Lidl Belgium: Revisiting Marks & Spencer on the Branch Level

Some consider the issues in the European Court ofJustice’s Lidl Belgium (C-414/06) case to be a questionof symmetry in tax law. Others call the case‘‘Marks & Spencer revisited on the branch level.’’ In fact,both statements are correct. The question is whetherthe country of the head office must take into accountlosses of a foreign branch, even though the applicabledouble taxation convention provides for an exemptionof the branch profits in that country. Contrary to Marks& Spencer (C-446/03), which dealt with losses incurredby foreign subsidiaries (a different legal entity), LidlBelgium involves losses incurred in the same legal entity.[...]