João Félix Pinto Nogueira, PhD in Tax Law, is Professor at the Portuguese Catholic University (“Universidade Católica Portuguesa”). He is Deputy Academic Chairman at IBFD and team manager of IBFD Academic. He is honorary associate professor at the University of Cape Town, South Africa and regular visiting lecturer at several universities. He is Deputy Editor-in-Chief of the World Tax Journal, of the Global Tax Treaty Commentaries, of the Doctoral Series and of the International Tax Studies. He is a member of the list of independent persons of standing of the European Commission and, as such, authorised to serve as arbitrator for the purposes of the EU tax dispute resolution directive. He was a lawyer at one of Portugal's most reputed tax law firms.
His areas of expertise are international and European tax law, fields in which he has published a dissertation and several articles and book chapters. Dr Nogueira has more than twenty years of experience in teaching at both the graduate and post-graduate levels and is currently overseeing several master's courses on EU and international tax law, taught in different languages.
He has extensive experience in supervising academic works (at the master's, doctoral and postdoctoral levels), including several prize-winning theses. He is regularly invited to present at conferences and seminars on both EU and international taxation and is frequently appointed as a national reporter for Portugal. Besides his scientific activities at IBFD, he collaborates actively with research centres in several EU countries. For several years, Dr Nogueira served as co-arbitrator of the IBFD-KU Leuven International and European Tax Moot Court Competition, responsible for drafting the cases. Since 2018, he has been appointed as judge of the final rounds. His experience also comprises governmental consultancy, in which context he has been asked to assess, advise and train several tax authorities, including some of the most advanced in the world. He has lectured or been scientifically active in more than 30 countries in Europe, America, Africa and Asia.
He is a member of the EATLP, IFA, IFA Portugal (Associação Fiscal Portuguesa) and IBDT. He is the Vice-President of the AFP / IFA Portugal. He is a member of the Permanent Scientific Committee of IFA Central, member and secretary of the Committee of IFA Europe. He is a member (and the scientific secretary) of the ECJ Task Force of the Confédération Fiscale Européenne. He is also a member of the Executive Board of the ILADT (Directorio) and the General Council of the IFA. He is one of three members of the LOC (Local Organizing Committee) in charge of organizing the 2025 Annual Congress of the International Fiscal Association, which will be held in Lisbon. He is a member of the editorial board and council of several periodicals on international taxation and frequently acts as an external peer reviewer.
His areas of expertise are international and European tax law, fields in which he has published a dissertation and several articles and book chapters. Dr Nogueira has more than twenty years of experience in teaching at both the graduate and post-graduate levels and is currently overseeing several master's courses on EU and international tax law, taught in different languages.
He has extensive experience in supervising academic works (at the master's, doctoral and postdoctoral levels), including several prize-winning theses. He is regularly invited to present at conferences and seminars on both EU and international taxation and is frequently appointed as a national reporter for Portugal. Besides his scientific activities at IBFD, he collaborates actively with research centres in several EU countries. For several years, Dr Nogueira served as co-arbitrator of the IBFD-KU Leuven International and European Tax Moot Court Competition, responsible for drafting the cases. Since 2018, he has been appointed as judge of the final rounds. His experience also comprises governmental consultancy, in which context he has been asked to assess, advise and train several tax authorities, including some of the most advanced in the world. He has lectured or been scientifically active in more than 30 countries in Europe, America, Africa and Asia.
He is a member of the EATLP, IFA, IFA Portugal (Associação Fiscal Portuguesa) and IBDT. He is the Vice-President of the AFP / IFA Portugal. He is a member of the Permanent Scientific Committee of IFA Central, member and secretary of the Committee of IFA Europe. He is a member (and the scientific secretary) of the ECJ Task Force of the Confédération Fiscale Européenne. He is also a member of the Executive Board of the ILADT (Directorio) and the General Council of the IFA. He is one of three members of the LOC (Local Organizing Committee) in charge of organizing the 2025 Annual Congress of the International Fiscal Association, which will be held in Lisbon. He is a member of the editorial board and council of several periodicals on international taxation and frequently acts as an external peer reviewer.
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Books by João Nogueira
Los criptoactivos crean nuevos retos normativos resultantes de la difícil aplicación de las normas existentes a esta nueva realidad. En julio de 2020, la Comisión Europea reconocía que “[l]a aparición de medios de pago e inversión alternativos —como los criptoactivos y el dinero electrónico — amenaza con socavar los progresos realizados en materia de transparencia fiscal en los últimos años y plantea riesgos sustanciales de evasión fiscal” .
Para reducir o eliminar esos riesgos, la Comisión ha presentado una propuesta de ampliación del intercambio automático de información de los criptoactivos, que ha sido precedida por una consulta pública. Después de introducir varios cambios, el Consejo la ha adoptado como Directiva (UE) 2023/2226.
Este estudio pretende proceder a un examen critico de aspectos seleccionados de la Directiva, particularmente en lo que respecta a la capacidad de la misma (en los términos en que ha sido adoptada) para proseguir indagando en la razón de ser que le subyace. Dicha cuestión constituirá la cuestión de investigación de este estudio. El estudio no se centrará en el caso español ya que el desafío social (“societal challenge”) que conduce a la cuestión de investigación es común a todos los Estados miembros de la Unión Europea (o lo que es lo mismo, a todos los países del mundo). El estudio no incluirá las modificaciones introducidas por la DAC 8 más allá de lo que se refiere a los criptoactivos .
[ENG] Crypto assets are a recent reality, derived from a technology whose concept was first introduced in 2008. However, its growth has been exponential, and the European Union cryptoasset market has been recognized for several years as the world's largest cryptoasset market.
Crypto assets create new regulatory challenges resulting from the difficult application of existing regulations to this new reality. In July 2020, the European Commission recognized that "[t]he emergence of alternative means of payment and investment – such as crypto assets and electronic money – threatens to undermine the progress made in tax transparency in recent years and poses risks "substantial tax evasion."
To reduce or eliminate these risks, the Commission has presented a proposal to expand the automatic exchange of information on crypto assets, which has been preceded by a public consultation. After introducing several changes, the Council adopted Directive (EU) 2023/2226.
This study aims to carry out a critical examination of selected aspects of the Directive, particularly with regard to its capacity (in the terms in which it has been adopted), to continue investigating the rationale behind it. This question will constitute the research question of this study. The study will not focus on the Spanish case since the social challenge that leads to the research question is common to all member states of the European Union (or, in other words, to all countries). of the world). The study will not include the modifications introduced by DAC 8 beyond what refers to cryptoassets.
Due observance of the EU principles of subsidiarity and proportionality may make it hard to remove many instances of cross-referencing between the EU and domestic or public international law levels. In any case, the EU legislator should be careful in the cross-referencing, not remitting to a certain label or categorisation but to the underlying legal treatment associated with that label. Even if that increases complexity in the legislation, it may be the only way of ensuring that posterior changes in the referred provisions do not undermine the EU law instrument, preventing or deviating it from its underlying rationale.
Corporate tax directives were designed on the assumption of an underlying tax obstacle, being it juridical or economic double taxation. That assumption is explicitly referred to in the Preamble of the Directives. However, the way they were designed does not ensure a strict link between such obstacles and the entitlement to the directive benefits. The EU legislator was clearly concerned with limiting access to the Directives’ benefits to cases in which all parties to the transaction / restructuring operation were residents for tax treaty purposes in the Union. However, as demonstrated, the real requirement is that the tax obstacle occurs within the EU, and that beneficiaries of the EU directives are subject to worldwide taxation in the EU. Here, reference should not be made to the epiphenomena (the residence) but to real phenomena (the worldwide taxation of that item of income in all of the involved companies).
Better-designed provisions, with a more robust and stricter alignment between the wording and the rationale, reduce administrative and compliance costs while decreasing cases where the EU-nationals may exploit frictions between the wording of the provision and its object and purpose, decreasing the instances where national administrations and/or Courts are forced to resort to anti-avoidance provisions or (unwritten) principles.
Only by proceeding in this way can the EU legislator ensure that the EU legal order is truly at the service of the Member States and its nationals and that the internal market is strengthened, as required by the founding treaties.
The book explains the fundamentals of taxation in a simple manner and without reference to a specific legal system. This method allows the book to set out fundamental considerations beyond the boundaries of any actual tax system whilst emphasizing that taxation is always rooted in a legal regime, policy considerations and administrative practice.
The book aims to strengthen awareness of taxation beyond technical circles and was written for the most diversified categories of users in civil society and beyond. People who can benefit from this book may range from university students to tax practitioners and members of civil society from both developed and developing countries who seek a clearer view of current fundamental issues regarding the levying of taxes in a global setting. Furthermore, the book provides basic notions of taxation required for building a theoretically responsible understanding of the operation and challenges of international taxation.
Papers by João Nogueira
The Apple case concerns the question of whether tax rulings issued by the Irish tax administration to Irish incorporated but non-resident companies that form part of the Apple Group are compatible with EU rules on State aid and, in particular, if the General Court's holding that the Commission had failed to prove to the required standard that such aid had indeed been granted, was legally correct.
The Court set aside the General Court judgment of 15 July 2020, which had annulled the European Commission findings of State aid. The CJEU's Grand Chamber found that the General Court made errors in its understanding of the Commission's decision that led it to wrongly conclude that the Commission had failed to demonstrate that the tax rulings led to favourable tax treatment of the non-resident entities in comparison to non-integrated standalone companies and other companies dealing at arm's length. In reaching this result, the Grand Chamber judgment follows the Opinion of AG Pitruzzella delivered on 9 November 2023.
Rather than referring the case back to the General Court for reconsideration, as the AG had recommended, the Court decided to render a final judgment on the validity of the Commission decision, reinstating it in full.
This Opinion Statement seeks to explain and analyse the CJEU's reasoning both with respect to the annulment of the General Court's judgment and its final ruling on the granting of illegal state aid to the Apple Group.
The first area (scope) analyses (i) the unequal treatment of companies that the annex may create and the Commission’s delegated power to amend it; (ii) the possible conflict with double tax treaties, namely on PE profit attribution and on ownership non-discrimination rules. The second area (preliminary tax result) emphasises the need for greater coordination with other secondary law, especially the GMT directive. The third area (tax base allocation) evaluates: (i) the issues surrounding losses; (ii) the distortions caused by the transitional 'presumptive' transfer pricing rules on the tax base allocation and the conflict with CJEU case law; (iii) and shows how the unlimited power of Member States to adjust their BEFIT base may undermine the fundamental goals of the proposed Directive. Finally, the fourth area (administration and procedures) shows that (i) the two-tier procedural obligations are hard to reconcile with the spirit of the announced one-stop shop compliance mechanism, and that; (ii) legal uncertainty might arise as to the impact of the proposed Directive on domestic procedural rules.
The Engie case concerns the question whether tax rulings issued by Luxembourg to companies part of the French energy group Engie, are compatible with primary EU law, notably rules on State aid; and, whether, and to what extent, the Commission can invoke the concept of “abuse of law” for a State aid challenge of ex ante tax assessment issued by a tax authority of a Member state in the form of a tax ruling.
The Court set aside the General Court judgment of 12 May 2021, which initially upheld the European Commission findings of State aid. The CJEU’s Grand Chamber found that the European Commission did not establish to the appropriate legal standard that the tax rulings related to the zero-interest convertible loan (ZORA) provided selective advantage for the Engie entities. It did not establish the correct reference framework for assessment of State aid by way of excluding the legal basis for the tax ruling practice from the reference framework itself (Articles 164 and 166 LIR). By establishing an erroneous reference framework, the Commission relied on a wrongfully based selectivity analysis, a key step in establishing State aid for purposes of Article 107(1) TFEU. Finally, the Court established that the Commission cannot invoke national anti-abuse rules to establish selectivity in a situation where the non-application of the “abuse of law” concept by tax authorities unless the non-application of the antiabuse provisions is based on derogation from national law or administrative practice on anti-abuse provisions comparable to the case at issue (in concreto). Thus, the Grand Chamber judgment follows the Opinion of AG Kokott delivered on 4 May 2023. The Court, however, opened the door for establishing selectivity of tax rulings such as those in the Engie case, where the basis for taxation consists of pre-agreed margin (mark-up), approved by the tax administration, and not under the rules of ordinary tax law, under specific conditions.
This Opinion Statement focuses on questions of law and the relevance for the development of the
European Union State Aid law doctrine applicable to tax measures. The factual and corporate law
aspects are analysed to the extent relevant for the State aid analysis.
The comments contained in this study seek to provide a constructive technical input, including alternative solutions, which might overcome the identified issues and thus support the EU institutions to improve the proposed text.
The authors trust that such an approach will strengthen the proposed Directive prior to adoption, with particular reference to the need to comply with the general principles of EU law and coordinate with other secondary tax and non-tax legislation, as well as with the international tax framework. A thorough analysis of the relevant legal issues is necessary to ensure that secondary legislation can effectively achieve the desired goals, in line with the rule of law and further requirements established by the EU legal system.
This case covered other issues such as: i) whether the tax obligations imposed by the Italian government on service providers would fall within the scope of three directives regulating the provisions of services within the EU, which would require communicating it to the Commission prior to its enactment, and; ii) whether the domestic referring court is bound to phrase the preliminary ruling questions following the wording proposed by the parties in the domestic procedures. Those questions will not be covered in this Opinion Statement, which focuses solely on compatibility with fundamental freedoms and, specifically, with the freedom to provide services.
The first area (scope) analyses (i) the unequal treatment of companies that the annex may create and the Commission’s delegated power to amend it; (ii) the possible conflict with double tax treaties, namely on PE profit attribution and on ownership non-discrimination rules. The second area (preliminary tax result) emphasises the need for greater coordination with other secondary law, especially the GMT directive. The third area (tax base allocation) evaluates: (i) the issues surrounding losses; (ii) the distortions caused by the transitional 'presumptive' transfer pricing rules on the tax base allocation and the conflict with CJEU case law; (iii) and shows how the unlimited power of Member States to adjust their BEFIT base may undermine the fundamental goals of the proposed Directive. Finally, the fourth area (administration and procedures) shows that (i) the two-tier procedural obligations are hard to reconcile with the spirit of the announced one-stop shop compliance mechanism, and that; (ii) legal uncertainty might arise as to the impact of the proposed Directive on domestic procedural rules.
Los criptoactivos crean nuevos retos normativos resultantes de la difícil aplicación de las normas existentes a esta nueva realidad. En julio de 2020, la Comisión Europea reconocía que “[l]a aparición de medios de pago e inversión alternativos —como los criptoactivos y el dinero electrónico — amenaza con socavar los progresos realizados en materia de transparencia fiscal en los últimos años y plantea riesgos sustanciales de evasión fiscal” .
Para reducir o eliminar esos riesgos, la Comisión ha presentado una propuesta de ampliación del intercambio automático de información de los criptoactivos, que ha sido precedida por una consulta pública. Después de introducir varios cambios, el Consejo la ha adoptado como Directiva (UE) 2023/2226.
Este estudio pretende proceder a un examen critico de aspectos seleccionados de la Directiva, particularmente en lo que respecta a la capacidad de la misma (en los términos en que ha sido adoptada) para proseguir indagando en la razón de ser que le subyace. Dicha cuestión constituirá la cuestión de investigación de este estudio. El estudio no se centrará en el caso español ya que el desafío social (“societal challenge”) que conduce a la cuestión de investigación es común a todos los Estados miembros de la Unión Europea (o lo que es lo mismo, a todos los países del mundo). El estudio no incluirá las modificaciones introducidas por la DAC 8 más allá de lo que se refiere a los criptoactivos .
[ENG] Crypto assets are a recent reality, derived from a technology whose concept was first introduced in 2008. However, its growth has been exponential, and the European Union cryptoasset market has been recognized for several years as the world's largest cryptoasset market.
Crypto assets create new regulatory challenges resulting from the difficult application of existing regulations to this new reality. In July 2020, the European Commission recognized that "[t]he emergence of alternative means of payment and investment – such as crypto assets and electronic money – threatens to undermine the progress made in tax transparency in recent years and poses risks "substantial tax evasion."
To reduce or eliminate these risks, the Commission has presented a proposal to expand the automatic exchange of information on crypto assets, which has been preceded by a public consultation. After introducing several changes, the Council adopted Directive (EU) 2023/2226.
This study aims to carry out a critical examination of selected aspects of the Directive, particularly with regard to its capacity (in the terms in which it has been adopted), to continue investigating the rationale behind it. This question will constitute the research question of this study. The study will not focus on the Spanish case since the social challenge that leads to the research question is common to all member states of the European Union (or, in other words, to all countries). of the world). The study will not include the modifications introduced by DAC 8 beyond what refers to cryptoassets.
Due observance of the EU principles of subsidiarity and proportionality may make it hard to remove many instances of cross-referencing between the EU and domestic or public international law levels. In any case, the EU legislator should be careful in the cross-referencing, not remitting to a certain label or categorisation but to the underlying legal treatment associated with that label. Even if that increases complexity in the legislation, it may be the only way of ensuring that posterior changes in the referred provisions do not undermine the EU law instrument, preventing or deviating it from its underlying rationale.
Corporate tax directives were designed on the assumption of an underlying tax obstacle, being it juridical or economic double taxation. That assumption is explicitly referred to in the Preamble of the Directives. However, the way they were designed does not ensure a strict link between such obstacles and the entitlement to the directive benefits. The EU legislator was clearly concerned with limiting access to the Directives’ benefits to cases in which all parties to the transaction / restructuring operation were residents for tax treaty purposes in the Union. However, as demonstrated, the real requirement is that the tax obstacle occurs within the EU, and that beneficiaries of the EU directives are subject to worldwide taxation in the EU. Here, reference should not be made to the epiphenomena (the residence) but to real phenomena (the worldwide taxation of that item of income in all of the involved companies).
Better-designed provisions, with a more robust and stricter alignment between the wording and the rationale, reduce administrative and compliance costs while decreasing cases where the EU-nationals may exploit frictions between the wording of the provision and its object and purpose, decreasing the instances where national administrations and/or Courts are forced to resort to anti-avoidance provisions or (unwritten) principles.
Only by proceeding in this way can the EU legislator ensure that the EU legal order is truly at the service of the Member States and its nationals and that the internal market is strengthened, as required by the founding treaties.
The book explains the fundamentals of taxation in a simple manner and without reference to a specific legal system. This method allows the book to set out fundamental considerations beyond the boundaries of any actual tax system whilst emphasizing that taxation is always rooted in a legal regime, policy considerations and administrative practice.
The book aims to strengthen awareness of taxation beyond technical circles and was written for the most diversified categories of users in civil society and beyond. People who can benefit from this book may range from university students to tax practitioners and members of civil society from both developed and developing countries who seek a clearer view of current fundamental issues regarding the levying of taxes in a global setting. Furthermore, the book provides basic notions of taxation required for building a theoretically responsible understanding of the operation and challenges of international taxation.
The Apple case concerns the question of whether tax rulings issued by the Irish tax administration to Irish incorporated but non-resident companies that form part of the Apple Group are compatible with EU rules on State aid and, in particular, if the General Court's holding that the Commission had failed to prove to the required standard that such aid had indeed been granted, was legally correct.
The Court set aside the General Court judgment of 15 July 2020, which had annulled the European Commission findings of State aid. The CJEU's Grand Chamber found that the General Court made errors in its understanding of the Commission's decision that led it to wrongly conclude that the Commission had failed to demonstrate that the tax rulings led to favourable tax treatment of the non-resident entities in comparison to non-integrated standalone companies and other companies dealing at arm's length. In reaching this result, the Grand Chamber judgment follows the Opinion of AG Pitruzzella delivered on 9 November 2023.
Rather than referring the case back to the General Court for reconsideration, as the AG had recommended, the Court decided to render a final judgment on the validity of the Commission decision, reinstating it in full.
This Opinion Statement seeks to explain and analyse the CJEU's reasoning both with respect to the annulment of the General Court's judgment and its final ruling on the granting of illegal state aid to the Apple Group.
The first area (scope) analyses (i) the unequal treatment of companies that the annex may create and the Commission’s delegated power to amend it; (ii) the possible conflict with double tax treaties, namely on PE profit attribution and on ownership non-discrimination rules. The second area (preliminary tax result) emphasises the need for greater coordination with other secondary law, especially the GMT directive. The third area (tax base allocation) evaluates: (i) the issues surrounding losses; (ii) the distortions caused by the transitional 'presumptive' transfer pricing rules on the tax base allocation and the conflict with CJEU case law; (iii) and shows how the unlimited power of Member States to adjust their BEFIT base may undermine the fundamental goals of the proposed Directive. Finally, the fourth area (administration and procedures) shows that (i) the two-tier procedural obligations are hard to reconcile with the spirit of the announced one-stop shop compliance mechanism, and that; (ii) legal uncertainty might arise as to the impact of the proposed Directive on domestic procedural rules.
The Engie case concerns the question whether tax rulings issued by Luxembourg to companies part of the French energy group Engie, are compatible with primary EU law, notably rules on State aid; and, whether, and to what extent, the Commission can invoke the concept of “abuse of law” for a State aid challenge of ex ante tax assessment issued by a tax authority of a Member state in the form of a tax ruling.
The Court set aside the General Court judgment of 12 May 2021, which initially upheld the European Commission findings of State aid. The CJEU’s Grand Chamber found that the European Commission did not establish to the appropriate legal standard that the tax rulings related to the zero-interest convertible loan (ZORA) provided selective advantage for the Engie entities. It did not establish the correct reference framework for assessment of State aid by way of excluding the legal basis for the tax ruling practice from the reference framework itself (Articles 164 and 166 LIR). By establishing an erroneous reference framework, the Commission relied on a wrongfully based selectivity analysis, a key step in establishing State aid for purposes of Article 107(1) TFEU. Finally, the Court established that the Commission cannot invoke national anti-abuse rules to establish selectivity in a situation where the non-application of the “abuse of law” concept by tax authorities unless the non-application of the antiabuse provisions is based on derogation from national law or administrative practice on anti-abuse provisions comparable to the case at issue (in concreto). Thus, the Grand Chamber judgment follows the Opinion of AG Kokott delivered on 4 May 2023. The Court, however, opened the door for establishing selectivity of tax rulings such as those in the Engie case, where the basis for taxation consists of pre-agreed margin (mark-up), approved by the tax administration, and not under the rules of ordinary tax law, under specific conditions.
This Opinion Statement focuses on questions of law and the relevance for the development of the
European Union State Aid law doctrine applicable to tax measures. The factual and corporate law
aspects are analysed to the extent relevant for the State aid analysis.
The comments contained in this study seek to provide a constructive technical input, including alternative solutions, which might overcome the identified issues and thus support the EU institutions to improve the proposed text.
The authors trust that such an approach will strengthen the proposed Directive prior to adoption, with particular reference to the need to comply with the general principles of EU law and coordinate with other secondary tax and non-tax legislation, as well as with the international tax framework. A thorough analysis of the relevant legal issues is necessary to ensure that secondary legislation can effectively achieve the desired goals, in line with the rule of law and further requirements established by the EU legal system.
This case covered other issues such as: i) whether the tax obligations imposed by the Italian government on service providers would fall within the scope of three directives regulating the provisions of services within the EU, which would require communicating it to the Commission prior to its enactment, and; ii) whether the domestic referring court is bound to phrase the preliminary ruling questions following the wording proposed by the parties in the domestic procedures. Those questions will not be covered in this Opinion Statement, which focuses solely on compatibility with fundamental freedoms and, specifically, with the freedom to provide services.
The first area (scope) analyses (i) the unequal treatment of companies that the annex may create and the Commission’s delegated power to amend it; (ii) the possible conflict with double tax treaties, namely on PE profit attribution and on ownership non-discrimination rules. The second area (preliminary tax result) emphasises the need for greater coordination with other secondary law, especially the GMT directive. The third area (tax base allocation) evaluates: (i) the issues surrounding losses; (ii) the distortions caused by the transitional 'presumptive' transfer pricing rules on the tax base allocation and the conflict with CJEU case law; (iii) and shows how the unlimited power of Member States to adjust their BEFIT base may undermine the fundamental goals of the proposed Directive. Finally, the fourth area (administration and procedures) shows that (i) the two-tier procedural obligations are hard to reconcile with the spirit of the announced one-stop shop compliance mechanism, and that; (ii) legal uncertainty might arise as to the impact of the proposed Directive on domestic procedural rules.