Ine Lejeune/Herman van Kesteren analyse EGC T-221/25 (TUI): ”Implicit VAT Legislation, Legal Certainty and the Right to Property”

Has the General Court opened the door to taxation without a clear legal basis? The judgment in *TUI (T‑221/25)* may mark a significant departure from settled VAT case law.

In this article, co-authored with Prof. Dr Herman van Kesteren, we analyse the Court’s acceptance that VAT obligations may be “embedded” in national law, even where no explicit provision imposes the tax. This approach sits uneasily with consistent CJEU case law requiring tax rules to be clear, precise, and expressly laid down—particularly where they impose burdens on taxpayers.

It also contrasts with ECtHR case law and the approach of the Belgian Constitutional Court, both of which accept that ambiguity in tax law must be resolved in favour of the taxpayer (*in dubio contra fiscum*). The TUI judgment appears to move in the opposite direction. The judgment further sidesteps the EU Charter, notably Articles 16 and 17, which require a proper legal basis for interferences with property and economic freedom.

If implicit taxation is sufficient, the implications go well beyond this case. We contended that the conditions for a review under Article 256(3) TFEU were clearly met. Nonetheless, the First Advocate General did not propose such a review.”

Full article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6608798

PDF version Article on Implicit VAT Legislation, Legal Certainty and the RIght to Property, van Kesteren & Lejeune

Contribution by Ine Lejeune