Cross-Border Loss Relief in the European Union Following W AG (Case C-538/20)

In W AG (Case C-538/20), the ECJ ruled that denying relief for final treaty-exempted losses of foreign permanent establishments (PEs) does not run afoul of the freedom of establishment. This article shows that a denial of relief for such losses should not be based on the incomparability of domestic and foreign treaty-exempted PEs, however, it can be justified on the basis of what the authors call a “symmetrical exercise of taxing powers”. Finally, the authors provide some predictions, assuming the ECJ continues its W AG line of jurisprudence.