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21 Colum. J. Eur. L. 451 (2014-2015)
The Development of the Comparability Analysis by the Court of Justice of the European Union in the Context of Capital Income Taxation

handle is hein.journals/coljeul21 and id is 469 raw text is: THE DEVELOPMENT OF THE COMPARABILITY ANALYSIS BY THE COURT OF JUSTICE OF THE EUROPEAN UNION IN THE CONTEXT OF CAPITAL INCOME TAXATION Carlo Garbarino* National direct taxes impose burdens and restrictions on European citizens' exercise of freedoms, namely, on the mobility of capital. From an economic perspective, capital is a mobile factor of production within the EU, creating complex adjudicative issues. The Court addressed these issues through an evolutionary jurisprudence that percolated from Member States through national courts up to the Court of Justice of the European Union (ECJ). Under the overarching principle of non-discrimination, the ECJhas addressed these issues by employing a comparability analysis identifying sets of context-oriented comparable situations (comparables), on the basis of their specific fact patterns, in order to determine which tax restrictions actually impose a burden on the mobility of capital (the tax cases). These comparables constitute an interlocking systemic grid used by the Court to adjudicate such tax cases. Carlo Garbarino is a professor of taxation at the Universitd Bocconi in Milan and the Grotius Research Scholar at the University of Michigan Law School. He is also a member of the A. Sraffa IDC Institute of Comparative Law and of Bocconi's steering committee for the Ph.D. program in International Economic Law. Prof. Garbarino's research interests include taxation law, international and comparative taxation law, international law, comparative law, the general theory of law, and the economic analysis of law. He has been a visiting scholar at Yale Law School and a visiting professor at the Universit6 Paris- Sorbonne, the University of Michigan Law School, the University of San Paulo, the University of Florida and NYU Law School. Prof. Garbarino is the author of 70 publications on Italian, comparative, and international taxation. The author gratefully acknowledges comments from Reuven Avi-Yonah, Itai Grinberg, Daniel Halberstam, Michael Graetz, Michael Knoll, Ruth Mason Donald Regan, and Daniel Shaviro.

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