Commission v Belgium and Magnetrol International (State aid - Tax rulings - Adjustment of profit due to so-called excess profits - Opinion) [2020] EUECJ C-337/19P

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(Appeal – State aid – Tax rulings – Adjustment of profit due to so-called excess profits – Regulation (EU) 2015/1589 – Article 1(d) – Aid scheme – Concept of ‘act’ – Consistent administrative practice of the tax authorities constituting an act – Demonstration, by the European Commission, of a consistent administrative practice – Representative sample – Absence of further implementing measures – General and abstract definition of beneficiary undertakings – Admissibility of a cross-appeal)

1. Can the concept of an aid scheme within the meaning of Article 1(d) of Regulation (EU) 2015/1589 laying down detailed rules for the application of Article 108 TFEU (2) also encompass a consistent administrative practice of authorities in a Member State? And, if so, what requirements are to be set in relation to the European Commission’s task of demonstrating such a consistent administrative practice?

2. These two questions are at the heart of the present appeal brought by the Commission against the judgment of the General Court of 14 February 2019. (3) The background to the dispute is the practice of the Belgian tax authorities from 2004 to 2014, which went beyond the legal situation there, of adjusting the profits of undertakings of cross-border groups on the basis of so-called excess profits by means of tax rulings (sometimes also referred to as excess profit exemption). In that context, the taxation would be based, upon request, on the profit of a comparable standalone undertaking instead of the actual profit of the undertaking concerned. The Commission classified this as prohibited aid by Decision (EU) 2016/1699 of 11 January 2016. (4)

3. Thus, the question of whether such advance tax rulings constitute, in substance, prohibited aid is not subject of the appeal. (5) Rather, the question is merely whether and, if so, under what conditions, the Commission can object to a large number of such advance tax rulings ‘as a package’ as being an aid scheme. The great practical importance of this question is illustrated by the fact that the present case is a pilot case, while actions of 28 other beneficiaries of the alleged aid are stayed before the General Court. (6)

4. The EU law forming the framework of this appeal is Articles 107 and 108 TFEU and Regulation 2015/1589.

5. Article 1 of Regulation 2015/1589 contains various definitions. According to Article 1(d), ‘“aid scheme” means any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’.

6. According to Article 1(e), ‘“individual aid” means aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme’.

7. In Belgium, the rules for the taxation of income are laid down in the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘the CIR 92’). Article 1(1) of the CIR 92 establishes, inter alia, an income tax on the total income of resident companies, namely the ‘corporate income tax’.

8. In this regard, Article 185 of the CIR 92 provides that companies are to be taxed on the total amount of their profits, including distributed dividends.

9. On 24 December 2002, Belgium enacted the loi modifiant le régime des sociétés en matière d’impôts sur les revenus et instituant un système de décision anticipée en matière fiscale (Law amending the corporate income tax system and establishing an advance tax ruling system). (7)

10. Article 20 of that law provides that the Service public fédéral des Finances (Federal Public Service for Finance, Belgium) may take a position by way of an advance tax ruling on all requests relevant to the application of tax law provisions. An ‘advance ruling’ is defined as the legal act by which the Federal Public Service for Finance determines, in accordance with the applicable provisions, how the law will apply to a particular situation or transaction that has not yet had tax consequences. The advance ruling cannot entail exemption from or reduction of the tax.

11. Article 22 of the Law of 24 December 2002 provides that an advance ruling cannot be granted, inter alia, when the request concerns situations or transactions identical to those having already had tax consequences as regards the requesting party.

12. By the loi du 21 juin 2004, modifiant le CIR 92 et la loi du 24 décembre 2002 (Law of 21 June 2004, amending the CIR 92 and the Law of 24 December 2002; ‘the Law of 21 June 2004’), (8) the Kingdom of Belgium introduced new fiscal rules concerning the cross-border transactions of associated undertakings which are part of a multinational group, providing in particular for an adjustment of the profit subject to taxation, known as a ‘correlative adjustment’.

13. According to the explanatory memorandum to the draft law presented by the Belgian Government before the Chambre des députés (the Belgian Chamber of Deputies), that law was intended to amend the CIR 92 in order to include explicitly the internationally accepted ‘arm’s length’ principle. Moreover, it was intended to amend the Law of 24 December 2002 in order to grant the Service des Décisions Anticipées (‘the Ruling Commission’) the power to issue advance rulings. The arm’s length principle was introduced into Belgian tax legislation by the addition of a second paragraph to Article 185 of the CIR 92, based on the text of Article 9 of the Model Tax Convention on Income and Capital of the Organisation for Economic Cooperation and Development (OECD).

14. The purpose of Article 185(2) of the CIR 92 is to ensure that the tax base of companies subject to taxation in Belgium may be modified by adjustments to the profit resulting from intra-group cross-border transactions, where the transfer prices applied do not reflect market mechanisms and the arm’s length principle. In addition, the concept of an ‘appropriate adjustment’ introduced by Article 185(2)(b) of the CIR 92 is justified as a means of avoiding or undoing (potential) double taxation. It is also stated that that adjustment must be carried out on a case-by-case basis in the light of the available information provided, in particular, by the taxpayer. A correlative adjustment should be made only if the tax administration considers both the principle and the amount of the primary adjustment made in another State to be justified.

‘… For two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:

(a) when two companies are in their commercial and financial relationships linked by conditions agreed upon or imposed on them which are different from those which would have been agreed upon between independent companies, the profit which – under those conditions – would have been made by one of the companies but is not because of those conditions, may be included in the profit of that company;

(b) when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the profit of the first company is adjusted in an appropriate manner.

The first subparagraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation.’ (9)

16. The view taken by the Belgian tax authorities can be gathered from a Circular of 4 July 2006 on the application of the arm’s length principle and from several replies given by the respective Belgian Ministers for Finance to parliamentary questions.

17. The Circular of 4 July 2006 was sent to officials of the general tax administration, on behalf of the Belgian Minister for Finance, in order to provide guidance on, inter alia, the insertion of Article 185(2) of the CIR 92 and the corresponding amendments to that code. The circular underlines that those amendments, in force since 19 July 2004, are intended to transpose the arm’s length principle into Belgian tax law. It constituted the legal basis enabling the adjustment of the taxable profit resulting from intra-group cross-border relationships between associated undertakings that are part of a multinational group.

18. The circular states that the upward adjustment provided for in Article 185(2)(a) of the CIR 92 allows the profit made by a resident company that is part of a multinational group to be increased. This served to include the profit that the resident company would have made from a transaction carried out at arm’s length.

19. In addition, the circular notes that the downward correlative adjustment, provided for in Article 185(2)(b) of the CIR 92, is intended to avoid or undo a (potential) double taxation. It is indicated that that adjustment must be carried out on a case-by-case basis in the light of the available information provided, in particular, by the taxpayer. It is also noted that a correlative adjustment should be made only if the tax administration or the Ruling Commission considers both the principle and the amount of the primary adjustment to be justified. Moreover, it is specified that Article 185(2)(b) of the CIR 92 does not apply if the profit made in the partner State is increased such that it is greater than the profit that would have been obtained had the arm’s length principle been applied.

20. On 13 April 2005, in response to parliamentary questions concerning the excess profit exemption, the Belgian Minister for Finance, first of all, confirmed that Article 185(2)(b) of the CIR 92 concerned the situation in which an advance ruling was issued concerning a method intended to arrive at an arm’s length profit; secondly, he confirmed that the profit recorded in the Belgian financial reports of an international group active in Belgium which exceeded an arm’s length profit should not be taken into account in the determination of the profit taxable in Belgium; thirdly, he approved the position that it was not for the Belgian tax authorities to determine which foreign undertakings should include that excess profit in their profit.

21. On 11 April 2007, in response to a further series of parliamentary questions concerning the application of Article 185(2)(a) and (b) of the CIR 92, the Belgian Minister for Finance stated that only requests for a downward adjustment had thus far been received. In addition, he stated that in determining the method for establishing the arm’s length profit of a Belgian entity, in the context of advance rulings, account was taken of the functions performed, the risks assumed and the assets used in activities that had not yet had tax consequences in Belgium. Thus, the profit recorded in Belgium in the Belgian financial reports of an international group which exceeded the arm’s length profit should not be included in the taxable profit in Belgium. Lastly, the Belgian Minister for Finance stated that it was not for the Belgian tax authorities to determine to which foreign companies the excess profit ought to be attributed. It was not possible to exchange information with foreign tax administrations in that regard.

22. Lastly, on 6 January 2015, the Belgian Minister for Finance confirmed that the principle behind the advance rulings was to tax the profit corresponding to the arm’s length profit of the undertaking concerned and endorsed the replies given by his predecessor, on 11 April 2007, concerning the fact that the Belgian tax authorities did not have to establish to which foreign companies the excess profit not taxed in Belgium ought to be attributed.

23. From 2004 to 2014, the Belgian tax authorities made downward adjustments to the profit of 55 Belgian resident undertakings that are part of ‘cross-border groups’ by way of 66 advance tax rulings.

24. They made those adjustments on the basis of Article 185(2)(b) of the CIR 92. That provision allows for an adjustment of profits between two undertakings belonging to the same group if the conditions agreed between the two undertakings had been those which would have been agreed between independent undertakings.

25. The Commission takes the view, however, that it was not remuneration for services between two associated companies that was reassessed by means of the arm’s length principle, as provided for in Article 185(2) of the CIR 92; rather, the Belgian tax authorities ultimately compared the profit of the undertaking forming part of a ‘cross-border group’ with that of a non-associated undertaking. Specifically, that excess profit was determined by estimating the hypothetical average profit that a standalone undertaking carrying out comparable activities could be expected to make in comparable circumstances and subtracting that amount from the profit actually recorded by the Belgian undertaking in question. (10) Belgium takes the view that the remaining amount corresponds to synergies, economies of scale or other benefits drawn from participation in a multinational group and which would not exist for a comparable standalone undertaking. (11)

26. By decision of 11 January 2016, the Commission found that the adjustments granted by Belgium, by means of advance tax rulings under Article 185(2)(b) of the CIR 92, constituted an aid scheme within the meaning of Article 107(1) TFEU that was incompatible with the internal market and had been put into effect in breach of Article 108(3) TFEU.

27. Furthermore, the Commission ordered that the aid granted be recovered from the beneficiaries, a definitive list of which was to be drawn up by Belgium following the decision. However, the annex to the contested decision already identifies 55 beneficiaries, including Magnetrol International NV, Soudal BV, Esko-Graphics BVBA, Flir Systems Trading Belgium BVBA, Anheuser-Busch InBev SA/NV, Ampar BVBA, Wabco Europe BVBA, Atlas Copco Airpower NV, Atlas Copco AB and Celio International NV.

28. In recitals 94 to 110 of the contested decision, the Commission globally assessed the issuing of the advance tax rulings in question as constituting an aid scheme, based on Article 185(2)(b) of the CIR 92, as applied by the Belgian tax administration. In addition, the Commission considered that those exemptions were granted without further implementing measures being required, since the Belgian authorities granted the advance tax rulings based on a systematic approach. Furthermore, the Commission stated that the beneficiaries of the exemptions were defined in a general and abstract manner by the acts on which the scheme was based. Those acts referred to undertakings that form part of a multinational group of undertakings. (12)

29. On 22 March and 25 May 2016, respectively, Belgium and Magnetrol International brought actions against the contested decision, which were joined by the General Court for the purposes of the oral part of the procedure. Ireland intervened in support of Belgium.

30. Belgium and Magnetrol International raised the following pleas in law, alleging, in essence:

– that the Commission encroached upon Belgium’s exclusive jurisdiction in the field of direct taxation;

– that the Commission erred in regarding advance rulings in relation to excess profit as State aid, and infringed the principles of legality and of the protection of legitimate expectations.

31. By the judgment under appeal, the General Court annulled the contested decision. Although it rejected the plea alleging that the Commission encroached upon the tax jurisdiction of Belgium as unfounded (paragraphs 59 to 74 of the judgment under appeal), the General Court found that the pleas raised by Belgium and Magnetrol International alleging the infringement of Article 1(d) of Regulation 2015/1589 as regards the alleged existence of an aid scheme were well founded (paragraphs 75 to 135 of the judgment under appeal). It was therefore no longer necessary to examine the other pleas (paragraph 136 of the judgment under appeal).

32. The Commission lodged an appeal against the judgment of the General Court on 24 April 2019.

34. By orders of 15 October 2019, the President of the Court of Justice granted Soudal, Esko-Graphics, Flir Systems Trading Belgium, Anheuser-Busch InBev and Ampar, Wabco Europe, Atlas Copco Airpower and Atlas Copco, and Celio International leave to intervene in support of Magnetrol International.

– set aside the judgment under appeal in so far as the General Court held that the contested decision erroneously regarded the ‘excess profit’ system as an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589;

– refer the case back to the General Court for a decision on the remaining pleas;

36. Belgium, Magnetrol International and the interveners claim that the Court should:

– set aside the judgment under appeal in so far as the General Court rejected the first plea raised by Belgium and rule on that plea;

39. The Commission, Belgium, Magnetrol International and the interveners submitted written observations and presented oral argument regarding the appeal at the hearing on 24 September 2020. (13)

40. Belgium, Magnetrol International, Soudal, Esko-Graphics and Wabco Europe consider the Commission’s appeal to be inadmissible in its entirety. First, they find fault with the forms of order sought by the Commission. Second, they consider that the Commission seeks a reassessment of the facts of the case. Third, they assert that the Commission has not explained in how far the General Court erred in law.

41. Magnetrol International, Soudal, Esko-Graphics and Wabco Europe take the view that the forms of order sought by the Commission are inadmissible. The Commission seeks only that part of the judgment which burdened it to be set aside. However, the contested part of the operative part, by which the General Court annulled the contested decision, is indivisible.

42. Under Article 169(1) of the Rules of Procedure of the Court of Justice, an appeal must seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.

43. The Commission claims that the Court should ‘set aside [the judgment under appeal] in so far as it holds that [the contested decision] erroneously classified the “excess profit” system as a scheme within the meaning of Article 1(d) of Regulation 2015/1589’. In that regard, it is unambiguously clear from the form of order sought by the Commission in its appeal that it seeks to have set aside the operative part by which the General Court annulled the contested decision. This corresponds to the setting aside in full of the General Court’s decision by which it upheld Belgium and Magnetrol International’s actions in their entirety. This is because the General Court did not dismiss those actions in part.

44. Since it is clear from this that the appeal seeks to have the judgment under appeal set aside, (14) the forms of order sought by the Commission are admissible in this respect.

2. The allegation that the Commission seeks a reassessment of the facts established by the General Court

45. Belgium, Soudal and Esko-Graphics also contend that the Commission seeks a reassessment of the facts by the Court of Justice. They submit that, by its appeal, the Commission is ultimately seeking to substitute the statement of reasons of the contested decision.

46. It should be recalled, as follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, that an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. (15)

47. However, the Commission does not confine itself to criticising the General Court’s finding and appraisal of the relevant facts. On the contrary, it submits on several occasions that the General Court distorted the facts. Aside from that, the Commission does not confine itself to complaints at the factual level but, as I will explain below, (16) also alleges errors of law.

48. Finally, Belgium, Soudal and Esko-Graphics complain that the Commission failed to provide reasons explaining how the General Court misinterpreted Article 1(d) of Regulation 2015/1589.

49. According to settled case-law, it follows from, inter alia, Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the decision which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court does not satisfy the requirements relating to the duty to state reasons under those provisions. (17)

50. However, the Commission criticises certain parts of the judgment under appeal and refers to specific paragraphs in that regard. (18) Moreover, it explains how, in its view, the General Court erred in law in its application of the individual conditions of Article 1(d) of Regulation 2015/1589.

53. The Commission’s appeal consists of one ground of appeal, alleging that the General Court erred in law in its interpretation of the concept of an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589 and, moreover, distorted the contested decision by not setting out the conditions for the existence of an aid scheme.

54. The General Court takes the view that the Commission erroneously considered that the systematic practice of the Belgian authorities of adjusting profits, which goes beyond the scope of Article 185(2)(b) of the CIR 92, constituted an aid scheme (paragraph 135 of the judgment under appeal). The Commission did not review all the advance tax rulings issued, but only a sample of them. The General Court takes the view that the Commission therefore did not prove that the Belgian tax authorities had followed a systematic approach in all the advance tax rulings (paragraph 134 of the judgment under appeal).

55. Pursuant to Article 1(d) of Regulation 2015/1589, an aid scheme is any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner.

56. According to Article 1(e) of that regulation, ‘individual aid’ means aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme.

57. Accordingly, an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589 has three conditions: First, it must be an act. Second, the individual aid must be granted without further implementing measures. Third, the undertakings to which the aid is granted must be defined in the act in a general and abstract manner. These conditions must be met cumulatively.

58. The General Court concluded that none of those conditions had been met. The Commission takes the view that the General Court therefore misinterpreted all three conditions of Article 1(d) (first to third parts of the ground of appeal). It is only if this is true of all three conditions that the Commission’s appeal can ultimately be successful.

59. On the other hand, the fourth and final part of the ground of appeal, according to which the General Court also disregarded the ratio legis of Article 1(d) of Regulation 2015/1589, is not in actual fact an independent part of the ground of appeal. Rather, the ratio legis of a provision must be taken into consideration in the interpretation of each of its conditions. This part will therefore be examined together with the other three parts.

60. By the first part of its ground of appeal, the Commission alleges that the General Court misinterpreted, in paragraph 78 et seq. of the judgment under appeal, the first condition of Article 1(d) of Regulation 2015/1589, namely the concept of an act. Furthermore, it distorted recitals 94 to 110 of the contested decision by considering, in paragraph 94 of the judgment under appeal, that only the acts listed in recital 99 constituted the basis of the scheme in question.

61. In recital 99 of the contested decision, the Commission stated that Article 185(2)(b) of the CIR 92, the Memorandum to the Law of 21 June 2004, the Circular of 4 July 2006 and the replies by the Minister of Finance to parliamentary questions on the application of Article 185(2)(b) of the CIR 92 constitute the acts on the basis of which the excess profit exemption is awarded.

62. The first part of the ground of appeal is in turn broken down into two arguments. According to the Commission, first, contrary to the view of the General Court, the concept of ‘act’ within the meaning of Article 1(d) of Regulation 2015/1589 can also encompass a consistent administrative practice (see Section (a) below). Second, the General Court failed to have regard to the fact that the Commission had also adequately demonstrated that consistent administrative practice (see Section (b) below).

63. The Commission takes the view that the General Court interpreted the concept of ‘act’ too narrowly. Contrary to the view taken by the General Court, the concept of ‘act’ could also encompass a consistent administrative practice.

64. The concept of ‘act’ within the meaning of Article 1(d) of Regulation 2015/1589 is to be given a broad interpretation. (19) While only a few language versions indicate that a legal act may be necessary, (20) it appears to be sufficient, according to most language versions, (21) that a legal consequence is established (22) – whether by law or otherwise.

65. The practical effectiveness of State aid control also militates in favour of a broad interpretation. While point (e) concerns individual cases, point (d) covers a large number of similar cases. The effectiveness of the Commission’s work would be jeopardised if Member States were able to prevent an abstract aid scheme from being reviewed by moving it from the statutory to the administrative level. The Commission would then have to deal with all decisions individually, even if they are similar.

66. By contrast, the Commission’s argument appears to be based on an incomplete reading of the judgment under appeal. In a first step, the General Court examined, in paragraph 80 et seq. of its judgment, whether the legal acts identified in recital 99 of the contested decision constituted the basis for the downward adjustments granted. The General Court found this not to be the case in paragraph 96 of the judgment, stating that they did not contain the constituent elements of the scheme complained of by the Commission. In a second step, the General Court then examined, in paragraph 121 et seq., whether the Commission’s argument alleging the existence of a consistent administrative practice calls that conclusion into question. The General Court refers to such a consistent administrative practice as a ‘systematic approach’.

67. It is true that, in paragraphs 79 and 122 of the judgment under appeal, the General Court rightly refers to the judgment in Germany and Pleuger Worthington v Commission. According to that judgment, in cases where a legal act establishing an aid scheme has not been identified, the Commission may rely on a set of circumstances which taken as a whole indicate the existence of an aid scheme. (23)Contrary to the views taken by some of the parties involved, however, the Pleuger judgment (24) does not demonstrate that an administrative practice can constitute an aid scheme only if a legal act has not been identified. It is true that in that case the Court of Justice only had to rule on a situation in which it was not possible to identify a legal act on which the aid scheme was based. However, in doing so, the Court of Justice did not comment on cases in which a legal act is uniformly applied by the administration in a particular way and in a way that goes beyond its wording. Accordingly, in paragraph 123 of the judgment under appeal, the General Court does not in fact rule out the possibility that the Commission may conclude that there is an aid scheme where the characteristics of a systematic approach meet the requirements set out in Article 1(d) of Regulation 2015/1589. Rather, the General Court merely stated, in paragraph 124, that the Commission had not demonstrated a consistent administrative practice by virtue of such a systematic approach.

68. This argument raised by the Commission in the first part of its ground of appeal therefore comes to nothing.

69. The decisive question is therefore whether the General Court erred in law – as the Commission complains – by imposing excessive requirements on proving the existence of a consistent administrative practice. In that regard, the General Court held, in paragraph 134 of its judgment, that the Commission had not proved in the contested decision that a systematic approach on the part of the Belgian tax authorities existed and that it was followed in all of the advance rulings.

70. As stated above, (25) the assessment of the facts by the General Court does not in principle constitute a question of law which is subject, as such, to review by the Court of Justice. However, when the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them. (26)

71. Specifically, the General Court takes the view that the Commission had not demonstrated to the requisite legal standard the existence of a systematic approach (paragraph 126 of the judgment under appeal). The Commission did not explain either the choice of its sample or why it had been considered to be representative of all of the advance rulings (paragraph 127 of the judgment under appeal). Examples had been used to illustrate all of the advance rulings, without an explanation as to why they were chosen and why they were representative (paragraph 128 of the judgment under appeal).

72. As explained below, the Commission may confine itself to examining samples for the purposes of proving the existence of a scheme (see Section 1 below). It is therefore necessary to examine whether the General Court erred in law in its objection to the Commission’s selection of the sample (see Section 2 below).

73. The Commission typically objects to advance tax rulings as individual aid. (27) However, this does not preclude the Commission from being able to prove the existence of a consistent administrative practice on the part of the tax authorities of a Member State in the case of advance tax rulings also. To do so, however, the Commission must demonstrate that the tax authorities use a systematic approach.

74. An administrative practice is a practice that is, to some degree, of a consistent and general nature. (28) Such a practice is consistent if it has been developed in such a way as to give the impression that cases in a certain category are always treated in this way.

75. By its very nature, proving the existence of a consistent administrative practice is associated with a certain degree of ambiguity, particularly if the State has not adopted any administrative provisions in that regard. Nevertheless, the mere appearance of an administrative practice is not sufficient. Rather, in cases where a law exists, the Commission must prove that the administrative practice has consistently gone beyond the mere exercise of the powers provided by that law. Otherwise, the law itself would constitute the aid scheme.

76. In the present case, the Commission complains that the Belgian tax authorities consistently misapplied Article 185(2)(b) of the CIR 92. This is because, while that provision allows an adjustment of profits in respect of agreements between two undertakings of the same group, the Belgian tax authorities would have granted the exemption irrespective of such agreements.

77. According to the statements of the General Court, it was sufficient if the profits were linked to a new situation, such as a reorganisation leading to the relocation of a central entrepreneur to Belgium, the creation of jobs, or the making of investments. (29) The Belgian authorities even advertised – as graphically shown by the Commission once again at the hearing – the possibility of advance tax rulings making a downward adjustment to profits (sometimes also referred to as excess profit exemption). (30)

78. However, if, on the face of it, a large number of rulings appear to use the same approach and reasoning, this serves as an indication of consistent administrative practice.

79. Thus, the Commission does not have to examine all the contested rulings individually, but may also base its proof of a consistent administrative practice on a sample. (31) However, the Commission must provide justification that the selection of its sample is representative. The sample must be sufficiently relevant for the specific case. (32) To that end, the sample could be selected purely at random or else in such a way that the total mass can be deduced as reliably as possible from a certain partial survey.

80. In the case of the latter method, all the parameters relevant to the selection of the sample must be clear from the contested decision. Any reasons put forward by the Commission in its appeal to explain how the sample is representative would have been provided after the fact and therefore cannot be taken into consideration.

81. The question is therefore whether the General Court was right to find, in paragraph 126 of the judgment under appeal, that the Commission had not demonstrated to the requisite standard the existence of a consistent administrative practice in the contested decision.

82. In paragraph 127 of the judgment under appeal, the General Court states that the Commission examined a sample of 22 of the 66 advance rulings concerned. However, the Commission did not explain either the choice of that sample or why it had been considered to be representative of all of the advance rulings. The Commission merely confined itself to covering, with the decisions it examined, the period of the decisions at issue.

83. In addition, in paragraph 128 of the judgment under appeal, the General Court criticises the lack of detail in the reasons why six advance rulings from that sample were described briefly in the contested decision. The General Court states that the contested decision also gives no explanation as to why those 6 examples are sufficiently representative of all 66 advance rulings.

84. Contrary to the view taken by the General Court, the contested decision cannot be challenged in so far as the six exemplary tax rulings are merely – in the words of the General Court – ‘examples capable of illustrating [all of the advance rulings]’. (33) This is because illustrative examples are not the reasons underpinning a decision; they merely serve to illustrate it.

85. However, as regards the reasons underpinning the contested decision, the Commission’s selection must be representative, as stated above. To that end, all the parameters that led to the selection of the sample must be taken into account. Those parameters must be subjected to a global assessment. (34)

86. In the present case, the Commission initially examined 22 of the 66 advance rulings concerned, meaning that the sample comprised a third of the rulings. There can be no objection to this number. Furthermore, all the rulings came from the same issuer, namely the Belgian Ruling Commission.

87. In addition, all 22 advance rulings chosen and examined included profit adjustments in favour of applicants which were part of a multinational group. As a result, the Belgian tax authorities carried out what the Commission refers to as taxation on fictitious profit in respect of certain undertakings, which does not result from Article 185(2) of the CIR 92.

88. Finally, the Commission selected decisions from 2004, 2007, 2010 and 2013. Although that information is apparent only from recital 3 of the contested decision, that recital does not appear in the section of the contested decision dealing with the assessment of the measure, but is confined to a description of the procedure.

89. However, it is clear from the table prominently displayed in recital 59 of the contested decision that those 22 rulings in the sample represent all the rulings of the years selected. As no rulings were issued in 2004, the Commission used 2005, the first year of rulings of this kind. In that regard, the General Court rightly documented, in paragraph 127 of the judgment under appeal, the Commission’s statements according to which its examination of those years would cover rulings issued at the beginning, middle and end of the period.

90. Consequently, the Commission explained in the contested decision that the sample was representative overall and therefore sufficient to demonstrate a consistent administrative practice.

91. The fact that individual requests were withdrawn after the preliminary examination phase does nothing to change this. According to paragraph 112 of the judgment under appeal, only around half of the requests ultimately resulted in an advance ruling in 2014, for instance. No ruling was issued in relation to the other half of the requests.

92. However, this is irrelevant, since, on the one hand, the Commission did not actually include 2014 in its sample. On the other hand, the Belgian authorities informed the Commission ‘that they have never refused any request for a ruling to benefit from the Excess Profit exemption since the contested scheme’s introduction’. (35) Against this background, the Commission was entitled to assume that it covered the entire tax ruling practice of the Belgian tax authorities.

93. In the context of State aid control, it should be noted in this regard that the Commission is dependent on the cooperation of the Member State concerned. It may send requests for information to the Member State in accordance with Articles 5, 12 and 20 of Regulation 2015/1589. The Commission can rely on the accuracy and completeness of the information provided by the Member State. It does not have to carry out any investigations that go beyond that.

94. Consequently, the Commission did sufficiently explain, in the contested decision, the choice of the sample and why it had been considered to be representative of all of the advance rulings. It is therefore not necessary to consider, in any greater detail, the Commission’s argument that a mere reference to the opening decision in the contested decision is sufficient to satisfy the requirements of evidence. (36)

95. In conclusion, the General Court therefore erred in law by wrongly classifying the sample as not sufficiently representative to the requisite legal standard, and not sufficient to demonstrate a consistent administrative practice.

2. The second condition ‘without further implementing measures’ (second part of the ground of appeal)

97. By the second part of its ground of appeal, the Commission alleges that the General Court misinterpreted the second condition of Article 1(d) of Regulation 2015/1589, namely that no further implementing measures are necessary.

98. In paragraph 120 of the judgment under appeal, the General Court comes to the conclusion that the Commission wrongly concluded that the Belgian excess profit exemption at issue does not require further implementing measures.

99. Previously, in paragraph 86 of the judgment under appeal, the General Court correctly defined the condition for the existence of an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589 according to which individual aid must be granted without further implementing measures being adopted. For that reason, it is necessary that the essential elements of the aid scheme in question emerge from the provisions identified as the basis for the scheme.

100. However, the General Court’s error of law specified above (37) also extends to this part of the ground of appeal. Since the General Court considered that the consistent administrative practice of the Belgian tax authorities had not been sufficiently demonstrated, it examined the condition regarding the absence of implementing measures only in relation to the legal basis for profit adjustments in Article 185(2)(b) of the CIR 92.

101. If the aid scheme is based on a law, its application by the administration traditionally constitutes a possible further implementing measure. However, such further implementing measures do not exist if individual aid is granted solely on the basis of the law without the administration having any individual decision-making power.

102. The General Court is in principle correct to assume, in paragraph 87 of the judgment under appeal, that the national authorities cannot have any ‘margin of discretion’. Rather, their power must be limited to technical application. It is only in this way that the existence of further implementing measures is precluded. The decisive question is therefore whether the authorities have real decision-making leeway or only bound decision-making competence. The fact that a request by the taxpayer is necessary is irrelevant to the need for further implementing measures, as correctly pointed out by the General Court in paragraph 100 of the judgment under appeal.

103. If, however, as is the case here, a consistent administrative practice constitutes the act, there are generally no further implementing measures, since the consistent administrative practice already consists of a set of measures for granting individual aid.

104. In the case of a consistent administrative practice, a further implementing measure could simply amount to the individual administrator being granted, within the framework of that practice, decision-making powers enabling him or her to deviate from the treatment actually practised.

105. This is not the case here. In so far as the Belgian tax authorities, going beyond the wording of Article 185(2) of the CIR 92, carried out a comparative analysis of the profit with an undertaking not forming part of a group, an adjustment was always made to the lower comparative profit of an undertaking not forming part of a group. As this adjustment was made using the same method without exception, the authority did not have any independent, individual decision-making leeway.

106. In particular, there is nothing in the present case to indicate that the Belgian tax authorities could make different profit adjustments if two identical group undertakings apply for an advance ruling because those authorities consider that one of those undertakings should receive a more favourable treatment than the other.

107. In that regard, the General Court erred in law in finding that further implementing measures were necessary in this case. It follows that the second part of the ground of appeal is therefore also well founded.

3. The third condition regarding the general and abstract definition of beneficiaries in the act (third part of the ground of appeal)

108. By the third part of the ground of appeal, the Commission complains that the General Court misinterpreted the third condition of Article 1(d) of Regulation 2015/1589, namely the general and abstract definition of beneficiaries, and distorted recitals 66, 102 and 103, 109, 139 and 140 of the contested decision, by concluding that further implementing measures were necessary to define the beneficiaries of the excess profit exemption.

109. The General Court addresses the definition of ‘beneficiaries’ in paragraphs 114 to 119 of the judgment under appeal. It concludes in paragraph 119 of the judgment under appeal that further implementing measures necessarily have to be taken in order to define such beneficiaries. According to paragraph 115 of the judgment under appeal, the beneficiaries cannot be identified on the sole basis of Article 185(2)(b) of the CIR 92. According to paragraph 116 of the judgment under appeal, the beneficiaries of the scheme as per recital 102 of the contested decision that were identified by the Commission correspond to a much more specific category than that defined in the law. However, the other legal acts identified by the Commission did not provide any additional details (paragraph 117 of the judgment under appeal).

110. The General Court erred in law also in this regard. It is true that, in paragraph 115 of the judgment under appeal, the General Court does in principle apply the correct standard to the general and abstract definition of beneficiaries within the meaning of Article 1(d) of Regulation 2015/1589. Such a definition is general and abstract if the beneficiaries can be identified on the sole basis of the act, without further implementing measures.

111. In the same paragraph, the General Court also correctly took the view that, pursuant to Article 185(2)(b) of the CIR 92, the use of the tax scheme is limited to entities that form part of ‘a multinational group of associated companies’. In that respect, the identically worded recital 109 of the contested decision has not been distorted.

112. However, in paragraph 116 of the judgment under appeal, the General Court fails to recognise that the detailed description of the beneficiaries in recital 102 of the contested decision is itself part of the aid scheme. (38) The fact that the beneficiaries of the scheme identified by the Commission differ from those referred to in Article 185(2) of the CIR 92 is simply due to the fact that the Commission did not classify Article 185(2) of the CIR 92 as an aid scheme, but rather classified the consistent administrative practice as an aid scheme.

113. Therefore, the General Court incorrectly classified the definition of beneficiaries in the act – in this case the consistent administrative practice – as not being general and abstract. The third part of the ground of appeal is therefore also well founded.

114. In conclusion, the General Court incorrectly assumed that the conditions of Article 1(d) of Regulation 2015/1589 were not met in the present case. On the contrary, in the contested decision the Commission sufficiently demonstrated that the Belgian practice of making downward adjustments of the profits of undertakings forming part of a multinational group constitutes an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589. The appeal is therefore well founded.

115. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the latter may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court.

116. The state of proceedings does not permit final judgment. The reason for this is that, even if the Court of Justice were to find that all the conditions for the existence of an aid scheme are met, the General Court would still have to assess whether the advance tax rulings concerning the downward adjustment of profits constitute State aid and whether the recovery of the alleged aid infringes, in particular, the principles of legality and of the protection of legitimate expectations on the ground that it was ordered wrongly.

117. The General Court did not examine the pleas in law put forward in that regard. Nor were the relevant pleas in law the subject of an exchange of arguments before the General Court in the stayed proceedings related to the present pilot case. Their examination requires further measures of organisation of procedure. (39) Therefore, the case must be referred back to the General Court for a decision.

118. It is also necessary to examine whether the cross-appeal brought by Belgium is admissible.

119. Pursuant to the first sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. In the present case, the form of order sought by Belgium seeks annulment of the decision of the General Court in so far as the latter rejected Belgium’s first plea in law.

120. Although, under Article 178(1) of the Rules of Procedure, forms of order sought in cross-appeals may ‘seek to have set aside, in whole or in part, the decision of the General Court’, the Court of Justice has held that it is a basic principle applying to appeals that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision. (40)

121. This is also in line with the wording of the general rule on forms of order sought in appeals in Article 169(1) of the Rules of Procedure. According to that rule, an appeal that does not seek to have the judgment under appeal, that is to say the operative part thereof, set aside, even in part, but merely to amend some of the grounds of that judgment, is inadmissible. (41)

122. The rationale behind this is that every appellant must have an interest in bringing an appeal. This follows already from the first sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union and also applies to cross-appeals.

123. That is not the case here. This is because the Commission’s appeal will either be dismissed, and the annulment of the contested decision will therefore become final – fully in line with Belgium’s aims – or the Court of Justice will refer the case back to the General Court. The Court of Justice will not rule on Belgium’s considerations concerning the tax jurisdiction of the Member States until a further appeal.

125. Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. Since that is not the case here, the decision as to costs is reserved.

(1) The cross-appeal lodged by the Kingdom of Belgium is dismissed as inadmissible;

(2) The judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), is set aside;

(3) The case is referred back to the General Court for a decision on the remaining pleas in law;

3 Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91).

4 Decision on the State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61), Article 1.

5 See, in this regard, the pending Cases C‑885/19 P, Fiat Chrysler Finance Europe v Commission, C‑898/19 P, Ireland v Commission and Others, and C‑465/20 P, Commission v Ireland and Others.

6 See, inter alia, the actions brought by the interveners in the present appeal, T‑201/16, Soudal v Commission, T‑278/16, Atlas Copco Airpower and Atlas Copco v Commission, T‑335/16, Esko-Graphics v Commission, T‑370/16, Anheuser-Busch Inbev and Ampar v Commission, T‑467/16, Flir Systems Trading Belgium v Commission, T‑637/16, Wabco Europe v Commission, and T‑832/16, Celio International v Commission.

9 The second subparagraph of Article 185(2) of CIR 92 does not appear in paragraph 8 of the judgment under appeal, whereas it is set out in recital 29 of the contested decision.

14 See, for instance, judgment of 7 April 2016, Akhras v Council (C‑193/15 P, EU:C:2016:219, paragraph 34).

15 See, as the most recent cases, judgments of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission (C‑591/18 P, not published, EU:C:2019:1026, paragraph 32); of 4 March 2020, Buonotourist v Commission (C‑586/18 P, EU:C:2020:152, paragraph 67); and of 28 May 2020, Asociación de fabricantes de morcilla de Burgos v Commission (C‑309/19 P, EU:C:2020:401, paragraph 10).

17 See, as the most recent cases, judgments of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 33), and orders of 15 January 2020, BS v Parliament (C‑642/19 P, not published, EU:C:2020:32, paragraph 17), and of 3 September 2020, ZW v EIB (C‑50/20 P, not published, EU:C:2020:652, paragraph 15).

19 See, in particular, the language versions in English ‘act’, in Italian ‘atto’ and in Portuguese ‘ato’.

21 In Danish ‘retsakt’, in German ‘Regelung’, in Dutch ‘regeling’ and in Swedish ‘rättsakt’.

22 See Opinion of Advocate General Wathelet in Joined Cases Scuola Elementare Maria Montessori v Commission and Commission v Scuola Elementare Maria Montessori and Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:229, point 34 et seq.).

23 Judgment of 13 April 1994, Germany and Pleuger Worthington v Commission (C‑324/90 and C‑342/90, EU:C:1994:129, paragraphs 14, 15 and 23).

24 Judgment of 13 April 1994, Germany and Pleuger Worthington v Commission (C‑324/90 and C‑342/90, EU:C:1994:129, paragraphs 14, 15 and 23).

26 Judgments of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 33); of 4 February 2020, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 47); and of 18 June 2020, Commission v RQ (C‑831/18 P, EU:C:2020:481, paragraph 93).

27 See judgment of the General Court of 24 September 2019, Netherlands and Others v Commission (T‑760/15, EU:T:2019:669), and the pending Cases C‑885/19 P, Fiat Chrysler Finance Europe v Commission, C‑898/19 P, Ireland v Commission and Others, and C‑465/20 P, Commission v Ireland and Others.

28 Judgments of 29 April 2004, Commission v Germany (C‑387/99, EU:C:2004:235, paragraph 42), and of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 28).

29 Paragraph 90 of the judgment under appeal and recitals 103 and 139 of the contested decision.

31 See judgments of 14 October 1987, Germany v Commission (248/84, EU:C:1987:437, paragraph 18), and of 20 December 2017, Spain v Commission (C‑81/16 P, EU:C:2017:1003, paragraph 77).

32 Judgment of 20 December 2017, Spain v Commission (C‑81/16 P, EU:C:2017:1003, paragraph 77).

34 See, generally regarding the duty to state reasons, the following settled case-law: judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 63); of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraph 43); of 10 March 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149, paragraph 16); and of 4 June 2020, Hungary v Commission (C‑456/18 P, EU:C:2020:421, paragraph 57).

35 ‘Nous précisons qu’aucune décision négative n’a été rendue’, recital 59 and footnote 41 of the contested decision.

36 It is not clear that this is part of the context of the contested decision. The opening decision and the negative decision are two different legal acts, adopted at different times and from different perspectives, and are subject to different standards of judicial review.

39 See judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others (C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 130) for the opposite situation.

40 Judgments of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861, paragraph 51); of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services (C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 41); and of 16 July 2020, Inclusion Alliance for Europe v Commission (C‑378/16 P, EU:C:2020:575, paragraph 57).

41 Judgments of 15 November 2012, Al-Aqsa v Council (C-539/10 P and C-550/10 P, EU:C:2012:711, paragraphs 44 and 50), and of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services (C-84/17 P, C-85/17 P and C-95/17 P, EU:C:2018:596, paragraphs 42 and 43).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Belgium and Magnetrol International (State aid - Tax rulings - Adjustment of profit due to so-called excess profits - Opinion) [2020] EUECJ C-337/19P_O (03 December 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C33719P_O.html Cite as: [2020] EUECJ C-337/19P_O, ECLI:EU:C:2020:990, EU:C:2020:990

Court of Justice of the European Communities (including Court of First Instance Decisions)