The Commission has referred Germany to the European Court of Justice for excluding certain non-resident companies from the benefits of its corporation tax fiscal unity regime. Under German law, a company cannot be part of a fiscal unity if its registered office is outside Germany even if its place of effective management is in Germany.

In practice, even if such a company is fully liable to tax in Germany, it cannot benefit from the advantages of a fiscal unity regime such as the offsetting of profits and losses within the fiscal unity in Germany. According to the Commission, this breaches EU rules on the freedom of establishment and has referred Germany to the Court of Justice.