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Case T-131/16 RENV Belgium v Commission · Annotation by Julie Leroy journal article

Annotation of the Judgment of the General Court (Second Chamber, Extended Composition) of 20 September 2023 in Case T-131/16 RENV Belgium v Commission

Julie Leroy

European State Aid Law Quarterly, Volume 23 (2024), Issue 2, Page 206 - 211

The Excess Profit Ruling-saga goes all the way back to 2016, when the European Commission opened its formal investigation into the alleged aid scheme. More than seven years and several judgments later, the General Court concludes that the Commission correctly decided that the Belgian State granted unlawful (and incompatible) State aid through the Excess Profit Ruling-scheme. In the annotated judgment, the General Court focuses extensively on the selectivity analysis. The core of its analysis lies in the argument that the Advance Ruling Commission, when granting an Excess Profit Ruling, did not apply the rules on profit adjustments contained in the corporate income tax system (more precisely Article 185(2)(1)(b) of the 1992 Code on Income Taxation). This deviation from the reference system led, according to the Commission and the General Court, to a selective advantage. After discussing the judgment, an outlook on the continuation of the saga is given, focusing both on the appeal against the annotated judgment and on the faith of the individual investigations into Excess Profit Rulings.

The Fiat Case and a Judicial Epilogue in the Tax Rulings Saga · Joined Cases C-885/19 P, C-898/19 P Fiat Chrysler Finance Europe v Commission · Annotation by Theodoros G. Iliopoulos journal article

Annotation on the Judgment of the Court of Justice of 8 November 2022 in Joined Cases C-885/19 P and C-898/19 P Fiat Chrysler Finance Europe v Commission

Theodoros G. Iliopoulos

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 188 - 192

On 8 November 2022, the Court of Justice (appellate body) published its judgment in Joined Cases C‑885/19 P and C‑898/19 P that dealt with the tax ruling that Luxembourg had granted to the group Fiat Chrysler Finance Europe. The judgment annulled the Commission’s 2015 decision that found that the granting of this tax ruling constitutes illegal State aid and required Luxembourg to recover the incompatible and unlawful aid. With this judgment, the concept of ‘selectivity’ in State aid, at least with regards to tax measures, is delineated, and it is revealed to be narrower than it seemed. The arm’s length principle does not form part of State aid law, unless national law gives a concrete expression to it, and the Commission can only rely upon the principle of non-discrimination to assess the national rules that establish and determine the application of the arm’s length principle. This is the judicial epilogue of the Fiat case and of the saga of the tax rulings – unless the exact delineation of the powers of the Commission opens a new chapter in the future.

Magnetrol v Commission: When Do Advance Tax Rulings Become an Aid Scheme under Article 1(d) Regulation (EU) 2015/1589 · Case C-337/19 P Magnetrol v Commission · Annotation by Benedikt Freund and Moritz Seiler journal article

Annotation on the Judgment of the Court (Fourth Chamber) of 16 September 2021 in Case C-337/19 P Commission v Belgium and Magnetrol

Benedikt Freund, Moritz Seiler

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 302 - 309

In its decision of 14 February 2019, the General Court declared that the Commission had wrongly classified the Belgian ‘excess profit exemption system’ as an aid scheme according to Article 1(d) of Regulation 2015/1589. Allowing the Commission’s appeal, the Court of Justice found that the concept of an aid scheme according to Article 1(d) of Regulation (EU) 2015/1589 also encompassed a consistent administrative practice of a Member State tax authority. As a result, even where a Member State’s tax legislation itself is in compliance with State aid rules, the Commission is now in a position to establish the existence of an aid scheme, rather than having to prosecute every case individually, if a Member State tax authority has issued a significant number of (advance) tax rulings that deviate from its compliant legislation. After a series of mixed results in tax-related State aid cases, Magnetrol represents an important win for the Commission. We anticipate that its impact will be most pronounced in Member States where a single central authority is in charge of issuing tax rulings and tax collection (centralised model of tax administration).

Can Selectivity Result from the Application of Non-Selective Rules? journal article

The Case of Engie

Phedon Nicolaides

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 15 - 28

This paper identifies a significant shift in the approach for determining whether a tax measure is selective. The European Commission, in its decisions on tax rulings, has found that the selective nature of the rulings stemmed from the fact that they endorsed arrangements whose terms deviated from those that would have been agreed under normal conditions of competition. Unlike its other decisions on tax rulings, the Commission in the Engie case does not examine whether Engie benefitted from treatment that was not available to other companies. Instead, the Commission bases its finding of selectivity on the fact that Engie minimised its tax liability. This is an ‘outcome-based’ approached rather than a ‘treatment-based’ approach which requires comparison between companies in similar situations. Without a benchmark of comparison, an outcome-based approach is meaningless. In addition, the Commission breaks new ground by finding a selective advantage in favour of Engie in the non-enforcement by Luxembourg of anti-abuse rules. The Commission asserts that Luxembourg should have refused to issue the tax ruling. Keywords: Selectivity; tax rulings; anti-abuse rules.

The Rise of an (Autonomous) Arm’s Length Principle in EU State Aid Rules? journal article

Fausta Todhe

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 249 - 263

In its recent State aid Decisions, the Commission claimed that an (autonomous) arm’s length principle, independent from the one originating in the OECD framework, is embedded in Article 107(1) TFEU as a tool to ensure the protection of the principle of equality. Considered a novelty, the Commission’s approach has been challenged not only by the appeals submitted from the interested parties but also from a number of practitioners and academics. Although the last words remain still with the Courts, the purpose of this article is to join the debate and bring a personal view on the matter. It therefore reviews the recent State aid Decisions on individual aid in order to determine the potential embedding of an (autonomous) arm’s length principle in European State aid law. Keywords: Fiscal State aid; Arm’s length principle; Tax rulings

The Excess Profit Exemption System · Joined Cases T-131/16 and T-263/16 Belgium v Commission · Annotation by François-Guillaume de Lichtervelde journal article

Annotation on the judgment of the General Court (Seventh Chamber, Extended Composition) of 14 February 2019 in Joined Cases T‑131/16 Belgium v Commission and T-263/16 Magnetrol v Commission

François-Guillaume de Lichtervelde

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 382 - 390

As the first State aid case involving tax rulings to reach the General Court, the judgment regarding the Belgian ‘excess profit exemption’ regime was highly anticipated. Instead of investigating separately the tax rulings granting the exemption, the Commission had intended to frame the case at the higher level and went after an ‘aid scheme’. The Court did not follow this qualification and set aside the Commission’s Decision. While the judgment inflicted a blow to the enforcer’s approach, the Court did not take a position on the most sensitive questions raised by this case. The boundaries of EU State aid control with respect to tax rulings thus still remain unclear. However, the judgment established that Belgium enjoyed a margin of discretion in adopting the rulings that granted the excess profit exemption. This finding, which was fatal to the Commission’s scheme-based theory, may now support the Commission’s case that the rulings are ‘selective’ and could therefore amount to State aid. In that sense, the judgment may ultimately have done more harm than good to Belgium’s case against the Commission’s investigation. Keywords: Excess Profit Exemption; Tax Rulings; Aid Scheme; Individual Aid; Belgium; Discretion; Selectivity.

Latest Developments on the Interpretation of the Concept of Selectivity in the Field of Corporate Taxation journal article

Lorenzo Panci

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 353 - 367

The notion of material selectivity is key to defining the reach of State aid control. I will argue that the ECJ progressively endorsed an increasingly extensive interpretation of the selectivity requirement (which culminated in the Gibraltar judgment), making it easier for the European Commission to demonstrate its fulfilment. One of the consequences of this evolution was that State aid control became easier to use to pursue policy objectives. This was especially true in the context of taxation, despite the lack of harmonisation in this field. However, at the outset of the Gibraltar judgment, the General Court appeared to have taken a position that preserves the policy choices made at national level and this was possible by interpreting the selectivity condition as more difficult to fulfil. On the other hand, it appears that the Commission reacted to the Gibraltar judgment by using State aid control to pursue its policy objectives, in particular to contrast harmful tax competition among MS. Will the European Court of Justice endorse the approach taken by the Commission? Keywords: Selectivity; Gibraltar; Tax Rulings; Tax Competition.

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.

Tax Rulings and State Aid Qualification: Should Reality Matter? journal article

Adrien Giraud, Sylvain Petit

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 233 - 242

In its decisional practice developing tax ruling, the European Commission uses a theoretical reasoning that can in some instances appear somewhat disconnected from the facts of the cases. Indeed, all these cases boil down to one single determination (whether the concerned transfer prices were – or not – set at market levels) and the satisfaction of all the conditions for the existence of State aid derive directly from this (rather theoretical) question alone. Little to no account taken of important factual elements (such as for example the context of international fiscal competition) and several conclusions appear to be presumed rather than demonstrated (for example the distortion of competition). One therefore remains with the general impression that State aid law remains into a sort of exception to the rest of competition law: an area of law where reality does not (really) matter. Keywords: Tax Ruling; Selectivity; Advantage; Distortion of Competition; Counterfactual.