Member States frequently try to justify restrictive tax provisions with the need to ensure an effective fiscal supervision. In this context, the European Court of Justice (ECJ) has applied this justification reason notably different in intra-EU situations and in situations involving a third country. In the latter cases, the Court tends to be less stringent regarding the acceptance of this justification. In light of the most recent judgments of the ECJ, namely Welte and Emerging Market Series, this article seeks to determine how much leeway the Member States have to implement provisions that foresee an unequal treatment of capital investments in third country situations.

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