CJEU – Recent Developments in Direct Taxation 2016

1. S. 119Introduction

In this contribution, the author will discuss three cases. The first case, Case C-399/16 (X NV) is a case which has been inspired by the Groupe Steria decision and is closely connected with the case which is discussed by Daniel Smit in a separate chapter of this book, Case C-398/16 (X BV). The main issue in Case C-399/16 (X NV) is whether the Groupe Steria decision implies that a Dutch resident parent company cannot be denied the right to take into account currency losses in respect of a UK resident subsidiary. The Netherlands has denied this right on the basis of the Dutch participation exemption. The possible inconsistency with EU law has been founded on the idea that a Dutch resident parent company could have taken into account currency losses if the UK resident subsidiary had been a Dutch resident subsidiary with a permanent establishment (PE) in the UK and that subsidiary had been included in a fiscal unity with its Dutch resident parent company. Can this single element of the Dutch fiscal unity regime be relied on because of the Groupe Steria decision? This per-element approach may be relevant not only for the Netherlands, but for all EU Member States and EEA M...