Archive for the ‘Working Papers’ Category
The European Commission has in recent years been very active applying State aid rules to tax provisions and regimes. The first paper I ever wrote back in 2004 (don’t read it, it was initially done for a tax course and I was a 20 year old student…) dealt with those issues; now, ten years later, I’ve taken interest again on this subject and am currently involved in a handful of cases dealing with the taxation/State aid interface before the General Court.
The fact is that the Commission has recently undertaken a more proactive and prominent role in resorting to State aid rules to public initiatives that, in its view, facilitate aggressive tax planning. Those of you attending the 2014 Competition Forum back in February will recall that the Commission held a panel on “Taxation and Competition Policy”, in which it inquired about the role of State aid investigations in tackling tax evasion, tax fraud and aggressive tax planning (a video recording of the discussion as well as the transcripts of the speeches are available here).
Against a background of lack of political consensus on how to deal with harmful tax competition and what is seen as tax avoidance, the Commission is keen on being regarded as a proactive authority (it’s not the first time that competition policy is used to achieve results that couldn’t be attained by governments and legislators).
As part of this effort, the Commission has sent information requests to various Member States in order to assess the compliance of tax ruling practices (advanced binding decisions in fiscal matters which may allow for special treatment for some particular companies) and patent box regimes (incentives designed to encourage companies to make profits from their patents) with state aid rules. Yesterday the European Commission went through the trouble of issuing a Press release aimed at naming and shaming Luxembourg for having failed to provide information (specifically, the names of thelargest 100 companies benefitting from the patent box regime) , invoking fiscal secrecy.
I was quoted yesterday in a Bloomberg piece in relation to this news, so I though it’d be interesting to
recycle my thoughts explain my views in a bit more detail here:
This is a highly sensitive area where publicly visible messages (such as yesterday’s press release) may send powerful signals and give rise to concern on the parts of governments and companies, and where playing to the gallery might therefore be considered useful at times. That’s part of the game and shouldn’t surprise anyone.
But if we’re realistic, we should realize that (for as long as fiscal policy remains within the realm of nation States), there’s a limit to what can be achieved with State aid rules, and that it’s doubtful that the current investigation, focused on patent box regimes and tax rulings, will yield any meaningful results:
- Patent box regimes have been authorized in several Member States, and the Commission has consistently accepted that they do not confer the selective advantages that would qualify them as State aid.
- With regard to tax rulings –and whereas I’m not aware of the details of the investigation- even in the event that the Commission were to find incompatible State aids, this would only have the effect of suppressing divergent tax treatment within the Member State at issue (the Commission can only identify as aid deviations from “the system of reference” provided by the State’s standard tax regime ). This would therefore not at all address the main, big picture, concern linked to divergent treatment across, and beyond, different Member States.
It’d nevertheless be interesting to follow developments on this area. The amounts that could be in play for many companies would make any antitrust fine look insignificant. Anyone in need of a lawyer? ;)
My co-blogger Nicolas is, like Apple and Microsoft, on a complaining mood. Last week he was whining about how in the past few weeks I would (allegedly) not have complied with all of my blog-related duties. Nonetheless, he was smart enough to hide the criticism behind an excessive panegyrical of both my firm and myself, so now I feel I need to give something in return. That’s why I’m committed to give a last push to his campaign for Concurrence’s Antitrust Writing Awards:
Some weeks ago we referred here to this most interesting initiative by the Institute of Competition Law and George Washington Law School, and announced that Nicolas had been selected as one of the candidates for the award in the category of academic articles. Since we launched our online-campaign Nicolas’ piece has reached the first position both in terms of rating (4.44/5) and in terms of number of votes (with more than twice as many votes as the runner up) (temporary results are available here).
As you know, a French movie featuring a funnily looking French chap (see pic above) was the big winner at the Oscar ceremony held last Sunday. I never thought I would say this, but here it goes: please help the French winning streak continue! (Come on; think that it’s highly unlikely that any Frenchman will be winning anything else in the
coming decades near future).
You can vote for Nicolas’ piece on “Credit Rating Agencies, the Sovereign Debt Crisis and Competition Law” by clicking here.
Something no one knows about this piece is that it has inspired a complaint lodged by a member of the Italian Parliament with the Italian Antitrust Authority (see here).
The usual incentive applies: if Nicolas wins, all those writing a comment to this post saying that they have voted for him will receive a free beer by courtesy of the candidate.
The awards ceremony will take place on Washington D.C on 27 March. If Nico wins, that moment could recreate another well-remembered landmark in the history of cinema: “Mr Petit goes to Washington” (see capture of the film below) ;)