blishment under Article 43the La In another case, Bosal Holding B V, the Ec advocate general underlined the necessity for equal treatment of national and cross border transactions between affiliated companies _ This statement might lead to the assumption that any different treatment of cross-border transactions within the Ec in comparison to national transactions results in an unjustified breach of EC law. -only public interests of high importance can justify an interference in the basic guarantees of the treaty freedoms. But in the last few years the ECj did not accept any of the arguments brought up by the member states for ar obstacle to Ec law Conclusion Noting the ECJ advocate general s opinion in the lankhorst-Hohorst and Bosal Holding B.V. cases and the ecj decisions in the riksskatteverk and Lankhorst-Hohorst gmbh cases. the german tax authorities and the german tax legislature would be well advised to review section 1 of the german Foreign Tax Act and draft transfer pricing legislation Now is the time to check and change German tax laws with cross-border references, such as those for transfer pricing, and bring them into alignment with the guidelines of the EC Treaty. German tax law has to be systemized under the requirements of European provisions, especially the basic freedoms of the treaties. If this does not happen within the next years, German tax legislation and German tax authorities always will be at risk of practicing unlawful regulations in terms of the EC' s statutes including those for transfer pricing This warning applies to other EC member states as well. The increasing number of judgments declaring national tax law compatible with EC law should lead other EC members to realize that national tax systems within Europe have to be adjusted to the requirements of the Communitys requirements 1 cp. Eigelshoven, IWB, Case 3, Group 1, p. 1761; Bauschatz, IStR 2002, p.291,333 Koplin/Sedemund, IStR 2002, p. 120; Borstel/Brunninghaus, IStR 2001, p. 757; Brenner, KFR 2001 p 383: Menck, IWB, Case 2, p 715; Pfluger, PIStB 2001, p. 260 B141/00,BFHE195,p.398 3 Lankhorst-Hohorst GmbH, European Court of Justice, C-324/00, advocate generals opinion issued 9/26/02(11 Transfer Pricing Report 680, 11/27/02) 4 See the related article and text of the decision in this issue Case C-436/00. Riksskatteverk ECJ, Case C-436/00, Riksskatteverk, Para. 14. Section 3, Paragraph 1 ECJ Case C-436/00. Riksskatteverk Para 19 ff 8 ECj. case C-436/00. Riksskatteverk Para 24 9 ECJ Case C-436/00. Riksskatteverk. Para. 65.75 ECJ Case C-436/00. Riksskatteverk, Para. 74 ff791 (KStG) as incompatible with the freedom of establishment under Article 43--the Lankhorst-Hohorst ruling. 30 In another case, Bosal Holding B.V., the EC advocate general underlined the necessity for equal treatment of national and cross border transactions between affiliated companies. 31 This statement might lead to the assumption that any different treatment of cross-border transactions within the EC in comparison to national transactions results in an unjustified breach of EC law. 32 Only public interests of high importance can justify an interference in the basic guarantees of the treaty freedoms. But in the last few years the ECJ did not accept any of the arguments brought up by the member states for an obstacle to EC law. 33 Conclusion Noting the ECJ advocate general's opinion in the Lankhorst-Hohorst and Bosal Holding B.V. cases and the ECJ decisions in the Riksskatteverk and Lankhorst-Hohorst GmbH cases, the German tax authorities and the German tax legislature would be well advised to review Section 1 of the German Foreign Tax Act and draft transfer pricing legislation. Now is the time to check and change German tax laws with cross-border references, such as those for transfer pricing, and bring them into alignment with the guidelines of the EC Treaty. German tax law has to be systemized under the requirements of European provisions, especially the basic freedoms of the treaties. If this does not happen within the next years, German tax legislation and German tax authorities always will be at risk of practicing unlawful regulations in terms of the EC's statute--s including those for transfer pricing. This warning applies to other EC member states as well. The increasing number of judgments declaring national tax law as incompatible with EC law should lead other EC members to realize that national tax systems within Europe have to be adjusted to the requirements of the Community's requirements. _____________________________________ 1 cp. Eigelshoven, IWB, Case 3, Group 1, p. 1761; Bauschatz, IStR 2002, p. 291, 333; Köplin/Sedemund, IStR 2002, p. 120; Borstell/Brünninghaus, IStR 2001, p. 757; Brenner, KFR 2001, p. 383; Menck, IWB, Case 2, p. 715; Pflüger, PIStB 2001, p. 260 2 I B 141/00, BFHE 195, p. 398 3 Lankhorst-Hohorst GmbH, European Court of Justice, C-324/00, advocate general's opinion issued 9/26/02 (11 Transfer Pricing Report 680, 11/27/02). 4 See the related article and text of the decision in this issue. 5 Case C-436/00, Riksskatteverk. 6 ECJ, Case C-436/00, Riksskatteverk, Para. 14. Section 3, Paragraph 1 7 ECJ, Case C-436/00, Riksskatteverk Para. 19 ff. 8 ECJ, Case C-436/00, Riksskatteverk Para. 24. 9 ECJ, Case C-436/00, Riksskatteverk, Para. 65, 75. 10 ECJ, Case C-436/00, Riksskatteverk, Para. 74 ff