Equality of treatment by the ECJ since the Marks and Spencer case

A dilemma faced by the Court was whether the treatment of domestic tax situations and cross-border tax situation should be the same. ECJ has several times expressed its opinions in respect of transfer of losses from one EU jurisdiction to another. The treatment of losses before and after the M&SII case is not the same due to the applicability of the extended rule of reason doctrine. The result of this was that the positions, which were more likely to be required to be treated equally within Bosal reasoning, were allowed to be treated differently. The Court has relaxed the criteria for the acceptance of justifications. In the Bosal case, the Court has rejected them purely on formal grounds. In the later cases, the Court has started accounting the fiscal interests of Member States, where their tax interests were involved; provided more in-depth analysis of grounds of public interest and introduced the possibility to invoke more than one justification; has started to respect the fiscal territorial jurisdiction of Member States, unless the issue of terminal losses arise.