
To this end, freedom of establishment intends to allow an EU citizen to participate, in a stable and continuous manner, in the economic life of a Member State other than his own State of origin and to derive the advantage that the laws of the elected State ensure him. . Perhaps states that have burdensome and discouraging taxation should ask themselves how much it can benefit the economic development of the country.
Milano, September 1st 2016.
Avv. Giovanni Babino
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