State Aid and Taxation: Latest Developments

Abstract

Certainly since the opening of formal investigations into the tax arrangements of Apple, Amazon, Starbucks and FIAT started by the EU Commission, the question of whether a Member State’s tax rules (or practice) may provide illegal state aid to a taxpayer is at the forefront of discussion in among the European tax and business community.

While it is clearly established that certain specific tax regimes as well as individually beneficial tax treatment for certain enterprises can in principle qualify as “aid” under Art. 107 TFEU and the general3-step framework developed by the Commission to determine it as such are well known, many questions are still unresolved. Especially, the details of identifying the relevant elements, in particular the existence of an “advantage”, its availability only to“certain” undertakings or sectors, and the limits of a possible “justification”for specific advantages are not consistently tested in the case law of the EU Courts, making it difficult to assess the position of businesses and options for policy makers alike. This seminar will deal with the latest decisions at the level of the Commission, the General Court and the Court of Justice.

It will further investigate the interaction of state aid law with developments at the level of international tax law concerning tax cooperation, namely the BEPS initiative. While both are officially driven by an interest in “fair tax competition”, it is both unclear whether this should be a concern under state aid law and whether this is indeed achieved. From a US perspective, it may be rather striking that the most prominent enterprises caught in the net of the Commission’s investigations are US multinationals.

This seminar will bring together academics and practitioners with expert knowledge in tax law and state aid law to ensure a profound and topical discussion of the problems raised by the latest developments on these questions.