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121 Yale Law Journal 1118 (2012) (with Alvin C. Warren Jr.)


The foundational treaties of the European Union establish a unique system of government. In general, they leave decisions about how to levy income taxes and at what rates to the member states. If the member states agree unanimously - a rare occurrence indeed - the European Commission, Council, and Parliament can together issue income tax directives, but so far these few directives have been limited to rather technical matters. Within Europe, as elsewhere, cross-border transactions involving income taxation are also governed by an extensive network of bilateral income tax treaties that, while reflecting many common principles, often vary in their details.

In this context, the European Court of Justice (ECJ) is charged with ensuring, to the extent appropriate and practicable, that the member states' income tax laws do not interfere unduly with the "four freedoms" guaranteed by the Treaties: free movement of goods, services, labor, and capital. These freedoms of movement were intended to create an economic market relatively free of internal barriers, as well as greater social and political union within Europe.

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