In the past few months, I have been busy pulling together my notes on the Commission’s tax ruling campaign – its litigation against Ireland, Luxembourg and the Netherlands in respect of rulings granted to Apple, Engie, Fiat and Amazon, and Starbucks, as well as the ongoing investigations into the rulings granted to Huhtamaki (by Luxembourg), and Ikea and Nike (by the Netherlands).
Three factors have motivated my thinking. The first is the prediction that Apple and Ireland will succeed in their case before the ECJ. This will be the final nail in the coffin of the Commission’s failed approach to regulating interactions between tax authorities and taxpayers. The second is that I think there should be some regulation of these interactions. The third is that the Commission will need to change tack if it is to fulfil its role as Guardian of the Treaties.
This has led to a string of outputs:
- The first is a lengthy case note in the British Tax Review on the Engie case (“Commission v Luxembourg and Engie – (another?) mortal wound in the Commission’s campaign”). This, to my mind, produces a more significant defeat for the Commission than the Amazon and Fiat decisions.
- The second is a debate article (with Werner Haslehner) in Intertax (“The Advocate General’s Opinion in Commission v. Ireland and Apple“) whereby I critique Advocate General Pitruzzella’s opinion in the Apple case and explain why I think his opinion should not be followed by the ECJ. This will be published in Issue 6/7, but the pre-publication is available already.
- The third is a 10,000word article in European Taxation (“Plus Ça Change: The Fate of the Commission’s Open Investigations”) whereby I canvass the Commission’s options, post Amazon, Engie and Fiat, for its ongoing investigations into Huhtamaki, Ikea and Nike. I suggest that the Commission must change tack but that it could be successful if it were to base its cases around internal inconsistency (Ruth Mason’s idea), administrative impropriety (my idea), or traditional selectivity analysis. This will be published in Issue 6, but the pre-publication is available already.
- The fourth is a speech that I gave at the University of Vienna in April 2024 (“The €13bn Question: Is The Fiscal State Aid Era Over?”). This gives a broad overview of the developments in the last 10 years and tries to predict whether the Apple judgment, expected some time in the next few months, will signal the end of the fiscal State aid era?
Whenever the Apple judgment is handed down, I will also produce a lengthy case note detailing its consequences for fiscal State aid regulation.
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