Group Taxation in the European Union Unitary vs. Per-Country Approach

Abstract

A consolidated taxation of groups of companies located in different EU Member States corresponds with the idea of an internal market within the European Union as stated in Article 3 (3) of the Treaty on European Union. However, as Community Law now stands, the Member States are not obliged in principal to provide for a taxation of cross-border groups on a consolidated basis. Restrictions of the freedom of establishment (Article 49 of the Treaty on the Functioning of the European Union) can often be justified by the needs of a Member State to safeguard its powers of taxation. But the current group taxation rules of Member States, which in most cases follow a per-country approach, are not necessarily in line with Community Law. For example, the German group taxation rules for inbound and outbound situations consist of various requirements which could be regarded as potential violations of the freedom of establishment under existing ECJ judgments on group taxation. The article describes the current status of Community Law and provides several examples of potential violations of the German group taxation rules.