Abstract
This paper concerns the relationship between recent CJEU case law and the Anti-Tax Avoidance Directive as regards the controlled foreign company rules (CFC rules). This area of tax law has been so far affected by the law of the European Union only within the negative integration.
Thus, CJEU's decisions played a crucial role and gradually established conditions for the application of member states's domestic CFC rules in order to apply these rules consistently with economic freedoms enshrined by the Treaty on Functioning of the European Union. This approach was changed by the enactment of the Anti Tax Avoidance Directive which itself lays down CFC rules and provides for minimum standard of member states's CFC regulation (for those member states that had had CFC rules in their tax legislation and also those states that had to transpose them as a completely new tax measure).
The objective of this paper is to consider a relevance of CJEU's case law concerning CFC rules enacted before introduction of the Anti Tax Avoidance Directive. In order to identify questionable areas, the following legal instruments are analysed and compared: the outputs of the project BEPS carried out by the OECD, especially the Action 3 Designing Effective Controlled Foreign Company Rules, CFC rules laid down in the article 7 of the Anti-Tax Avoidance Directive and CJEU's case law concerning CFC rules.
The analysis and evaluation of the CJEU's case law and its relevance to the Anti-Tax Avoidance Directive is necessary for the purpose of future interpretation and application of member states's domestic CFC rules transposed or adjusted on the basis of the Anti Tax Avoidance Directive.