Cross-Border Loss Compensation: State and Critique of the Judicature

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Abstract

Since the famous Amid case decided in December 2000, the ECJ issued several other decisions dealing with losses compensation in an international – European – context. Does this jurisprudence fit or not into the classic frame of treatment of losses compensation? Or is it rather necessary to see there a specific, new construction, bringing appropriate solutions within the European territory? In that case, are these solutions compatible with the principles of the international law? And especially, are they really satisfactory?

To answer these questions, it is necessary, at first, to call back the modalities of structuring of a tax system, such as they are brought out by the international practice. This pattern of analysis of the founding principles of the tax system will allow to bring to light the various mechanisms connected to the compensation of losses in an international context. In a second chapter, we shall describe the case-law of the European Court of Justice (ECJ) relative to the off-setting of losses, to bring to light the major principles which get free of it. Finally, we shall confront the principles brought out in this analysis with the founding principles of a fiscal system.