Reverse Subsidiarity and EU Tax Law: Can Member States Be Left to Their Own Devices?
British Tax Review, Vol. 3, pp. 261-301, 2010
36 Pages Posted: 16 Sep 2010
Date Written: March 1, 2010
Abstract
This article examines cross-border loss relief for group companies in the context of European Union law and considers how this has affected Member States such as the UK. First, the failed and pending legislative initiatives for cross-border group relief are considered; namely, the Draft Directive on Cross-Border Loss Relief and the Common Consolidated Corporate Tax Base. The case law of the Court of Justice is then analysed in an attempt to assess whether some of the principles set out in these legislative initiatives found their way to Member State laws through the Court's jurisprudence. Following this, the judicial and legislative response to the Marks & Spencer judgment in the UK are critically assessed. It is questioned whether lack of Union competence has indeed stifled developments in this area. It is also questioned whether, at least in this context, developments generated through case law bring about a satisfactory result. The author concludes with thoughts as to the UK experience.
Keywords: EU law, UK tax law, group relief
JEL Classification: K34
Suggested Citation: Suggested Citation