EU State Aid Control as a Remedy to International Non-Taxation
Le contrôle européen des aides d’État comme remède à la non-imposition internationale
Résumé
According to the European Commission, Ireland had granted illegal State aid to the Apple group through tax rulings relating to the tax treatment of profits derived from Apple’s activities outside the United States. The Court of Justice of the European Union held that the General Court, which had annulled the Commission’s decision, had erred in holding that the Commission had not sufficiently demonstrated that the IP licenses held by the Irish subsidiaries and the associated profits were to be allocated to their Irish branches. In particular, the General Court erred in holding that the Commission’s main argument was based on incorrect assessments of the normal taxation under Irish law. In particular, the CJEU confirmed the Commission’s approach that the activities of the Irish branches should be compared not with the activities of the parent company Apple Inc. but with those of the head offices of the Irish subsidiaries. Discussing the usefulness of EU State aid procedures for addressing competition distortions related with companies of non-EU countries, the article shows that the Court’s ruling has a limited scope and does not overturn the Court’s previous case-law in State aid matters. Meanwhile, it also suggests that the Court’s reasoning is based on a questionable use of the “Authorized OECD Approach” for the attribution of profits to permanent establishments, on an erroneous interpretation of the OECD principles and on an approach “by exclusion”, relaxing thereby the burden of proof in State aid procedures.
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