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Bram Vos
EC Tax Review
Volume 27, Issue 2 (2018) pp. 113 – 120
https://doi.org/10.54648/ecta2018012
Abstract
On 21 October 2015 the European Commission alleged the Netherlands of granting illegal fiscal State aid to Starbucks by misapplying the so-called ‘EU arm’s length principle’ through an Advance Pricing Agreement concluded between the Dutch tax administration and Starbucks. Accordingly, no market based (read: too high) transfer prices would have been adopted by Starbucks, resulting in an assumed reduction of taxable income and thereby also in a reduction of imposed corporate income tax. The Netherlands and Starbucks however disagree with the European Commission’s finding of State aid and applied for annulment of the EU Decision at the General Court.
This article will discuss in what way and to what extent the reasoning of the European Commission in the EU Decision is in conformity with Article 107 TFEU and (the explanation of) the EU arm’s length principle (by the CJEU). The author will elaborate on the factual and fiscal background of the case and provide an assessment of the contested reasoning in the EU Decision. In addition, the issue on the potential existence of an ‘EU arm’s length principle’ will be discussed by the author based on jurisprudence of the CJEU.
Extract
Summary: In this article, an important and troublesome trend of the EC's environmental and social policy is discussed. This trend is best described as a new governance model. In this new model, the government and private sector work together to make new laws (the co-operative approach), and, conversely, corporations are required to assume social responsibilities. Thus, there are two sides to this trend: public government is privatised and corporate government is publicised.
The first part of this article discusses the co-operative approach, which has become popular in the environmental area. The main reason for this approach's popularity is that it is believed to avoid the pitfalls of the adversarial approach. The second part analyses the European Commission's ideas about corporate social responsibility (CSR) as set forth in a green paper on this topic. The definition and scope of CSR, the objectives and instruments proposed by the Commission, the CSR stake-holder model, and the management structure and tools required to implement CSR are discussed. The merits of the co-operative approach and CSR are discussed in the third section. The fourth section focuses specifically on the stakeholder model on which CSR is founded. In the next section, some issues that the CSR debate has neglected are brought to the forefront. A final assessment of the co-operative approach and the CSR model is set forth in the final section.
European Energy and Environmental Law Review