On 24 September 219, the General Court (“GC”) delivered its long awaited judgments on the European Commission’s (“Commission”) decisions finding that tax rulings granted to Starbucks and Fiat constituted State aid. The GC annulled the Commission’s decision on Starbucks but upheld the Commission’s decision on Fiat. The judgements confirm that State aid rules enable the Commission to review whether tax rulings endorsing transfer pricing arrangements are in line with the arm’s length principle. However, in order to find that such tax rulings constitute State aid, the Commission must clearly show that they reduced their beneficiaries tax burden and cannot limit itself to pointing out inaccuracies or mistakes in the methodology used to calculate transfer pricings.
Continue Reading The GC’s rulings in Fiat and Starbucks : a green light with a warning
Taxation
Vestager outlines portfolio plans in European Parliament confirmation hearing
After her confirmation hearing in front of the European Parliament on Tuesday 8 October, Magrethe Vestager looks certain to remain as Competition Commissioner for a second term and to combine that with a broader responsibility for digital policy development. Both the second term and the combination of the competition portfolio with a policy brief are unprecedented in recent decades.
Several key points, including the way in which she intends to manage digital matters and a potential conflict of interest, emerged from the hearing.…
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An aid scheme or not? The GC annuls the Commission’s decision on Belgium’s system of excess profit tax rulings
By Johan Ysewyn & Sophie Bertin on
On 14 February 2019, the General Court (“GC”) annulled the European Commission’s (“Commission”) decision of 11 January 2016 declaring Belgium’s system of excess profit rulings as an aid scheme incompatible with the Internal Market. The Commission had ordered the Belgian authorities to recover around € 700 million from at least 35 companies that had benefited from the excess profit exemption through tax rulings. The GC considered that the excess profit exemption was not a “scheme” within the meaning of State aid law and that the Commission should have considered each tax ruling individually. Whilst the judgment does not address the question of “selectivity”, which is central to most tax ruling cases, it establishes that tax rulings, which are given with some latitude and discretion by the tax authorities, cannot be reviewed collectively as a “scheme”, but must be assessed individually.
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Application of the private investor test in State aid cases: lessons from the EDF saga
By Sophie Bertin on
On 13 December 2018, the European Court of Justice (“ECJ”) rejected an appeal by Electricité de France (“EDF”) against a General Court (“GC”) judgment confirming a Commission decision ordering France to recover EUR 1.37 billion in State aid from EDF (Case C-221/18 P EDF v Commission). The ECJ judgment confirms that the aid, which had been granted back in 1997, had to be recovered. The EDF saga provides several lessons on how the private investor test should be applied by the Commission and on the burden of proof imposed on the Member State under this test.
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The European Commission finds no illegal State aid was provided by Luxembourg’s non-taxation of McDonald’s
By Johan Ysewyn & Sophie Bertin on
On 19 September 2018, the European Commission (“Commission”) issued a press release declaring that Luxembourg did not provide illegal State aid to McDonald’s with regards to two tax rulings that resulted in double non-taxation of franchise profits in Luxembourg. The Commission’s three-year-long in-depth investigation established that Luxembourg had merely acted in compliance with its national tax laws and that the double non-taxation was the result of a mismatch between Luxembourg and US tax law, as opposed to a more favourable treatment given to McDonald’s compared to other companies in Luxembourg.
The Commission’s initial concerns
In December 2015, the Commission launched an investigation into McDonald’s Europe Franchising (“MEF”), a EU subsidiary of the US-based McDonald’s Corporation. At issue were two tax rulings regarding MEF, a tax resident of Luxembourg with one Swiss branch and one US branch, that received franchisee royalties from outlets in Europe, Ukraine and Russia.
Continue Reading The European Commission finds no illegal State aid was provided by Luxembourg’s non-taxation of McDonald’s