4.2.3.4 A group approach for EU anti-abuse provisions?

In both discussed cases there clearly is a group situation, as otherwise the PSD would not have been applicable at all. In the Deister Holding and Juhler Holding judgment, the CJEU seems to accept that the entire group can be examined for the question of whether abuse is involved. The rationale here is that non-tax reasons may apply in opting for a certain group structure, in which the effective economic activity in individual companies is possibly not available in full. In T Danmark the group idea is less clearly present, as the CJEU mainly takes the party receiving the dividend into account in assessing whether or not a conduit company exists. However, in this respect it is clearly stated that attention should be given to the set of facts of the case. Additionally, the ‘look through’ approach as prescribed in T Danmark fits within a group approach. The difference in approach might be explained by the formulation of the German national provision in the Deister Holding and Juhler Holding judgment, which explicitly referred to the extensive group approach. Given the aforementioned, in my view the discussed anti-abuse provisions should be applied using a group approach as all facts and circumstances should be taken into account. Due to this holistic approach double taxation and tax avoidance can be avoided.