MECCANISMI EUROPEI PER LA SOLUZIONE DELLE CONTROVERSIE FISCALI INTERNAZIONALI: NATURA DELLE PROCEDURE E TUTELA DEL CONTRIBUENTE

In the european legal and economic environment, international double taxation constitutes a major obstacle to the achievement of the Union's objectives, first and foremost the realisation of the single market, based on free competition, in which goods, persons, services and capital can circulate unhindered. Certainly, Double Taxation Conventions (DTCs) significantly mitigate the detrimental effects of multiple tax claims on the same wealth. In fact, these Conventions contain substantive provisions concerning the criteria for allocating the power to tax between the various tax jurisdictions involved, which leads - depending on the case - to the elimination tout court, or the mitigation, of double taxation. However, it has always been found that there are no instruments capable of guaranteeing the correct interpretation and application of the rules contained in such Conventions: the jurisdictional instruments provided for by national systems are not, because they keep alive the risk of conflicting judgments formed in the various jurisdictions; the mutual agreement procedures that the Double Taxation Conventions themselves provide for are not, because the Administrations are not required to reach an agreement. In this context, the european legislator intervened through the adoption of Directive no. 2017/1852/EU of 10 October 2017 (called ‘dispute resolution mechanisms in tax matters in the European Union’), which introduces and regulates european instruments to resolve disputes arising from the misinterpretation and misapplication of provisions contained in double taxation conventions. More precisely, the Directive introduces and regulates an instrument to resolve disputes, in the matter of double taxation, which overcomes the main criticalities that invalidate the effectiveness and effectiveness of the instruments provided for by the Conventions. This is achieved through the recognition, to the taxpayer, of a series of prerogatives during the course of the procedures and, above all, through the introduction of a compulsory arbitration phase to which the taxpayer may have access when the Administrations, during the course of the mutual agreement procedure, have not reached an agreement as to how to resolve the dispute, thus guaranteeing the obtaining of a decision capable of removing the double taxation. In this paper, an attempt is made to show how the instruments provided for by the Directive have a different nature and function from those of conventional sources, inasmuch as they are ontologically designed to protect different interests. In particular, an attempt is made to show how the european instruments are not ascribable to the purely diplomatic means of settling disputes between states - a category within which those provided for by DTCs are traditionally placed - but rather must be qualified as true administrative procedures that, in the arbitration phase, assume a justicial nature. For these purposes, the research will be divided into two parts. In the first part, the historical origin of international tax dispute resolution mechanisms (Chapter I) and their current positive regulation (Chapter II) will be investigated. This will be instrumental in understanding why TDRMs (Tax Dispute Resolution Mechanisms) are traditionally brought under the umbrella of diplomatic dispute resolution instruments and what are the defining characteristics of these instruments. These aspects are of absolute centrality since, only once they have been precisely delineated, will it be possible to understand the reasons that suggest that, with the Directive, a radical paradigm shift has occurred with respect to the status quo ante. In addition, these in-depth studies will prove useful because they will make it possible to clarify concepts and institutions which, mutatis mutandis, are necessary for the exegesis of the Directive, thus allowing the second part of the paper to be devoted to the analysis of the questions that assume greater centrality in view of the objectives of the present investigation. In the second part, after briefly clarifying the role of double taxation in the delicate division of competences between the Union and the Member States, the function, structure and innovative aspects of Directive no. 2017/1852 will be examined, highlighting the reasons why it introduces instruments that are peculiar and, for this reason, difficult to be assimilated to those of conventional sources (Chapter III). On the basis of these theoretical premises, the nature of the european procedures and their consequences will be reflected upon, focusing particular attention on the arbitration phase, since the latter is the element that - in all likelihood - must be considered the most relevant aspect of the institutions contained in the Directive (Chapter IV). Lastly, in Chapter V, we will turn our attention to the italian transposing legislation (Legislative Decree no. 49/2020), not in order to subject to exegesis the compendium of implementing rules issued by the domestic legislature, but rather to highlight how the Italian legislation, precisely on an aspect that significantly affects the effectiveness and efficacy of the procedures, may present potential aspects of incompatibility with the Directive. We are referring to the preclusive effects, with respect to access to and continuation of the procedures, that the implementing decree connects to the existence of a domestic judgement formed on the same issue that is the subject of the european procedures.