Editorial: Curia Locuta, Causa Finita: Some Further Conclusions from WAG

Abstract

The Court’s decision in W AG on the cross-border utilization of treaty-exempt foreign losses has not only turned its back on Lidl Belgium and sparked an intense debate not only on the implications for other landmark cases, such as Marks & Spencer and K, but also on the transparency, certainty, and clarity regarding of the Court’s (substantive) ‘overruling’ of its precedents. A number of key issues following W AG have now been addressed by the German Bundesfinanzhof. In two recent judgments, it dealt with the standard of comparability established by W AG and the potential impact of the principle of equality in the light of Article 20 of the Charter and Article 3 of the German Basic Law and the ability-to-pay principle on the cross-border utilization of losses. Comparability, Marks & Spencer, Lidl Belgium, Timac Agro, Bevola, W AG, Charter of Fundamental Rights, Principle of Equality, Fallback Clause