Adrift between Scylla and Charybdis? The trust caught between a civil law rock and a fiscal hard place

Abstract

In a seminal case, the EFTA Court has ruled in Olsen that a trust, as a form of establishment, may fall within the scope of both the rules on the freedom of establishment and the rules concerning the free movement of capital. Therefore, the Olsen judgment is also of significant importance regarding European Union (EU) law. However, this important judgment raises questions regarding the private international law and tax law treatment of trusts, since different EU Member States have adopted special tax rules concerning trusts. Especially, the question to what extent trusts may be used to carry on ‘genuine economic activities’ is relevant in this respect.