On 25 October 2017, an Advocate General of the European Court of Justice published his opinion in which the so-called per-element approach was declared applicable to the fiscal unity regime of the Dutch corporate income tax system. By doing so, the Advocate General did not follow the reasoning that has been taken by the Supreme Court of the Netherlands so far. The Advocate General opined that the Dutch fiscal unity regime conflicted with EU law in some respects. If the European Court of Justice accepts the per-element approach, the Netherlands would be forced to award certain fiscal unity benefits in EU/EEA situations as well. As a result, the Dutch fiscal unity regime would effectively be broadened to become a cross-border regime as far as those benefits are concerned.
Following up on the opinion of the Advocate General, the Dutch Ministry of Finance immediately announced emergency remedial legislation in the areas of dividend withholding tax and corporate income tax. Based on the emergency remedial measures, certain dividend withholding tax and corporate income tax facilities will have to be applied as if there were no fiscal unity, due to which some tax benefits for fiscal unities will be restricted in domestic situations as well. If the European Court of Justice accepts the per-element approach, the proposed emergency remedial legislation will come into force with retroactive effect to 25 October 2017, 11 a.m. Any companies that are members of a fiscal unity would be well advised to review whether the emergency remedial legislation will affect their group structure.