Forenelig fraflytterbeskatning? En analyse af dansk fraflytterbeskatning for personlige aktionærer og reglernes forenelighed med EU-retten

Sara Nattestad

Student thesis: Master thesis


In January 2013, the European Commission formally requested Denmark to amend its legislation concerning exit tax on shares held by individuals. Denmark, however, does not agree with the European Commission, as it considers the tax rules being in line with EU-law and hereby fulfilling Denmark’s obligations under Articles 21, 45 and 49 TEUF. This master thesis examines whether or not EU-law supports the allegations raised by the European Commission. This examination is done by analyzing the aims and extents of the provisions § 38-40 in the Danish “aktieavancebeskatningslov” which regulate Danish exit taxation for individuals. The effects of the provisions are numerous and impact all individual shareholders leaving Denmark. The provisions can sometimes result in higher taxes for the individuals leaving the country compared to those staying in Denmark. Moreover, the provisions can have a negative impact on the cash flow for individuals leaving Denmark since incidents concerning their shares can lead to early payment of taxes before these shares are even sold. Such negative impacts are not eliminated in the most recent changes to the provisions. Next, all the specific allegations put forth by the European Commission are presented. There is convergence between these allegations and the approach taken by the European Court of Justice in infringements cases. This approach is therefore mirrored in an analysis of the current EU-law on exit taxation during which the leading precedents are examined too, to better understand the current state of EU-law. Conclusively, it seems that the Danish provisions amount to a restriction because they obstruct individuals leaving Denmark. Pursuits exist which might help justify such Danish restriction, but it is nevertheless crucial that the restriction does not go beyond what is necessary in order to attain the objectives it pursues. EU case law states that provisions resulting in negative cash flows and higher taxing on individuals leaving e.g. Denmark than those staying home are disproportionate. Thus, the Danish provisions are not in line with current EU-law and the European Commission is subsequently entitled to refer the case to the Court of Justice. Such infringement case can oblige Denmark to change the provisions once again; this time so that no individuals leaving Denmark have to pay a higher tax or pay the tax at an earlier stage than the time when the shares are sold.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
Publication date2013
Number of pages111