Judge Vesna Tomljenovic, judge at the EU General Court who has been involved in ruling on several State aid cases concerning tax rulings, focused on a few points of divergence between the General Court’s approach in the series of tax ruling cases (Fiat, Starbucks, Apple, Amazon, etc.) and the Court of Justice’s approach to the definition of reference framework. In that respect, the panel debated the role of the OECD transfer pricing guidelines in view of the seemingly strict requirements set by the Court of Justice that only provisions of national law can form part of the reference framework.
Judge Tomljenovic also indicated some potential avenues still open to the Commission for future reviews of fiscal measures, leading to some debates amongst panel members about the opportunities for future investigations and the balance to be found between member states’ tax sovereignty and the need to have tools to prevent uncontrolled harmful tax competition.
Pierre-Antoine Klethi, from our Luxembourg office, then presented the ENGIE case, which is the first fiscal State aid case addressing the (non-)application of the general anti-abuse rule. After briefly addressing the errors made by the Commission and the General Court in the first line of reasoning –outcome inconsistent with a combined reading of different provisions of the Luxembourg income tax law – he outlined the difficulties for the Commission to substantiate its claim that the structure was abusive. A debate ensued on whether the new standard of review proposed by Advocate General Kokott in her opinion, i.e., a review limited to manifest errors and relying on plausibility checks, would go too far in restricting the Commission’s powers to review tax rulings.
On the third and last topic, Prof. Dr. Raymond Luja, professor at the University of Maastricht showed the far-reaching impact of the EU foreign subsidies regulation, which will shortly start deploying its effects, and the significant additional compliance burden it would represent for groups seeking to enter into concentrations (e.g., mergers) with EU companies or participate in public procurement bids in the EU.
At the end of the day, Loyens & Loeff organised a boat tour and Network Dinner at The Concertgebouw Amsterdam, the home of the Royal Concertgebouw Orchestra. Through our partnership both with the building and the orchestra of The Royal Concertgebouw Orchestra, we had the opportunity to organise this special evening. A duo from The Royal Concertgebouw Orchestra provided a musical accompaniment during this evening. This was a great opportunity to meet industry peers in an informal setting.