On 3 December 2015, Austria filed a request for arbitration against Germany before the European Court of Justice (ECJ) on the basis of the arbitration clause contained in the double tax treaty concluded between Austria and Germany (DTT).
Art. 273 of the Treaty on the Functioning of the European Union (TFEU) provides that the ECJ shall have jurisdiction in any dispute between EU Member States which relates to the subject matter of the Treaty on the European Union or the TFEU, if the dispute is submitted to the ECJ under a special agreement between these EU Member States. Pursuant to art. 25(5) of the DTT, if a dispute cannot be settled within a period of three years under the mutual agreement procedure provided for in the DTT, then, upon the request of the taxpayer involved, the ECJ acting as arbitral tribunal shall decide the case. As far as we are aware, this is the only provision providing for the ECJ as arbitral tribunal which is contained in a double tax treaty concluded by two EU Member States. On 3 December 2015, Austria brought the first request for arbitration before the ECJ under this provision (case C-648/15). The dispute revolves around Germany qualifying payments under profit participating certificates (Genussscheine) as interest income within the sense of art. 11(2) of the DTT. The outcome of this case remains to be seen.