Now it is always hard to explain why the Member State involved in issuing allegedly incorrect rulings will receive its money back, which is still how the state aid regime operates today.
From an EU point of view, neither the companies involved nor the Member States will be penalized, as the only intention is to take away any unlawfully granted benefits to restore free and fair competition in the EU’s internal market.
For the companies involved, a decision to appeal the Commission’s findings will be as much of a public relations matter as it is a matter of law. It will be an executive decision whether or not to drag companies into a prolonged legal battle that may involve several European and national courts (final calculations of repayable amounts will be mainly a national matter). These cases will take at least 3 to 4 years to conclude and time and again the companies’ names will come up in the context of tax avoidance practices. Even if a case would end successfully for them, PR will have suffered.
From an academic point of view, not contesting these decisions would be a rather unwelcome scenario. If the Commission should stick with much of its original reasoning provided when it decided to open formal investigations into these test cases in 2014, then there are a number of ‘innovative’ approaches that will have to be subjected to Court scrutiny. Otherwise, we may end up with uncontested decisions that the Commission will then use for guidance in future cases and which will live a life of their own as untested precedents. By Raymond Luja, Maastricht University
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- Anticipate, prepare for and lead change
- Tax rulings and other measures similar in nature or effect
- BEPS 2015 Final Reports
- BEPS and Indirect Tax