From Soft Law to Soft Law Through Hard Law: The Commission's Approach to the State Aid Assessment of Tax Rulings

Abstract

This article wishes to contribute to the ongoing debate surrounding the European Commission's State aid investigations into multinationals' tax arrangements. It does so in three distinct ways. First, it tracks the evolution of the Commission's soft law approach to tax rulings' State aid assessment. Second, it examines whether this soft law evolution reflects the Commission's hard law approach in its recent fiscal aid decisions and investigations. Finally, it argues that the Commission's approach and argumentation are not bulletproof; in fact, the author uses one of the Commission’s argumentative pillars as an example in order to illustrate that, to a certain extent, they are not as legally sound as the Commission presents them. Keywords: Soft Law; Hard Law; Notion of Aid; Forum 187; MOL; Arm’s Length Principle; OECD.