In 2014 the European Commission began in-depth State aid investigations into the corporate tax affairs of well-known multinational companies—Amazon, Apple, Fiat Finance and Trade, and Starbucks. In late 2014, the Commission announced that it was also investigating tax rulings agreed by all EU Member States between 2010 and 2013. In the course of the investigations, the Commission has indicated that the market economy operator principle (MEOP) should be applied to assess whether companies’ corporate tax arrangements are market-conforming. The MEOP test appears to have been applied by assessing whether the methods used to allocate profit between subsidiaries of the same corporate group are on an arm’s-length basis. Although the OECD has set out guidelines on how to apply the arm’s-length principle, as discussed in this article, the Commission appears to regard conformity with the OECD’s guidance as not necessarily sufficient to demonstrate compliance with the MEOP. This article discusses how lessons from other areas of competition law and from regulated industries, supported by economic and financial analysis, can provide valuable insights into the application of the MEOP test to assess whether companies’ corporate tax arrangements are market-conforming.
Keywords: Advantage, Selectivity