On June 12, 2014 the Court of Justice of the European Union ruled in its preliminary rulings that the Dutch fiscal unity regime is not compliant with the European freedom of establishment. Subsequently to this decision, the Amsterdam Court of Appeal ruled on December 11, 2014 in three different cases that the Dutch fiscal unity regime is not compliant with the European freedom of establishment.
Following these decisions, the Deputy Minister of Finance published a policy statement on December 30, 2014. This policy statement broadens the possibility to conclude a fiscal unity for corporate income tax purposes. Prior to this new policy, foreign companies could not be concluded in a fiscal unity. Therefore, it was not possible to form a fiscal unity between Dutch resident sister companies with a foreign parent company or between a domestic parent company and its domestic sub-subsidiary which shares are held via a foreign intermediary holding company.
Due to the new policy, requests for a fiscal unity of domestic sister companies of EU/EEA resident parent companies or fiscal unity requests between domestic parent companies and domestic sub-subsidiaries which shares are held through one or more EU/EEA resident intermediate holding companies, will be granted under certain conditions.
The Ministry of Finance has announced that it will not appeal to the Supreme Court in these cases and will amend the fiscal unity regime early 2015 to facilitate the abovementioned fiscal unities in EU and EEA situations.