Plus Ça Change: The Fate of the Commission’s Open Investigations

Abstract

Ten years on from the Commission’s opening investigation into the tax rulings provided to Apple by Ireland, the relationship between State aid law and tax rulings has finally reached a level of equilibrium following the decisions of the ECJ in Amazon, Engie and FIAT. Looking at next steps, the Commission will be considering how these decisions impact its open investigations into rulings granted to Huhtamäki, IKEA and Nike. This article suggests that the Commission, if it wishes to continue its cases against Luxembourg and the Netherlands, should shift its approach away from looking at whether or not there has been a deviation from the arm’s length principle to whether there has been administrative impropriety, baseline abuse or selectivity (using the traditional approach).