(1)

Is national legislation which, for the purposes of the application of the limitation on the deduction of exceeding borrowing costs to members of a group, establishes ‘perfect’ consolidation of the EBITDAs of the group members (by providing, in particular, that the negative EBITDA of certain members reduces the positive EBITDA of the other members correspondingly), but only ‘imperfect’ consolidation of exceeding borrowing costs (by not permitting the exceeding borrowing costs of one group member to be offset against the ‘negative’ exceeding borrowing costs or exceeding borrowing income of another member (that is, the surplus of interest income over interest expenses)) consistent with the third subparagraph of Article 4(1) of Council Directive (EU) 2016/1164 (1) of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market, read, if appropriate, in the light of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and Articles 2, 6(1) and (3) and 9 TEU, to the extent that such legislation may result in a group of companies (located in the same State) which does not have exceeding borrowing costs on a consolidated basis (the cumulative income of resident companies in the group exceeding the cumulative interest expenses of the other resident companies in the group) nevertheless having its right to deduct interest limited solely on the ground that the group’s interest income has been received primarily by a single member and that interest expenses have been incurred by the other members, whereas if the income and expenses had been allocated proportionally among the group members, there would have been no limitation on the right to deduct interest for those members?

(2)

Does the third subparagraph of Article 4(1) of Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market have direct effect and may the national court or tribunal apply it directly if the Member State has chosen the consolidation option for groups of companies?