On X Holding and the ECJ's Ambiguous Approach towards the Proportionality Test

On 25 February 2010, the Court of Justice rendered its decision in the X Holding case. The Court ruled that the Dutch tax consolidation regime is compatible with the freedom of establishment. The territoriality principle justifies the limitations on the regime's scope of application in an intra-European Union (EU) context. Accordingly, today, it seems clear that the Dutch tax consolidation regime in its current design may be kept in place. However, the Court of Justice did not provide a clear answer to the underlying question of how the proportionality test should be interpreted under primary EU law where EU Member States raise the territoriality principle as a justification for an obstacle imposed. In this article, I address the question of how the proportionality test should be interpreted in this respect.