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Case law note: The ECJ as a Protector of Tax Optimization via Holding Companies

This contribution discusses and analyses the saga of the ECJ case law in the Eqiom (C-6/16), Deister Holding/Juhler Holding (C-504/16 & C-613/16) and Hornbach-Baumarkt (C-382/16) cases. The article demonstrates that the Court is the protector of tax optimization via holding companies that are established within the EU/EEA. Although the analysed conclusions of the ECJ arise from the examination of the compatibility of domestic tax law of Member States in question (France and Germany) with EU primary and secondary law in force before 2016, their relevance goes a way beyond it, in particular to Article 6 of the ATAD and Article 7(1) of the MLI. Once again, the ECJ case law analysed here shows that fight against tax avoidance must not go beyond its objective. Ultimately, a tax system of the EU should be designed so that the prevention of tax avoidance (proportional anti-tax avoidance measures) should go hand-in-hand with maintaining an attractive business and investment climate (tax exemptions and intelligent incentives). This would significantly stimulate fair competition by creating a level playing field between different stakeholders (taxpayers and Member States).