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Jesper Johansson
Intertax
Volume 49, Issue 11 (2021) pp. 948 – 955
https://doi.org/10.54648/taxi2021094
Abstract
This contribution examines the decision of the Court of Justice of the European Union (CJEU) of 4 July 2018 in Case C-28/17 NN A/S concerning the compatibility of a Danish rule prohibiting double deductions of losses with the freedom of establishment in Article 49 of the Treaty on the Functioning of the European Union (TFEU). In this case, the Court found the rule to be compatible with the freedom of establishment unless its application deprived the group of any effective possibility of deducting the loss in either of the two Member States involved. While this article finds merit in the Court’s reasoning, it also finds a few inadequacies mainly due to the Court disregarding differences in tax rates between Member States. Another finding is that, from a theoretical perspective, Denmark should not be required to allow the group to set off its loss considering the specific circumstances at hand in the underlying case. Furthermore, the judgment is presented as a potential trendsetter since it represents a development in the Court’s case law on rules preventing double deductions of losses, now handled in the Anti-Tax Avoidance Directive (ATAD).
Keywords
ATAD, NN A/S, CJEU, freedom of establishment, trendsetter.
Extract
In this contribution, Sweden´s favourable tax regime which awards a significantly reduced electricity tax rate to data centres is examined. The findings of the paper are applicable to other jurisdictions, such as Denmark and Finland, as they are subject to similar conditions. Data centres are, when subject to the tax regime, subject to less than 2% of the normal electricity tax tariff. Multinational tech-giants benefit heavily from it while many domestic companies (colocation centres) are excluded due to its technical design and attached administrative case law. Initial calculations indicate there is tax savings of more than SEK 500 million (circa Euro 50 million) on an annual basis. Therefore, the tax regime acts as an international tax competition tool through its fiscal state aid function while, at the same time, eroding the tax bases and business life of northern Sweden. It does not initially appear to infringe on EU state aid rules nor the principle of non-discrimination. This Illustrates that there is still some margin of freedom for individual Member States to compete through tax measures. Additionally, tax policy objectives of the tax regime are considered and analysed. In particular, the impact it has had on not only international tax competition but also the economy of local municipalities, local business life, and progressive climate goals. A critical commentary focusing on sustainability is applied throughout the paper.