Apple, FIAT FC, Starbucks & Amazon: preview of LuxLeaks new Fiscal #StateAid trend?

In the second half of 2014 the Commission developed a second wave of State aid proceedings pursuant to Article 107 and 108 of the Treaty on the Functioning of the European Union (TFEU) with respect to measures affecting the relocation of taxable bases of MNEs within their EU operations.

The Commission started looking at certain tax practices in some Member States in the context of aggressive tax planning by MNEs, with a view to ensure a level playing field.

For the Commission, a number of MNEs were using tax-planning strategies to excessively or unfairly reduce their global tax burden, by taking advantage of the disparities ‘intentionally’ granted by certain Member States’ tax systems.

In particular, on 11 June 2014, the Commission opened three State aid investigations with respect to

(i) the individual rulings issued by the Irish tax authorities on the calculation of the taxable profit allocated to the Irish branches of Apple Sales International and of Apple Operations Europe (SA-38.373);

(ii) the individual ruling issued by the Dutch tax authorities on the calculation of the taxable basis in the Netherlands for manufacturing activities of Starbucks Manufacturing EMEA BV (SA-38.374); and

(iii) the individual ruling issued by the Luxembourgish tax authorities on the calculation of the taxable basis in Luxembourg for the financing activities of Fiat Finance and Trade (SA-38.375);

Moreover, on 1 October 2014, the Commission announced its intention to examine Gibraltar’s individual tax ruling practices for MNEs as part of

(iv) its probe of Gibraltar corporate tax system which the Commission had already initiated in October 2013 (SA-34.914);

Finally, on 7 October 2014, the Commission opened

(v) an in-depth investigation into the provision of a tax ruling to Amazon in relation to its Luxembourg corporate tax base. Based on this formal investigation, the Commission would determine whether Amazon has benefited from unlawful State aid granted by Luxembourg (SA-38.944).

[15 january 2015]

of Avvocato, LL.M. Pierpaolo Rossi

Subjects (TAGS): Material Selectivity - Fiscal State Aid - Advantage -