Enforceability of OECD Linking Rules in the Light of EU Law
Bruno Vanden Berghe
Solvay Brussels School of Economics & Management, BE
Executive M.Sc. Candidate (Taxation); Member of the Brussels Bar; Winner of the ‘Pump Court Tax Prize’ for best performance in Taxation in the LLM Programme 2015-2016. The author wrote this paper at the London School of Economics to obtain the title of LL.M.
To counter tax arbitrage resulting from the use of hybrid financial instruments, the Organization for Economic Co-operation and Development (OECD) suggested the implementation of anti-hybrid mismatch rules, which align the domestic tax treatment of hybrid financial instruments with their tax treatment in foreign countries. This paper assesses the enforceability of these so-called “linking rules” in the light of European Union (EU) law. Since the European Court of Justice (ECJ) has yet to rule on their relation to EU law, considerable weight is assigned to legal literature and comparable ECJ case law. Following the various steps of the analytical framework adopted by the ECJ, the author concludes that OECD linking rules are enforceable in the light of EU law, provided that the Member States implementing these rules domestically complement them with additional conditions.
How to Cite:
Vanden Berghe, B., 2017. Enforceability of OECD Linking Rules in the Light of EU Law. LSE Law Review, 2, pp.63–92.