The comparability analysis developed by Court of Justice of the European Union in the cases concerning the taxation of income from capital

The CJEU has addressed in its jurisprudence the issues concerning non discrimination or restrictions posed by national direct taxes to the exercise of the freedoms protected by the Treaty. The Court on a step-by-step basis has focused on the issues posed by national Courts or through infringement procedures and has identified, through the “comparability analysis”, a set of context-oriented comparable situations (“comparables”) that are applied in the decisions of the Court that specifically concern the taxation of capital (the “tax cases”). From an economic perspective, capital is a mobile factor of production within the EU and this create complex adjudicative issues that have been addressed by the Court in a jurisprudence which is the outcome of evolutionary judicial forces that operated “bottom-up” from Member States through national courts and percolated up the CJEU. The Court has derived from the overarching non discrimination principle a series of comparables that are identified on the basis of the specific fact patterns of the tax cases brought to its attention. These comparables constitute an interlocked systemic grid used by the Court to adjudicate such tax cases.