The
EU Commission may have lost Starbucks on
the burden of proof, but it has clearly won that State aid case on principle:
the Commission is competent to check autonomously whether cross-border
intragroup transactions conform to conditions that would obtain in open
competition between independent legal entities, irrespective of whether any arm’s length principle
has been incorporated in the national law of that State. Even agreement with
OECD transfer pricing methods does not per se produce immunity from Commission
scrutiny, as in State aid law, the arm’s length principle is not so much a principle of
international division of taxing jurisdiction to protect a State’s tax base against
BEPS, but rather a principle of competition law to safeguard inter-entrepreneurial
and interstate equality, preventing EU Member States from selectively
allocating away tax base into voids in order to attract multinationals. Apple
and