Commission v Belgium (Directive 2016/1164 – Double imposition)

Provisional text OPINION OF ADVOCATE GENERALKOKOTTdelivered on 22 May 2025 (1)Case C‑524/23 European Commissionv Kingdom of Belgium( Action for failure to fulfil an obligation – Transposition of Directive (EU) 2016/1164 – Rules against tax avoidance practices that directly affect the functioning of the internal market – Legislative competence of the European Union – Article 115 TFEU – Non-transposition of Article 8(7) of that directive – Minimum harmonisation – Scope of the obligation to transpose )I.      Introduction 1.        This action for failure to fulfil an obligation is in the field of rules against tax avoidance practices. Direct taxation, such as the corporate tax concerned in the present case, is in principle subject to the fiscal and tax sovereignty of the Member States. However, it appeared appropriate to the Council to lay down rules against tax avoidance practices at EU level in order to prevent a fragmentation of the internal market and put an end to mismatches and market distortions. To that end, it created a minimum level of protection for national corporate tax systems against tax avoidance practices across the European Union with Directive (EU) 2016/1164 of 12 July 2016 (2) (‘the Anti-Tax Avoidance Directive’, or ‘the ATAD’).2.        As well as a general anti-abuse rule, the ATAD also contains a specific rule directed against tax advantages through transferring profits to a foreign subsidiary. The classic case is the establishment of a subsidiary in a...