The influence of national group regimes on the application of the Marks & Spencer exception – Assessing the applicability of the exception to the French tax consolidation regime and the compatibility of national evidentiary requirements with CJEU’s case law
(2025) HARN60 20251Department of Business Law
- Abstract
- On 15 April 2025, the Conseil d’État (French Supreme Tax Court), for the first time, referred preliminary questions to the CJEU to determine whether the Marks & Spencer exception can apply within the French tax consolidation regime. This unprecedented referral follows years of internal divergences over the scope of a case law principle that is both central and controversial: the right, under certain conditions, for a parent company to deduct in its State of residence the final losses of a subsidiary established in another Member State, when such losses can no longer be used locally.
In this context, this master’s thesis addresses the following question: is the Marks & Spencer exception applicable to the French tax consolidation regime... (More) - On 15 April 2025, the Conseil d’État (French Supreme Tax Court), for the first time, referred preliminary questions to the CJEU to determine whether the Marks & Spencer exception can apply within the French tax consolidation regime. This unprecedented referral follows years of internal divergences over the scope of a case law principle that is both central and controversial: the right, under certain conditions, for a parent company to deduct in its State of residence the final losses of a subsidiary established in another Member State, when such losses can no longer be used locally.
In this context, this master’s thesis addresses the following question: is the Marks & Spencer exception applicable to the French tax consolidation regime and, if so, are the evidentiary requirements applied in France compatible with those established by the CJEU? To answer these questions, the master’s thesis traces the development of the exception through the CJEU’s case law, with particular attention to Commission v UK, Holmen, and W AG. It then examines how the exception has been received in France: for a long time rejected by the Conseil d’État on the basis of an autonomous reading of X Holding, it has more recently been acknowledged by certain lower courts, notably the Paris Administrative Court of Appeal.
These developments provide a better understanding of the legal issues raised by the preliminary questions of 15 April 2025, which focus on two main points: first, whether the fact that the parent company’s Member State has waived its taxing rights over the results of the non-resident subsidiary precludes the comparability of situations; second, whether, if comparability is established, the Marks & Spencer exception can be invoked to challenge the denial of loss deduction under a tax consolidation regime. Beyond this long-awaited clarification, the broader imperative is clear: to ensure that the Marks & Spencer exception can be applied effectively within the EU, regardless of the technical features of the national group regime concerned. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9192338
- author
- Bazin, Guillaume LU
- supervisor
- organization
- course
- HARN60 20251
- year
- 2025
- type
- H1 - Master's Degree (One Year)
- subject
- keywords
- Marks & Spencer exception, national group regimes, tax consolidation, final losses, freedom of establishment, comparability, CJEU, preliminary ruling.
- language
- English
- id
- 9192338
- date added to LUP
- 2025-06-03 13:08:49
- date last changed
- 2025-06-03 13:08:49
@misc{9192338,
abstract = {{On 15 April 2025, the Conseil d’État (French Supreme Tax Court), for the first time, referred preliminary questions to the CJEU to determine whether the Marks & Spencer exception can apply within the French tax consolidation regime. This unprecedented referral follows years of internal divergences over the scope of a case law principle that is both central and controversial: the right, under certain conditions, for a parent company to deduct in its State of residence the final losses of a subsidiary established in another Member State, when such losses can no longer be used locally.
In this context, this master’s thesis addresses the following question: is the Marks & Spencer exception applicable to the French tax consolidation regime and, if so, are the evidentiary requirements applied in France compatible with those established by the CJEU? To answer these questions, the master’s thesis traces the development of the exception through the CJEU’s case law, with particular attention to Commission v UK, Holmen, and W AG. It then examines how the exception has been received in France: for a long time rejected by the Conseil d’État on the basis of an autonomous reading of X Holding, it has more recently been acknowledged by certain lower courts, notably the Paris Administrative Court of Appeal.
These developments provide a better understanding of the legal issues raised by the preliminary questions of 15 April 2025, which focus on two main points: first, whether the fact that the parent company’s Member State has waived its taxing rights over the results of the non-resident subsidiary precludes the comparability of situations; second, whether, if comparability is established, the Marks & Spencer exception can be invoked to challenge the denial of loss deduction under a tax consolidation regime. Beyond this long-awaited clarification, the broader imperative is clear: to ensure that the Marks & Spencer exception can be applied effectively within the EU, regardless of the technical features of the national group regime concerned.}},
author = {{Bazin, Guillaume}},
language = {{eng}},
note = {{Student Paper}},
title = {{The influence of national group regimes on the application of the Marks & Spencer exception – Assessing the applicability of the exception to the French tax consolidation regime and the compatibility of national evidentiary requirements with CJEU’s case law}},
year = {{2025}},
}