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The ability-to-pay principle as a part of the CJEU’s comparability analysis in cross-border corporate loss relief cases

Isojunno, Vilma LU (2021) JAEM03 20211
Department of Law
Faculty of Law
Abstract
This thesis examines the CJEU’s comparability analysis regarding corporate cross-border loss transfer cases and the use of ability-to-pay principle as a part of the analysis. In the beginning of the thesis the basic concepts relating to internal market and taxation and underlying reasons for difficulties in cross-border loss transfer are explained and the importance of loss transfer is defended. After that, the comparability analysis conducted by the CJEU are examined and two significant turning points in the case law are highlighted. In the final part the ability-to-pay principle is considered from different perspectives such as its background and justification for using the principle is examined and the most notable arguments for and... (More)
This thesis examines the CJEU’s comparability analysis regarding corporate cross-border loss transfer cases and the use of ability-to-pay principle as a part of the analysis. In the beginning of the thesis the basic concepts relating to internal market and taxation and underlying reasons for difficulties in cross-border loss transfer are explained and the importance of loss transfer is defended. After that, the comparability analysis conducted by the CJEU are examined and two significant turning points in the case law are highlighted. In the final part the ability-to-pay principle is considered from different perspectives such as its background and justification for using the principle is examined and the most notable arguments for and against the use of the principle is covered.

The main findings of the thesis are that the ability-to-pay principle is a “new step” employed by the CJEU in its comparability analysis, and it is also necessary part of the analysis from the viewpoint of the functioning of the internal market. Companies face greater risk when establishing secondary establishment in other Member States if their ability-to-pay is not taken sufficiently into account, as the case has previously been. Although not explicitly stated by the CJEU, the ability-to-pay principle is capable of being considered as a general principle of EU law. It also has a clear scope of application and aim of enhancing the functioning of the single market as well as it creates clear and objective rule for establishing comparability. (Less)
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author
Isojunno, Vilma LU
supervisor
organization
course
JAEM03 20211
year
type
H2 - Master's Degree (Two Years)
subject
language
English
id
9052318
date added to LUP
2021-06-11 16:09:55
date last changed
2021-06-11 16:09:55
@misc{9052318,
  abstract     = {{This thesis examines the CJEU’s comparability analysis regarding corporate cross-border loss transfer cases and the use of ability-to-pay principle as a part of the analysis. In the beginning of the thesis the basic concepts relating to internal market and taxation and underlying reasons for difficulties in cross-border loss transfer are explained and the importance of loss transfer is defended. After that, the comparability analysis conducted by the CJEU are examined and two significant turning points in the case law are highlighted. In the final part the ability-to-pay principle is considered from different perspectives such as its background and justification for using the principle is examined and the most notable arguments for and against the use of the principle is covered.

The main findings of the thesis are that the ability-to-pay principle is a “new step” employed by the CJEU in its comparability analysis, and it is also necessary part of the analysis from the viewpoint of the functioning of the internal market. Companies face greater risk when establishing secondary establishment in other Member States if their ability-to-pay is not taken sufficiently into account, as the case has previously been. Although not explicitly stated by the CJEU, the ability-to-pay principle is capable of being considered as a general principle of EU law. It also has a clear scope of application and aim of enhancing the functioning of the single market as well as it creates clear and objective rule for establishing comparability.}},
  author       = {{Isojunno, Vilma}},
  language     = {{eng}},
  note         = {{Student Paper}},
  title        = {{The ability-to-pay principle as a part of the CJEU’s comparability analysis in cross-border corporate loss relief cases}},
  year         = {{2021}},
}