ECJ-Recent Developments in Direct Taxation 2013

S. 150I. Introduction

Issues concerning fiscal unities and other group consolidation regimes with companies established in another Member State have already been decided by the ECJ in other cases, see e.g. the Papillon and X Holding cases. Nevertheless, a number of open questions remain. Some of these questions will (hopefully) be answered in the joined pending Netherlands Cases C-39/13 (SCA Group), C-40/13 (X AG) and C-41/13 (MSA International). Unlike the X Holding case, these cases do not deal with the issue of consolidating the results of a company resident in another Member State with the results of a company established in the Netherlands. The common issue in the current pending cases is whether, in any case, it is possible to opt for a Netherlands fiscal unity between companies established in the Netherlands and to consolidate their results if one or more group companies in the relevant chain is established in another Member State. Therefore, the cases are more closely linked with the Papillon case than the X Holding case, although the latter case should not be neglected, as will be argued below.

This paper restricts itself to these fiscal unity cases, although the author also discu...