Loss Compensation for Companies and Corporate Groups in the European Union

The thesis analyses to what extent the Treaty freedoms require the EU Member State to provide loss compensation to corporate groups and to companies with permanent establishments in the European Union. The thesis is divided into eight chapters. The first part of the thesis presents the subject, the research questions, the motivation for the choice of subject, delimitation and legal philosophy and methods.

Chapter 2 introduces the subject on Member State-level. This chapter introduces the challenges that are caused by - on the one hand - the asymmetrical treatment of profits and loss and - on the other hand - the fundamental principles of taxation in respect of losses. This chapter further introduces the most common methods adopted in order to provide loss compensation. Finally, the chapter elaborates on the challenges that arise in relation to loss compensation when corporate groups and companies exercise cross-border activity.

Chapter 3-5 introduces the four Treaty freedoms and explain how the European Court of justice examines whether a nation legislation on direct taxation violates a Treaty freedom. Chapter 3 introduces the four Treaty freedoms and explains how the European Court of Justice interprets the concept of restriction in respect of national legislation on direct taxation. On that basis, chapter 4 elaborates on the restriction test, which comprises the disadvantage test and the comparability test, while chapter 5 elaborates on the justification test.

Chapters 6-7 analyses the case law of the European Court of Justice on loss compensation. Chapter 6 analyses to what extent the Treaty freedoms require a Member State to provide loss compensation to corporate groups in cross-border situations. This chapter analyses the case law on horizontal loss compensation schemes and national provisions providing for loss compensation in the context of a merger. Chapter 7 analyses to what extent a Member State is required to provide loss compensation to a company with a permanent establishment. This chapter analyses the case law concerning deductions of losses during the loss-making income year, deduction of losses by means of horizontal loss compensation schemes, reincorporation of losses previously deduction and the deferral of taxation as a consequence of losses.

Chapter 8 contains the conclusion on the thesis. This chapter concludes to what extent the Treaty freedoms require the Member States to provide loss compensation to corporate groups in cross-border situations and to a company with a permanent establishment.