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Whether or Not to Bite the Apple: Some Implications of the August 2016 Commission Decision on Irish Tax Benefits for Apple journal article

Eugene Stuart

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 209 - 232

Every State aid regulatory decision in the EU has political, economic and administrative dimensions in addition to the application of legal rules and principles. The Apple Decision of August 2016, imposing a record recovery order against Ireland, is no exception. In the context of the use of the EU State aid rules to promote fair tax competition, and contribute indirectly to failed tax harmonisation, this article looks in detail at the Apple Decision together with its implications in the context of EU State aid and taxation policy and some of the sensitive political repercussions arising from the Decision. State aid in the EU via tax measures continues to represent about one-third of all State aid. Accordingly, it is also topical and useful to explore the logic and motivation of the European Commission in treating tax measures as liable to give rise to State aid concerns (and as priority and major cases) in the context of the Apple Decision and the soft law measures, Commission decisions and case law which preceded it. The case is currently on appeal and, although the Irish arguments do not seem strong at first sight, on several points the position of the Apple entities and of the Irish tax authorities will need to be analysed in detail by the Court in response to the Irish arguments and there is likely to be some scope for certain Commission positions in the case to be over-turned on points of fact, if further proven in the appeal. In reviewing the Apple Decision, the EU Courts will soon have an important (or even historic) opportunity to decide whether or not to further support the legality of the Commission’s continuing expansion of its State aid remit in regard to allegedly unfair tax measures. Keywords: Tax Rulings; Unfair Tax Competition; Tax Harmonisation; Arm’s Length Principle; Record State Aid Recovery.


State Aid Regulation and Future Industrial Policy in Ukraine journal article

Eugene Stuart, Iana Roginska

European State Aid Law Quarterly, Volume 15 (2016), Issue 1, Page 59 - 71

The regulation of State aid can pose a range of challenges for policy-makers in the areas of industrial and economic development within the countries where such rules apply. These difficulties are not limited to European Union (EU) Member States. They also concern an increasing number of non-EU countries, to which EU State aid rules have been extended via various trade agreements. This article examines these challenges in the context of Ukraine, which adopted State aid legislation in July 2014. This legislation will take effect from 2017, with the Anti-Monopoly Committee of Ukraine acting as national State aid regulator. There is generally a strong tradition of State support for business and industry in Ukraine. The trend of future intervention remains unclear. With public finance so constrained and the present Government’s policy less favourable towards State aid, less scope for future measures is to be expected. The importance of the present economic crisis in Ukraine could act as a catalyst for change in Government policy. What is clear is that the State aid regulator in Ukraine will need extensive insight into economic and industrial policy to enable successful implementation of State aid legislation. Furthermore, a campaign creating create awareness about State aid policies, as well as limitations, cannot begin soon enough. The authors conclude, that after a potentially difficult start in the next 3 to 4 years, the Ukrainian State aid regulatory system could bring important benefits to the country through improving the management of public finances, creating a more competitive, and better-functioning, economy and by ensuring that support measures to the business sector (whatever form they take) are indeed justifiable, as well as leading to tangible economic growth in the Ukraine. Keywords: Ukraine; Industrial Policy; Emerging State aid system; Association Agreement; ECT; Public finance management.

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