Opinion Statement ECJ-TF 3/2022 on the EFTA Court decision of 1 June 2022 in Case E-3/21, PRA Group Europe, on the Discriminatory Interaction between the 'Interest Barrier' and Group Contributions

Francesco Alfredo García Prats, Werner Haslehner, Volker Heydt, Eric Kemmeren, Georg Kofler, Michael Lang, João Félix Pinto Nogueira, Christiana Hji Panayi, Emmanuel Raingeard de la Blétière, Stella Raventos Calvo, Isabelle Richelle, Alexander Rust, Rupert Shiers

Publication: Scientific journalCase note

Abstract

The CFE ECJ Task Force welcomes the EFTA Court's progressive impetus on fundamental freedoms doctrine: PRA Group Europe AS makes it clear that for purposes of identifying a restriction, for establishing comparability and for justification, a combined perspective on the interaction of two sets of rules – here the interest barrier on the one hand and the group contribution regime on the other – is necessary. From that perspective, the interaction of the Norwegian rules on the "interest barrier" and on group contributions leads to unjustified discrimination in cross-border situations.

However, if asked to decide on a similar case, the CJEU might take a different approach. First, the CJEU could take a different perspective on the available grounds of justifications and, e.g., accept the coherence of the tax system as such ground. Second, Article 4 ATAD gives the Member States the option to treat an "interest barrier group" as a single taxpayer and to limit the group perspective to domestic settings. Even if such an option in the ATAD is not viewed as "exhaustive harmonization", one could wonder if the mere existence of the ATAD and the value judgments made by the EU legislature therein could lead to a different outcome in the EU (CJEU) vis-à-vis the EEA (EFTA Court).
Original languageEnglish
Number of pages12
JournalCFE Tax Advisers Europe
Issue number3/2022
DOIs
Publication statusPublished - 2022

Cite this