1. Tax avoidance in the BEPS context - Reactions to avoidance and aggressive tax planning – The Role of SAARs and Linking Rules
Joachim Englisch

2. Categorisation of SAARs / linking rules
Domestic vs. treaty rules
Placement depends on legal requirements / policy considerations
Treaty SAAR / l.r.: self-executing or enabling provision
Relevant for role vis-a-vis domestic AARs in effort to tackle BEPS
Objective / purpose:
Anti-abuse/anti-avoidance SAAR in a strict sense OR
Anti-BEPS SAAR in a broader sense OR
Level playing field / tax fairness SAAR (including linking rules)
Potentially relevant for EU fundamental freedom assessment
Relevant for tax policy choice: SAAR vs. GAAR/TAAR

3. SAAR vs. GAAR & TAAR: policy considerations
Mere anti-avoidance instrument?
Legal certainty
Uniform application in Contracting States
Likelihood of unintended int‘l double taxation
Flexibility / “future-proof“ instrument
Robustness against circumvention
Targeted vs. “shotgun“-approach
Complexity
Legal traditions of the Contracting States
Sometimes, a combination of SAAR & TAAR can be advisable

4. GAARs/TAARs: fallback rules to SAARs?
Preliminary remark: “same level“ analysis
BEPS Reports often advocates fallback role of GAARs
However, the extent to which this is possible is ultimately an issue of interpretation
Transaction/ arrangement covered by substantial scope of SAAR?
Avoidance scheme / technique targeted by SAAR?
SAAR criteria avoided (or escape clause criteria met) substantially and not merely artificially?
(Only) If all three answers are positive, the subsidiary application of a GAAR should be excluded
Different domestic legal backgrounds / traditions will influence the outcome → treaty clarification may be useful

5. Interaction: domestic & treaty (S)AARs / l.r.
Preliminary remark: interaction of linking rules see Action 2 / II
Treaty SAAR and domestic AAR
If self-executing: application of domestic AAR unnecessary
Treaty SAAR may limit the scope of application of domestic GAARs/TAARS, anti-avoidance doctrines, or SAARs
Alternatively, treaty SAAR might have to be interpreted in the light of a corresponding domestic SAAR regime / concept
Domestic SAAR / linking rule and treaty AAR
No interaction if SAAR doesn‘t conflict with standard treaty rules
Incl. situations where SAAR determines “facts of tax liability“ (unrestrained by / in absence of treaty SAARs to this effect)
Otherwise: need for authorisation by express treaty AAR?

6. SAARs / linking r. in light of primary EU law
Under current CJEU case law, many SAAR / l.r. proposals of the BEPS Reports cannot be reconciled with EU fund‘l freedoms
(Only) DTC distribution / method rules shielded from scrutiny
(Only) sometimes, modifications are possible (e.g. CFC, LOB)
For full(er) BEPS SAAR implementation, CJEU would have to…
Allow for standardised anti-abuse rules
Assess allocation “SAARs“ as such (not as anti-abuse regimes)
Allow for tax fairness considerations as “imperative interests“
Exceptionally, State aid concerns may also arise
The ATAD would test some limits if adopted …
… and might indeed improve chances of generous CJEU scrutiny