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Gränsöverskridande resultatutjämning - Förhållandet mellan svenska och EU-rättsliga intressen

Göransson, Alexandra LU (2011) JURM01 20102
Department of Law
Abstract
A fundamental freedom in the European Union is the freedom of establishment. As part of the development of the internal market, it is essential to simplify the possibilities for EU-citizens who wish to establish their business within the internal market. Cross-border balancing within group companies is a way of helping companies to use the internal markets full potential in a more effective way. Therefore each company group would be counted as one taxation subject for corporate income tax. This would enable a better opportunity to balance profit and loss within the group company.

A problem with the harmonization of cross-border balancing is that this would need collaboration within the EU. However, this has proved to be difficult to... (More)
A fundamental freedom in the European Union is the freedom of establishment. As part of the development of the internal market, it is essential to simplify the possibilities for EU-citizens who wish to establish their business within the internal market. Cross-border balancing within group companies is a way of helping companies to use the internal markets full potential in a more effective way. Therefore each company group would be counted as one taxation subject for corporate income tax. This would enable a better opportunity to balance profit and loss within the group company.

A problem with the harmonization of cross-border balancing is that this would need collaboration within the EU. However, this has proved to be difficult to establish. A reason for this lack of harmonization is that the member states have not agreed on how the harmonization would take place, something that is based on conflicts of interests, especially regarding the national tax base and its importance for the national economy.

The European Court of Justice, ECJ, has ruled that the practice of EU law is superior over national law. The lack of harmonization can therefore imply that Swedish law can be contrary to the EU law. Consequently, this leads to a situation in which the ECJ in accordance to the preliminary rulings can judge each country’s compatibility. This judicial system can be questioned since in the ECJ only compares the compatibility for each specific question when asked for a preliminary ruling. The ECJ is therefore obligated to compare only the relevant rules and not the whole legislation. It also leads to legal uncertainty when the other member states hereafter interpret the ECJ ruling and in accordance with their own national legislation, which can lead to incorrect assumptions and decisions.

Due to the harmonization problem, The Swedish Supreme Administrative Court, on March 11 2009, ruled in ten cases within this subject. The Supreme Administrative Court’s rulings led to the imposition of Section 35a of the Swedish tax legislation. In spite of the newly harmonized regulation, the legislative process has received criticism. Mostly because it is based on the Supreme Administrative Court’s ten judgments, which in turn have been criticized cases because they did not seek preliminary rulings from the ECJ.

In this paper I have analyzed the cases from the ECJ and relevant doctrine, proving that there is a conflict of interests between Swedish and EU law. This has created an uncertain situation in relation to the principle of legal security. Especially for the so called small and medium sized companies, which in comparison to lager companies, have a smaller opportunity to investigate the complex requirements within cross-border corporate income tax. (Less)
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author
Göransson, Alexandra LU
supervisor
organization
course
JURM01 20102
year
type
H2 - Master's Degree (Two Years)
subject
language
Swedish
id
2062925
date added to LUP
2011-08-22 16:51:49
date last changed
2011-08-22 16:51:49
@misc{2062925,
  abstract     = {A fundamental freedom in the European Union is the freedom of establishment. As part of the development of the internal market, it is essential to simplify the possibilities for EU-citizens who wish to establish their business within the internal market. Cross-border balancing within group companies is a way of helping companies to use the internal markets full potential in a more effective way. Therefore each company group would be counted as one taxation subject for corporate income tax. This would enable a better opportunity to balance profit and loss within the group company.   

A problem with the harmonization of cross-border balancing is that this would need collaboration within the EU. However, this has proved to be difficult to establish. A reason for this lack of harmonization is that the member states have not agreed on how the harmonization would take place, something that is based on conflicts of interests, especially regarding the national tax base and its importance for the national economy.  

The European Court of Justice, ECJ, has ruled that the practice of EU law is superior over national law. The lack of harmonization can therefore imply that Swedish law can be contrary to the EU law. Consequently, this leads to a situation in which the ECJ in accordance to the preliminary rulings can judge each country’s compatibility. This judicial system can be questioned since in the ECJ only compares the compatibility for each specific question when asked for a preliminary ruling. The ECJ is therefore obligated to compare only the relevant rules and not the whole legislation. It also leads to legal uncertainty when the other member states hereafter interpret the ECJ ruling and in accordance with their own national legislation, which can lead to incorrect assumptions and decisions.    

Due to the harmonization problem, The Swedish Supreme Administrative Court, on March 11 2009, ruled in ten cases within this subject. The Supreme Administrative Court’s rulings led to the imposition of Section 35a of the Swedish tax legislation. In spite of the newly harmonized regulation, the legislative process has received criticism. Mostly because it is based on the Supreme Administrative Court’s ten judgments, which in turn have been criticized cases because they did not seek preliminary rulings from the ECJ.

In this paper I have analyzed the cases from the ECJ and relevant doctrine, proving that there is a conflict of interests between Swedish and EU law. This has created an uncertain situation in relation to the principle of legal security. Especially for the so called small and medium sized companies, which in comparison to lager companies, have a smaller opportunity to investigate the complex requirements within cross-border corporate income tax.},
  author       = {Göransson, Alexandra},
  language     = {swe},
  note         = {Student Paper},
  title        = {Gränsöverskridande resultatutjämning - Förhållandet mellan svenska och EU-rättsliga intressen},
  year         = {2011},
}