Use of Foreign Losses: The Advocate General Wants to Turn on the Marks & Spencer Exemption, but the ECJ Rejects the Argument and States That EU Law Constitutes Rights to Deduct Foreign Losses

Abstract:

The article will – based on Advocate General Kokott’s opinion in the case C-172/13 Commission v. United Kingdom, prior cases on deduction of foreign losses and the ECJ’s ruling in case C-172/13 – analyse the option of either deducting foreign losses or rejecting the option of deducting the losses. In Advocate General Kokott’s opinion in the Commission v. United Kingdom case, the Marks & Spencer exemption is set out to not fall within EU law on freedom of establishment. Advocate General Kokott’s opinion states that EU law does not require Member States to allow for foreign losses to be deducted even if it is possible within a specific Member State. The ECJ confirmed the prior ruling in case C-446/03, Marks & Spencer and states that the Marks & Spencer exemption is still a part of EU law and the freedom of establishment.