SETTING THE SCENE

Member States have a natural interest in safeguarding the generation of public revenue (through taxes or otherwise), and in deciding what this revenue will be used for. However, the fundamental freedoms and the secondary legislation enacted in the area of common market law are also applicable to national measures concerning public finances. Under EU law, Member States must “take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union”. Against this background, this contribution asks whether EU law recognises fiscal interests as legitimate public interests in common market law and, if so, what such recognition entails.

To approach these questions, this chapter will begin by briefly sketching out the role of public interests in common market law (section 2.), focusing, in particular, on their role as grounds for the justification of discriminatory or restrictive national measures. In a second step, the term “fiscal interests ”shall be further clarified (section 3.). These considerations are followed by an analysis of the case law of the European Court of Justice (CJEU) in which Member States have invoked such interests in order to justify limitations of fundamental freedoms (section 4.). In accordance with the working definition of “fiscal interests” presented here, two groups of cases, namely those concerning the generation of state revenue and those relating to its preservation, are distinguished. A final section (section 5.) presents the results of the case law analysis and concludes with brief remarks on their application to the scenario of a state crisis.

THE ROLE OF PUBLIC INTERESTS IN COMMON MARKET LAW

Common market law is – in its entirety – based on the assumption that granting fundamental freedoms to all EU citizens and entities (and in case of the free movement of capital, even to third country nationals) lies in the public interest, as all members of the market would profit from such an arrangement. However, there is a second, and, arguably, for the present purposes more important, role for public interests in common market law, namely their role as grounds for the justification of discriminatory or restrictive national measures.