The Application of the Fundamental Freedoms to Member State Tax Measures: Guarding against Protectionism or Second-guessing National Policy Choices?

The provisions of the EC Treaty which deal with Member State tax measures clearly seem to indicate that, in the absence of provisions of secondary law harmonizing such measures, Community law provides simply for a rule against discrimination. However, in the application of the fundamental freedoms to this area, the Court of Justice does not distinguish it specifically from other types of regulation. At least on the level of language, therefore, it often appears to apply a "restriction" approach which would go well beyond a search for discrimination in national measures. This article examines the Court's case law in some detail in order to determine what type of analysis the Court is really engaged in. It shows that, although the Court has never found a non-discriminatory measure to be contrary to Community law, there is often an ambiguity in its analysis of tax rules which leaves this possibility open and creates legal uncertainty.