By Sandra Marco Colino (The Chinese University of Hong Kong)
The sun is setting on the days when multinationals could establish intricate tax systems to drastically reduce their tax bills. Since the 1990s, the OECD and the EU have taken resolute steps to compel their members to eradicate corporate tax elusion and harmful tax competition. These solutions are forward-looking, and aim at averting future issues. Importantly, the European Commission has picked a fight against past tax schemes by targeting tax rulings via State aid, a part of EU competition law. In the most publicized case, Apple was asked to pay $15 billion to Ireland in outstanding taxes. The decision was annulled by the General Court in July 2020, and an appeal before the Court of Justice is currently pending. This paper assesses the value of State aid law as a tool to fight unfair corporate taxation. It does so by scrutinizing the decisional practice of the Commission and the judgments of the General Court. The point of departure is that it is legitimate to resort to State aid rules to monitor tax planning practices. While the Commission faces an uphill struggle to win individual cases, the general principles and strategy delineated by the investigations serve to enhance deterrence and decrease undesirable predictability. Unintendedly, the Commission’s losses reinforce the robustness of judicial review, and serve to question the narrative that EU competition law may be strategically applied against US tech giants. Overall, the paper perceives State aid as a useful weapon to combat corporate tax malpractices, but as a complement, not a substitute, of the preferred tax harmonization strategy.
