JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)
20 September 2023 (*)
(State aid – Aid scheme put into effect by Belgium – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted – Tax ruling – Taxable profit – Excess profit exemption – Advantage – Selectivity – Recovery)
In Cases T‑467/16 and T‑681/16,
Flir Systems Trading Belgium, established in Meer (Belgium),
applicant in Case T‑467/16,
Henkel Belgium, formerly Henkel Electronic Materials (Belgium), established in Westerlo (Belgium),
applicant in Case T‑681/16,
represented by N. Reypens and C. Docclo, lawyers,
v
European Commission, represented by P.‑J. Loewenthal, B. Stromsky and F. Tomat, acting as Agents,
defendant,
THE GENERAL COURT (Second Chamber, Extended Composition),
composed of A. Marcoulli, President, S. Frimodt Nielsen, V. Tomljenović (Rapporteur), R. Norkus and W. Valasidis, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure, in particular:
– the decision of 16 February 2018 to stay the proceedings pending the decisions closing the proceedings in the cases that gave rise to the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and to the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741),
– the decision of 26 April 2022 to resume the proceedings,
– the written questions put by the Court to the parties and their replies to those questions,
having regard to the order of the President of the Second Chamber, Extended Composition, of 21 December 2022 joining Cases T‑278/16, T‑370/16, T‑373/16, T‑420/16, T‑467/16, T‑637/16, T‑681/16, T‑858/16 and T‑867/16 for the purposes of the oral part of the procedure,
further to the hearing on 13 February 2023,
gives the following
Judgment
1 By their actions under Article 263 TFEU, the applicants – in Case T‑467/16, Flir Systems Trading Belgium, and, in Case T‑681/16, Henkel Belgium – seek the annulment of Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61; ‘the contested decision’).
I. Background to the dispute
2 The facts of the dispute and the legal background were set out by the General Court in paragraphs 1 to 28 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and by the Court of Justice in paragraphs 1 to 24 of the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741; ‘the judgment on appeal’). For the purposes of the present proceedings, they may be summarised as follows.
3 By an advance ruling issued by the ‘service des décisions anticipées’ (Advance Ruling Commission) of the service public fédéral des finances belge (Belgian Federal Public Service for Finance) under Article 185(2)(b) of the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘the CIR 92’), read in conjunction with Article 20 of the loi du 24 décembre 2002 modifiant le régime des sociétés en matière d’impôts sur les revenus et instituant un système de décision anticipée en matière fiscale (Law of 24 December 2002 amending the corporate income tax system and establishing an advance tax ruling system) (Moniteur belge, 31 December 2002, p. 58817; ‘the Law of 24 December 2002’), Belgian resident companies that were part of a multinational group and Belgian permanent establishments of foreign resident companies that were part of a multinational group could reduce their tax base in Belgium by deducting what was considered to be ‘excess’ profit from the profit which they had recorded. Under that system, part of the profit made by the Belgian entities benefiting from an advance ruling was not taxed in Belgium. According to the Belgian tax authorities, that excess profit arose from the synergies, economies of scale or other benefits resulting from membership of a multinational group and, accordingly, was not attributable to the Belgian entities in question.
4 The applicants in the present cases are companies established in Belgium forming part of multinational groups of undertakings. Those companies carry out transactions with other companies within their respective groups.
5 It is apparent from the annex to the contested decision and the documents in the files in the cases in question that, on 18 September 2012, as regards Flir Systems Trading Belgium, and, on 17 September 2013, as regards Henkel Electronic Materials, the Advance Ruling Commission adopted advance rulings on the exemption of excess profit in respect of the applicants, which had requested them following restructuring within their groups of undertakings to centralise a number of functions and services with companies established in Belgium. Those advance rulings were valid for five years.
6 Following an administrative procedure that was initiated on 19 December 2013 with a letter by which the European Commission requested the Kingdom of Belgium to provide information on the system of excess profit tax rulings, which were based on Article 185(2)(b) of the CIR 92, the Commission adopted the contested decision on 11 January 2016.
7 By the contested decision, the Commission found that the excess profit exemption scheme that was based on Article 185(2)(b) of the CIR 92, pursuant to which the Kingdom of Belgium had issued advance rulings to Belgian entities of multinational groups of undertakings, granting those entities an exemption in respect of part of their profit, constituted a State aid scheme (‘the scheme at issue’) giving its beneficiaries a selective advantage, for the purposes of Article 107(1) TFEU, that was incompatible with the internal market.
8 Thus, the Commission argued, principally, that the scheme at issue granted beneficiaries of the advance rulings a selective advantage, since the excess profit exemption applied by the Belgian tax authorities was a departure from the ordinary Belgian corporate income tax system. In the alternative, the Commission found that the excess profit exemption could confer a selective advantage on beneficiaries of the advance rulings, in so far as that exemption was not in line with the arm’s length principle.
9 Having found that the scheme at issue had been put into effect in breach of Article 108(3) TFEU, the Commission ordered that the aid thus granted be recovered from its beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.
II. Forms of order sought
10 The applicants claim that the Court should:
– annul Articles 1 to 4 of the contested decision;
– in the alternative, annul Article 2(1) of the contested decision;
– order the Commission to pay the costs.
11 The Commission contends that the Court should:
– dismiss the actions as unfounded;
– order the applicants to pay the costs.
III. Law
12 It is appropriate that the present cases should be joined for the purposes of the decision closing the proceedings, in accordance with Article 68(1) of the Rules of Procedure of the General Court, the parties having been heard.
13 The applicants raise seven pleas in law which are identical in both actions, alleging, first, a manifest error of assessment and an error of law in the identification of the legal acts constituting State aid and in their classification as an aid scheme, in breach of Article 1(d) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9); secondly, an error of fact in the description of the reference system, a manifest error of assessment in the analysis of that system and an error of law in the application of Article 107(1) TFEU and Article 1(a) of Regulation 2015/1589; thirdly, an error of assessment of the economic advantage and an error of law in the application of Article 107(1) TFEU and Article 1(a) of Regulation 2015/1589; fourthly, an error of assessment of selectivity for the purposes of Article 107(1) TFEU and Article 1(a) of Regulation 2015/1589 and an error of assessment in the analysis of the mechanisms of the scheme at issue; fifthly, an error of assessment in the analysis of the justification for the conditions for the application of the scheme at issue; sixthly, an error of assessment in the evaluation of the alleged advantage deriving from the scheme at issue and a lack of precision in the examination of that scheme; and, seventhly, that the contested decision breached the principles of the protection of legitimate expectations and legal certainty.
A. Identification of the legal acts constituting an aid scheme
14 By their first plea, the applicants claim, in essence, that the Commission made a manifest error of assessment and an error of law in the interpretation of Article 1(d) of Regulation 2015/1589 in identifying in recital 99 of the contested decision the acts that form the basis of the scheme at issue. They argue that those acts do not reflect the essential elements of that scheme.
15 The Commission contends that the applicants’ arguments should be rejected.
16 In that regard, it should be borne in mind that, in the judgment on appeal, the Court of Justice stated that the contested decision had established the existence of an aid scheme, within the meaning of Article 1(d) of Regulation 2015/1589, resulting from a systematic approach by the Belgian tax authorities, and thus rejected as unfounded the plea relied on by the Kingdom of Belgium and Magnetrol International, alleging that it was incorrectly concluded that there was an aid scheme.
17 In those circumstances, the applicants’ first plea, alleging that the Commission erred in finding that there was an aid scheme, must be rejected, that plea being, in essence, similar to those of the Kingdom of Belgium and Magnetrol International, which were rejected by the Court of Justice in the judgment on appeal.
B. The selectivity of the scheme at issue
18 It is necessary to examine the applicants’ arguments challenging, first, the definition of the reference system in the contested decision (second plea); secondly, the existence of a derogation from that reference system (third and fourth pleas); thirdly, the assessment of the advantage derived from that scheme (sixth plea); and, fourthly, the fact that, if such a derogation were established, it could not be justified under the national tax system (fifth plea).
1. Identification of the reference system
19 By their second plea, the applicants claim that the Commission incorrectly assessed the ordinary Belgian corporate income tax system. They submit, in essence, that the Commission failed to take account, first, of the fact that the Belgian tax system provides for several possible adjustments and, secondly, of the fact that Articles 26, 54, 79 and 207 of the CIR 92 provide, in the determination of the tax base, for components that cannot be found in the accounts. Article 185(2)(b) of the CIR 92 lays down the same principle and therefore forms part of the reference system. Accordingly, the Commission made an error of fact in the description of the reference system, a manifest error of assessment in the analysis of that system and, consequently, an error of law in the application of Article 107(1) TFEU and Article 1(a) of Regulation 2015/1589.
20 The Commission contends that the applicants’ arguments should be rejected.
21 In the present case, the Commission set out in recitals 121 to 129 of the contested decision its position concerning the reference system.
22 Thus, in recitals 121 and 122 of the contested decision, the Commission stated that the reference system was the ordinary system of taxation of corporate profits under the general Belgian corporate income tax system, which had as its objective the taxation of profit of all companies subject to tax in Belgium. The Commission noted that the Belgian corporate income tax system applied to companies resident in Belgium as well as to Belgian branches of non-resident companies. Under Article 185(1) of the CIR 92, companies resident in Belgium were liable to corporate income tax on the total amount of their profit, unless a double taxation treaty applied. Moreover, under Articles 227 and 229 of the CIR 92, non-resident companies were only taxable on specific Belgium-sourced income. The Commission also stated that, in both cases, Belgian corporate income tax was payable on the total profit, which was established according to the rules on calculating profit as defined in Article 24 of the CIR 92. Under Article 185(1) of the CIR 92, read in conjunction with Articles 1, 24, 183, 227 and 229 of the CIR 92, the total profit was calculated as corporate income, minus deductible expenses which were typically recorded in the accounts, so that the profit actually recorded formed the starting point for calculating the total taxable profit, without prejudice to the subsequent application of the upward and downward adjustments provided for by the Belgian corporate income tax system.
23 In recitals 123 to 128 of the contested decision, the Commission explained that the excess profit exemption scheme applied by the Belgian tax authorities was not an inherent part of the reference system.
24 More specifically, in recital 125 of the contested decision, the Commission found that that exemption was not prescribed by any provision of the CIR 92. Article 185(2)(a) of the CIR 92 allowed the Belgian tax administration to make a unilateral primary adjustment of a company’s profits where transactions or arrangements with associated companies were concluded on terms that differed from arm’s length conditions. By contrast, Article 185(2)(b) of the CIR 92 provided for the possibility of making downward adjustments of a company’s profit from an intra-group transaction or arrangement, subject to the additional condition that the profit to be adjusted had to have been included in the profit of the foreign counterparty to that transaction or arrangement.
25 In addition, in recital 126 of the contested decision, the Commission recalled that the objective of the Belgian corporate income tax system was to tax corporate taxpayers on their actual profits, irrespective of their legal form or size and of whether or not they formed part of a multinational group of undertakings.
26 Furthermore, in recital 127 of the contested decision, the Commission noted that, for the purposes of determining taxable profit, integrated multinational group companies were required to set the prices they applied to their intra-group transactions instead of those prices being dictated by the market, which is why Belgian tax law contained certain special provisions applicable to groups, which were generally aimed at putting non-integrated companies and economic entities structured in the form of groups on an equal footing.
27 In recital 129 of the contested decision, the Commission concluded that the reference system to be taken into consideration was the Belgian corporate income tax system, which had as its objective the taxation of profits of all companies resident or operating through a permanent establishment in Belgium in the same manner. That system included the applicable adjustments under the Belgian corporate income tax system, which determined the company’s taxable profit for the purpose of levying Belgian corporate income tax.
28 It should be noted at the outset that the parties are agreed on the starting point: that the ordinary Belgian corporate income tax system constitutes the reference system.
29 The issue between the parties is whether or not the ordinary Belgian corporate income tax system includes the non-taxation of profit considered by the Belgian tax authorities to be excess profit.
(a) The determination of taxable corporate profits and the possibility of making adjustments to recorded profits
30 With regard to the applicants’ arguments challenging the findings of the Commission in relation to the determination of taxable corporate profits in Belgium and the possibility of making adjustments, it must be recalled that, in recital 122 of the contested decision, the Commission indicated that the total profit was established according to the rules for profit determination laid down in the provisions on calculating taxable profit as defined in Article 24 of the CIR 92.
31 Article 24 of the CIR 92 provides that the taxable income of industrial, commercial and agricultural undertakings includes all income from entrepreneurial activities such as profit from ‘all the operations handled by those undertakings or through their intermediation’ as well as profit from ‘all increases in value of their assets … or decrease in value of their liabilities … when that profit has been realised and registered in the accounts’.
32 It follows that the taxable profit, for the purposes of the application of the CIR 92, consists, fundamentally, of all profits recorded by undertakings subject to taxation in Belgium, since those profits constitute the starting point for calculating that tax.
33 Furthermore, it is apparent from the information provided by the Commission in recital 123 of the contested decision that it took into consideration the fact that the basis for calculating taxable profit was the total profit recorded by the entity in question, which was subject to the downward and upward adjustments provided for by the Belgian corporate income tax system.
34 More specifically, the Commission noted in recital 125 of the contested decision that the upward and downward adjustments laid down in Article 185(2)(a) and (b) of the CIR 92 were special tax provisions applicable to situations in which the conditions agreed for a transaction or an arrangement differed from those that would have been agreed between independent companies.
35 Therefore, contrary to what is claimed by the applicants, the Commission did take into account the fact that, in the tax system applicable in Belgium, specifically as regards the taxable base for the taxation of corporate profit, it was possible to make upward and downward adjustments to the profits recorded. For the same reasons, the applicants’ claims that the Commission disregarded the fact that there was a difference in the Belgian tax system between the accounting profit and the taxable profit cannot be upheld.
(b) The non-inclusion of the excess profit scheme in the reference system
36 The applicants claim that the Commission wrongly excluded Article 185(2)(b) of the CIR 92 from the reference system.
37 In the first place, it should be pointed out that the Commission did not exclude Article 185(2)(b) of the CIR 92 from the reference system. However, it did find that the excess profit scheme applied by the Belgian tax authorities was not laid down by that provision and, therefore, did not form part of that system.
38 In the second place, in order to determine whether the Commission correctly concluded that the excess profit scheme was not provided for by Article 185(2)(b) of the CIR 92, it is necessary to examine, on the one hand, the scope of that provision and, on the other, the excess profit scheme as applied by the Belgian tax authorities.
(1) The scope of Article 185(2) of the CIR 92
39 It must be noted that the Commission based its analysis of Article 185(2) of the CIR 92 on the wording of that provision and the texts that accompanied its entry into force. In recitals 29 to 38 of the contested decision, the Commission described in detail, first, the text of Article 185(2) of the CIR 92, introduced by the loi du 21 juin 2004, modifiant le [CIR 92] et la loi du 24 décembre 2002 (Law of 21 June 2004 modifying the CIR 92 and the Law of 24 December 2002) (Moniteur belge, 9 July 2004, p. 54623; ‘the Law of 21 June 2004’); secondly, the explanatory memorandum to the draft of that law, presented to Belgium’s Chamber of Representatives by the Belgian Government on 30 April 2004 (‘the Memorandum to the Law of 21 June 2004’); and, thirdly, the circular of 4 July 2006 concerning Article 185(2) of the CIR 92 (‘the Circular of 4 July 2006’).
40 First of all, in the version applicable in this instance, Article 185(2)(b) of the CIR 92, to which reference is made in recital 29 of the contested decision, is worded as follows:
‘Without prejudice to the second paragraph, for two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:
…
(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 paragraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/436) of 23 July 1990 or of a Convention for the avoidance of double taxation.’
41 Next, the Memorandum to the Law of 21 June 2004, referred to in recital 34 of the contested decision, states that Article 185(2)(b) of the CIR 92 provides for an appropriate correlative adjustment in order to avoid or undo a (potential) double taxation and that a correlative adjustment should be made only if the tax administration or the Advance Ruling Commission considers both the principle and the amount of the primary adjustment to be justified.
42 Moreover, the Memorandum to the Law of 21 June 2004 makes clear that that provision does not apply if the profit made in the partner State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied, since the Belgian tax authorities are not obliged to accept the consequences of an arbitrary or unilateral adjustment in the partner State.
43 Lastly, the Circular of 4 July 2006, referred to in recital 38 of the contested decision, reiterates that such a downward adjustment does not apply in cases where the primary upward adjustment in another tax jurisdiction is exaggerated. That circular, moreover, largely reproduces the text of the Memorandum to the Law of 21 June 2004, in that it recalls that the corresponding downward adjustment is informed by the arm’s length principle, that its objective is to avoid or undo a (potential) double taxation and that it must be made in an appropriate manner, that is, that the Belgian tax authorities can make that adjustment only if both the principle and the amount of that adjustment are justified.
44 Accordingly, it is apparent from the wording of Article 185(2)(b) of the CIR 92 that the downward adjustment is envisaged in the context of cross-border relationships between two associated companies and that it must be a correlative adjustment, in the sense that it is applicable only if the profit that is to be adjusted is already included in the profit of the other 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.
(2) The excess profit scheme
45 The Commission describes the excess profit scheme, as applied by the Belgian tax authorities, in recitals 13 to 22 of the contested decision. In addition, in recitals 39 to 42 of the contested decision, the Commission took into account the replies given by the Belgian Minister for Finance on 13 April 2005, 11 April 2007 and 6 January 2015 to parliamentary questions on the application of Article 185(2)(b) of the CIR 92. Those replies explain the administrative practice of the Belgian tax authorities relating to excess profit.
46 However, it is apparent from those replies that, in the context of the excess profit scheme applied by the Belgian tax authorities, the downward adjustment of profit enabling that excess profit to be deducted from the tax base was not conditional upon the exempted profit having been included in the profit of another company and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies.
47 It is, moreover, apparent from the explanations given by the Kingdom of Belgium, as set out in particular in recitals 15 to 20 of the contested decision, that the exemption applied by the Belgian tax authorities under the scheme at issue was based on an exemption percentage, calculated on the basis of a hypothetical average profit for the Belgian entity, obtained using a profit level indicator derived from a comparison with the profit of comparable standalone companies and fixed as a point in the interquartile range of the chosen profit level indicator of a set of comparable standalone companies. That exemption percentage would have been applicable for a number of years, that is to say, during the period of validity of the advance ruling. Thus, the resulting starting point for the taxation of Belgian entities was not the full profit actually recorded, within the meaning of Articles 1, 24, 183 and Article 185(1) of the CIR 92, to which the adjustments provided for by law in the case of groups of undertakings would have been applied under Article 185(2) of the CIR 92; rather, it was a hypothetical profit that disregarded the total profit made by the Belgian entity in question and the adjustments provided for by law.
48 Therefore, the applicants’ argument that the Commission erred in considering that Article 185(2)(b) of the CIR 92 required a prior adjustment of the profit of an associated undertaking in a foreign country, since advance rulings can be granted only in advance and that profit cannot be declared in advance, cannot succeed. The scheme at issue departs from the wording of Article 185(2)(b) in that it ignores the fact that the downward adjustment provided for by that provision must be correlative to a primary adjustment, whether that primary adjustment is made before or after the grant of an advance ruling. Moreover, it must be noted that the advance rulings at issue specify their period of application, without requiring any primary adjustment in another country. Consequently, the scheme at issue departs from the conditions laid down in Article 185(2)(b) of the CIR 92, since the downward adjustment was granted without taking into account the condition that such an adjustment be correlative.
49 In addition, the applicants’ argument that the Commission and the Court of Justice do not have jurisdiction to interpret national law cannot succeed, since the Commission relied on the information provided by the Belgian authorities in the administrative procedure concerning the failure to take account of the correlative nature of the adjustment at issue. The applicants claim that the Commission does not, at this stage of the development of EU law, have the power autonomously to define the ‘normal’ taxation of an integrated undertaking. It should be recalled in that regard that although, in the absence of EU rules governing the matter, it falls to the Member States to designate the taxable bases and to allocate the tax burden among the different factors of production and economic sectors, it is apparent from the case-law that, in exercising that competence, the Member States must refrain from adopting measures which may constitute State aid, the monitoring of which falls within the Commission’s competence (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 97, 103 and 104).
50 Furthermore, the fact that the objective of Article 185(2)(b) of the CIR 92 is to avoid potential double taxation, as the applicants claim, cannot eliminate the condition expressly laid down, relating to the fact that the profit to be adjusted must already have been included in the profit of another company and that that profit is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. Indeed, it is precisely where the profit of a Belgian entity is already included in the profit of another company, established in another State, that the possibility of double taxation can arise.
51 In the light of all those considerations, it is also necessary to reject the applicants’ claims that the Commission did not take into account Articles 26, 54, 79, 207 and 342 of the CIR 92, which make use, in the determination of the taxable basis, of components that cannot be found in the accounts and that result from the assessment of what is a normal revenue or normal expenses, or even a normal profit.
52 First, the fact that the Commission did not expressly include those provisions in the description of the reference system does not mean that that description is vitiated by an error, since the scheme at issue is not based on any of those provisions.
53 Secondly and in any event, as is apparent from paragraphs 39 to 44 above, the scheme at issue is not based on the wording of Article 185(2)(b) of the CIR 92, but on a contra legem application of that provision.
(3) Conclusion on the non-inclusion of the excess profit scheme in the reference system
54 It follows from the above that, while Article 185(2)(b) of the CIR 92 requires, for the purposes of a downward adjustment, that the profit to be adjusted should already have been included in the profit of another company and be 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 excess profit scheme was applied by the Belgian tax authorities without those conditions being taken into consideration.
55 Accordingly, contrary to the applicants’ contention, the Commission was right to find that the excess profit exemption applied by the Belgian tax authorities under the scheme at issue did not form part of the reference system.
56 It follows from the above that the applicants’ second plea seeking to challenge the Commission’s identification of the reference system in the contested decision must be rejected.
2. The existence of a derogation from the reference system that differentiates between operators who are in a comparable situation
57 The applicants claim that the Commission has not correctly established the existence of a derogation from the reference system that differentiates between operators who are in a comparable situation.
58 The Commission contends that the applicants’ arguments should be rejected.
59 It should be borne in mind that, as is apparent from the case-law, in the case of a tax aid scheme, the Commission must prove that the scheme at issue differentiates between its beneficiaries and undertakings that are in a comparable factual and legal situation (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).
60 In the contested decision (Section 6.3.2.1), the Commission found, principally, that the Belgian excess profit exemption scheme conferred a selective advantage on its beneficiaries by derogating from the general Belgian corporate income tax system, in so far as that system provided for companies to be taxed on their total profit, that is, their profit actually recorded, not on a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law.
61 Thus, the Commission concluded, in recital 136 of the contested decision, that Article 185(2)(b) of the CIR 92, on which the Kingdom of Belgium relied as the basis for the scheme at issue, did not have the meaning or effect suggested by that scheme and accordingly that that scheme constituted, rather, a derogation from the general rule under Belgian tax law according to which profit actually recorded is taxed. The Commission also pointed out that that scheme was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.
62 The Commission then went on, in recitals 137 to 141 of the contested decision, to develop its reasons for considering that the scheme at issue differentiated between operators who, in the light of the objective assigned to the Belgian tax system, were in a comparable legal and factual situation.
(a) The existence of a derogation from the reference system
63 It should be recalled at the outset that what the Commission regarded as not forming part of the reference system and thus derogating from it is the excess profit scheme, that is to say, the downward adjustment, as applied by the Belgian tax authorities to a certain part of the taxable profit, referred to as the ‘excess’.
64 However, as indicated in paragraphs 54 and 55 above, in the light of the wording of Article 185(2)(b) of the CIR 92, the downward adjustment of the taxable profit is conditional on the profit of a given company that is to be deducted having already been included in the profit of another company, and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. By contrast, the Belgian tax authorities’ practice of making a unilateral downward adjustment without the need to establish that the profit that is to be adjusted has already been included in the profit of another company and that it is profit which would have been made by that other company if the relevant transactions had been between independent companies is not provided for in Article 185(2)(b) of the CIR 92.
65 In fact, contrary to the applicants’ contention and as the Court of Justice confirmed in the judgment on appeal, even though the tax rulings formally invoked Article 185(2)(b) of the CIR 92, the excess profit exemption scheme, which the Commission classified as a State aid scheme, was based on the Belgian tax authorities’ consistent administrative practice. As has just been established in paragraph 64 above, that practice differed from what was provided for in Article 185(2)(b) of the CIR 92.
66 Accordingly, the Commission was right to find that the excess profit exemption, as applied by the Belgian tax authorities, constituted a derogation from the reference system accepted by the Commission, that is to say, the ordinary Belgian corporate income tax system, which included, in particular, Article 185(2)(b) of the CIR 92, as has been noted in paragraph 37 above.
(b) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable factual and legal situation
67 As regards the Commission’s finding that the scheme at issue differentiates between the beneficiaries of the exemptions and other operators who are in a comparable situation, it should be noted that, in recitals 138 to 140 of the contested decision, the Commission put forward three alternative grounds for its conclusion. It is appropriate to examine each of these in turn, for the sake of completeness.
(1) Different treatment of beneficiaries forming part of a multinational group of undertakings
68 The applicants dispute the fact that the scheme at issue is selective, given that the conditions laid down in Article 185(2)(b) of the CIR 92 are not intended to limit that specific regime to multinational groups.
69 Furthermore, the fact that the scheme at issue is mainly applied to multinational companies is not sufficiently distinctive to constitute selectivity for the purposes of Article 107 TFEU, given that the measure at issue does not target any type of service or production of goods.
70 In recital 138 of the contested decision, the Commission asserted that the scheme was selective because it was only open to entities that were part of a multinational group of undertakings.
71 It is true that Article 185(2)(b) of the CIR 92 is intended to apply to integrated multinational group companies. However, the purpose of Article 185(2) of the CIR 92 is precisely to put associated and unrelated undertakings on an equal footing.
72 In that regard, as stated in paragraph 27 above, it must be recalled that the objective of the ordinary Belgian corporate income tax system, as is apparent from recital 129 of the contested decision, is the taxation of all the taxable profits of the entities subject to Belgian corporate income tax, whether they are standalone entities or form part of a multinational group of undertakings. In addition, as indicated in paragraph 31 above, according to the normal rules of taxation in Belgium, the starting point for the taxable profit of undertakings is all the profit realised or registered in their accounts.
73 By contrast, the excess profit exemption applied by the Belgian tax authorities, in so far as it derogates from Article 185(2) of the CIR 92, granted a tax reduction to the beneficiaries concerned, on the ground that they were part of a multinational group of undertakings, by allowing them to deduct part of their recorded profit from their tax base, without that exempted profit having been included in the profit of another group company.
74 Therefore, entities forming part of a multinational group which benefited under the scheme at issue from an excess profit exemption, in the form of an exemption percentage calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, would be treated differently from other entities, whether standalone or forming part of a group of undertakings, which would have been taxed in accordance with the normal Belgian rules of corporate income tax on their total profit actually recorded, where appropriate, in the case of integrated entities, after adjustment pursuant to Article 185(2)(b) of the CIR 92 under the conditions laid down in that provision.
75 Accordingly, the Commission cannot be criticised for having stated that the entities forming part of a multinational group which benefited from the excess profit exemption pursuant to the scheme at issue, as an adjustment which is not as such provided for by law, were treated differently from other entities in Belgium that did not benefit from it, although those entities were in a comparable factual and legal situation, in the light of the objective of the ordinary Belgian corporate income tax system, which is the taxation of all taxable profits of all companies resident or operating through a permanent establishment in Belgium.
76 First, those considerations cannot be called into question by the applicants’ argument that Article 185(2) of the CIR 92 concerns only companies forming part of a multinational group which carry out cross-border transactions and that, therefore, a difference in treatment between internal and cross-border transactions is justified.
77 First of all, it should be noted that, in examining the scheme at issue, the Commission did not base its assessment solely on the cross-border nature of the transactions carried out by Belgian entities forming part of a multinational group. The Commission compared the taxation of those entities established in Belgium, on the profits resulting from their transactions, whether cross-border or internal, to the taxation of other companies established in Belgium.
78 Next, it must be stated that, in the light of the objective of the Belgian tax system referred to in paragraph 72 above, multinational groups are not in a different situation from other taxpayers simply because they carry out cross-border transactions. Contrary to what the applicants claim, it is precisely in order to ensure equality between standalone companies and companies forming part of a multinational group that the mechanism of Article 185(2) of the CIR 92 was introduced into the Belgian tax system.
79 Lastly, the argument based on the judgment of 21 January 2010, SGI (C‑311/08, EU:C:2010:26), relied on by the applicants, is ineffective in that regard. In that judgment, the Court of Justice ruled on the proportionality of the derogation introduced in Article 26 of the CIR 92 in relation to the objectives pursued by that derogation, in that case the prevention of tax avoidance and the balanced allocation of the power to impose taxes between the Member States. That judgment is thus irrelevant in this instance.
80 Secondly, the applicants’ argument as to the lack of sectoral selectivity is also unfounded. It should be noted that it is clear from the case-law that the diversity and size of the sectors to which undertakings benefiting from a State initiative belong do not permit such an initiative to be regarded as a general measure of economic policy (see, to that effect, judgments of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraph 32, and of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 48). Thus, the fact that the measures at issue are not limited to a particular sector does not mean that those measures are not selective.
81 It follows from paragraphs 70 to 80 above that the applicants’ first complaint must be rejected in its entirety.
(2) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium
82 The applicants claim that the Commission was wrong to take the view that the scheme at issue applied to undertakings that amended their business model by establishing new activities in Belgium.
83 In recital 139 of the contested decision, the Commission stated that the scheme at issue was de jure selective in so far as it was not open to companies that may have decided not to make investments, create employment or centralise activities in Belgium. The Commission noted that Article 20 of the Law of 24 December 2002 made the adoption of advance rulings conditional on the existence of a situation or of a transaction that had not had tax consequences and that an advance ruling was necessary in order to benefit from the excess profit exemption.
84 The Commission also noted that, in the sample of advance rulings granting an excess profit exemption that it had analysed, each ruling contained references to substantial investments, centralisation of activities or the creation of employment in Belgium. Accordingly, it found that the ‘new situation’ requirement that was a prerequisite for requests for advance rulings by which requesting parties sought to benefit from the excess profit exemption resulted in multinational groups that amended their business model by establishing new operations in Belgium being treated differently from any other economic operators, including multinational groups, that continued to operate under their existing business models in Belgium.
85 In that regard, it should be recalled that, in paragraphs 142 to 144 of the judgment on appeal, the Court of Justice confirmed that the choice of a sample consisting of 22 advance rulings, issued in 2005, 2007, 2010 and 2013, was appropriate and sufficiently representative.
86 It should also be noted that Article 20 of the Law of 24 December 2002 defines an ‘advance ruling’ 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. Moreover, Article 22 of that law makes clear that an advance ruling cannot be issued, in particular, when the request concerns situations or transactions identical to those having already had tax consequences as regards the requesting party.
87 Admittedly, it cannot be inferred from the provisions referred to in paragraph 86 above that the making of investments, creation of employment or centralisation of activities in Belgium is explicitly required as a condition for obtaining an advance ruling.
88 However, it is apparent from the sample of advance rulings analysed by the Commission in the contested decision that those rulings were in fact granted following requesting parties’ proposals to invest, to relocate certain operations or to create a certain number of jobs in Belgium. Indeed, the three examples described in footnote 80 to the contested decision, in which the parties requesting the advance rulings in question described their plans for investment and for recentralisation of activities in Belgium, show that, in practice, the condition for the issue of an advance ruling, that there should be a situation that had not had tax consequences, was satisfied by investments, by the centralisation of activities or by the creation of employment in Belgium.
89 In that regard, it should be borne in mind that, in the present case, it is precisely the administrative practice of the Belgian tax authorities – consisting in exempting profits by advance rulings – that has been considered to derogate from what is provided for in Article 185(2)(b) of the CIR 92. As a result of those advance rulings, their beneficiaries obtained an advantage consisting in a reduction in their tax base, because of the exemption of ‘excess’ profit. By contrast, entities that did not amend their business model in order to create new tax situations – which, in the light of that practice, consisted systematically in investments, centralisation of activities or creation of employment in Belgium – and therefore did not request an advance ruling were taxed on all of their taxable profits. Consequently, the scheme at issue resulted in companies that were in a comparable factual and legal situation being treated differently, in the light of the objective of the ordinary Belgian corporate income tax system.
90 In those circumstances, the Commission cannot be criticised for having stated, in recital 139 of the contested decision, that the system at issue was selective because it was not open to companies that had decided not to make investments, centralise activities or create employment in Belgium.
(3) Different treatment in comparison with undertakings that are part of a small group
91 The applicants submit that the scheme at issue is not selective by virtue of applying only to large multinational undertakings. In their view, the Commission characterised as requirements a number of factors that are merely features common to undertakings covered by the sample of 22 advance rulings surveyed. Moreover, a taxpayer may prefer to obtain the exemption of its excess profit a posteriori, according to the procedures organised under double taxation treaties. Furthermore, companies belonging to modest-sized groups could have obtained advance rulings on the exemption of their excess profit, such as, for example, a company listed in the contested decision.
92 In this instance, the Commission stated, in recital 140 of the contested decision, that the scheme at issue was selective since only Belgian entities forming part of a large or medium-sized multinational group could effectively benefit from the excess profit exemption.
93 In recital 140 of the contested decision, the Commission indicated that only entities belonging to a sufficiently large multinational group had an incentive to obtain an advance ruling, given that it was only within large corporate groups that synergies, economies of scale and other benefits were likely to generate a significant profit that would justify the request for an advance ruling. The Commission also noted that the process for obtaining such a ruling required a detailed request presenting the new situation that justified the exemption together with excess profit studies, which was more cumbersome for small corporate groups than for large corporate groups.
94 In that regard, it is not disputed that, within the sample of 22 advance rulings under the scheme at issue that was reviewed by the Commission, as described in recital 65 of the contested decision, and which was considered appropriate and representative in paragraphs 142 to 144 of the judgment on appeal, none of those rulings concerned entities belonging to small groups of undertakings.
95 Furthermore, as indicated in recital 66 of the contested decision, it is undisputed that, during the administrative procedure, following that finding by the Commission on the basis of the sample of 22 advance rulings and in response to a request by the Commission to that effect, the Kingdom of Belgium was unable to substantiate its claim that the exemption had also been granted to undertakings belonging to small corporate groups.
96 Consequently, in the light of the administrative practice referred to by the Commission, it is undertakings forming part of large and medium-sized groups that relied on the excess profit exemption scheme, to the exclusion of undertakings forming part of a small corporate group.
97 In those circumstances, the Commission cannot be criticised for having stated, in recital 140 of the contested decision, that the system at issue was selective because it was not open to undertakings that were part of a small group.
98 Moreover, contrary to what the applicants claim, the scheme at issue cannot achieve the same result as international agreements for the elimination of double taxation. Under that scheme, part of the Belgian entity’s profit is completely exempt from taxation, whereas agreements for the elimination of double taxation are intended to prevent the same profit from being taxed in two different States. Furthermore, even if, under an agreement for the elimination of double taxation, that profit had not been taxed in Belgium, such non-taxation cannot confer a selective advantage, inasmuch as it would have been available to all entities in the same factual and legal situation in the light of the objective of the Belgian tax system.
99 In any event, even if the Commission had erred in relying on that ground relating to different treatment in comparison with undertakings forming part of a small group, that would not affect the validity of the other two grounds put forward by the Commission, which have been examined, respectively, in paragraphs 70 to 81 and in paragraphs 83 to 90 above.
(c) Conclusion on the existence of a derogation from the reference system
100 In the light of the above, the Commission did not err in concluding its primary line of reasoning by finding, first, that the excess profit exemption scheme derogated from the ordinary Belgian corporate income tax system and, secondly, that the scheme at issue was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.
101 It follows from all of the above considerations that the applicants have not demonstrated an error of law or an error of assessment on the part of the Commission in its assessment of the selectivity of the scheme at issue under the primary line of reasoning put forward in the contested decision.
102 In those circumstances, it must be concluded that the applicants’ fourth plea must be rejected.
103 It follows that it is not necessary to examine the merits of the applicants’ third plea, which challenges, in essence, the subsidiary line of reasoning with regard to selectivity which the Commission set out in Section 6.3.2.2 of the contested decision.
3. Examination of the economic advantage derived from the scheme at issue
104 By their sixth plea, the applicants allege an error of assessment and a lack of precision in the examination of advantage as described in recitals 208 to 211 of the contested decision. According to the applicants, Article 185(2)(b) of the CIR 92 does not provide for a deduction mechanism, but a profit-adjustment mechanism, by means of an exemption from the tax base when compared to recorded profit. The advance rulings do not address a deduction issue and even less a possible carry forward of any excess of deduction in the event of an insufficient positive tax base against which the deduction would be applied.
105 The Commission contends that the applicants’ arguments should be rejected.
106 In that regard, it should be noted that, first, even if there were a difference in tax matters between a tax exemption and a tax deduction, that would not call into question the Commission’s finding as to the description of the scheme at issue and the existence of a selective advantage conferred by it, in accordance with the considerations set out, in response to the fourth plea, in paragraphs 67 to 102 above.
107 Secondly, recitals 208 and 209 of the contested decision relate to the method of recovery examined in Section 7.2 of that decision, and not to the description of the advantage conferred by the scheme at issue. Accordingly, the applicants’ arguments based on those recitals are not capable of calling into question the lawfulness of the contested decision in so far as it concerns the finding of a selective advantage.
108 Therefore, the sixth plea must, in any event, be rejected.
4. Whether there is any justification based on the nature and general scheme of the Belgian tax system
109 By their fifth plea, the applicants submit that the Commission made an error of assessment in its analysis of the justification for the scheme at issue. Thus, they claim, in essence, that the contested decision disregards the fact that the conditions for the application of the scheme at issue are the result of inherent mechanisms necessary for the functioning and effectiveness of the Belgian corporate income tax system. Moreover, in their submission, it is not disproportionate for a State to limit the taxable basis of a taxpayer’s income. The advantages resulting from disparities arising from national tax rules in a cross-border context are outside the scope of State aid rules, since those disparities are not caused by the Kingdom of Belgium.
110 The Commission contends that the applicants’ arguments should be rejected.
111 It should be noted that, in recitals 173 to 181 of the contested decision, the Commission concluded, in essence, that the Kingdom of Belgium had not been able to establish that the measures at issue actually served the purpose of avoiding double taxation. According to the Commission, in so far as Article 185(2)(b) of the CIR 92 provided for a downward adjustment of a company’s profit if it had been included in the profit of another company, the exemption applied by the Belgian tax authorities, without it being necessary to prove that the excess profit to be exempted had been included in the tax base of another company, could not be justified by the general scheme of the system. Thus, the Commission concluded that the unilateral exemption at issue did not address situations of double taxation in a necessary and proportionate manner.
112 In that regard, it must be noted that, according to the case-law, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that context, it is necessary to distinguish between, on the one hand, the objectives attributed to a particular tax regime and which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives. Thus, tax exemptions which are the result of an objective that is unrelated to the tax system of which they form part cannot circumvent the requirements under Article 107(1) TFEU (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64, 65, 69 and 70).
113 In this instance, it has been determined, notably in paragraph 64 above, that the excess profit exemption applied by the Belgian tax authorities was not conditional on it being demonstrated that that profit had been included in the profit of another company. Nor was that excess profit required actually to have been taxed in another State. Accordingly, it must be held that the measures at issue were not conditional on there being a situation of actual or possible double taxation.
114 In addition, the applicants have not adduced any evidence that the Kingdom of Belgium has succeeded in demonstrating that the excess profit system was justified on account of disparities arising from national tax rules. As is apparent from recital 172 of the contested decision, the Kingdom of Belgium argued that the excess profit scheme was justified to prevent potential double taxation.
115 In those circumstances, it cannot be maintained that the excess profit exemption, as applied by the Belgian tax authorities, was intended to avoid either actual or possible double taxation. Therefore, the Commission was right to conclude that such an exemption did not address situations of double taxation in a necessary and proportionate manner.
116 Moreover, contrary to the applicants’ claims, it is precisely by taking account of the objective of the Belgian tax system that the Commission found that the scheme at issue constituted a derogation from that system.
117 The fifth plea in law must therefore be rejected.
C. The principles of the protection of legitimate expectations and legal certainty
118 By their seventh plea, the applicants claim that they requested an excess profit exemption on the basis of a transfer pricing analysis in line with the Organisation for Economic Co-operation and Development (OECD) guidelines conducted by specialised professionals and scrutinised by the Advance Ruling Commission and that, therefore, they expected that the rulings of the Advance Ruling Commission were in line with the arm’s length principle. They add that, even if the scheme at issue were to be considered unlawful State aid, the recovery of all aid since it was granted could not be imposed without breaching the principles of the protection of legitimate expectations and legal certainty. In addition, they submit that Article 2 of the contested decision should be annulled in so far as it does not provide for transitional measures and imposes the recovery of the aid granted since the scheme at issue was first applied.
119 The Commission contends that the applicants’ arguments should be rejected.
120 According to settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him or her precise assurances, caused to entertain justified expectations may rely on that principle (see judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 76 and the case-law cited).
121 In that regard, it must be noted that the applicants merely assert that they could not have anticipated that the advance rulings would constitute State aid. They do not put forward any argument, supported by evidence, to establish that they received precise assurances from the Commission, within the meaning of the case-law cited in paragraph 120 above, that might have caused them to entertain justified expectations that the Commission would not have regarded exemptions granted by advance rulings deviating from the general system of corporate taxation in Belgium, and in particular Article 185(2)(b) of the CIR 92, as unlawful and incompatible State aid.
122 In any event, since the Commission correctly found, as part of its primary line of reasoning, that the scheme at issue had granted its beneficiaries a selective advantage for the purposes of Article 107 TFEU, the applicants’ arguments alleging breach of the principle of the protection of legitimate expectations because of the Commission’s findings as part of its subsidiary line of reasoning are ineffective.
123 Accordingly, the Commission was right to order recovery of all of the unlawful aid received by the beneficiaries of that aid, in so far as they could not entertain a legitimate expectation that the Commission should be required to provide for transitional measures in their favour. According to settled case-law, removing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful and seeks to re-establish the previous situation (see judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 74 and the case-law cited).
124 Moreover, it should be borne in mind that the principle of legal certainty – which is one of the general principles of EU law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (see judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and the case-law cited).
125 In this instance, it must be held that the legal rule that led to the adoption of the contested decision, namely Article 107 TFEU, is clear and precise.
126 Since the advance rulings granted under the scheme at issue fulfil the conditions set out in Article 107 TFEU for being regarded as incompatible with the internal market, the advantage granted through those rulings must be the subject of a recovery order.
127 In the light of the above, the applicants’ arguments in relation to a breach of the principle of the protection of legitimate expectations and of the principle of legal certainty must be rejected, as must the seventh plea in its entirety.
128 It follows from all of the above that the actions must be dismissed.
IV. Costs
129 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants in the present cases have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber, Extended Composition)
hereby:
1. Orders that Cases T‑467/16 and T‑681/16 be joined for the purposes of the present judgment;
2. Dismisses the actions;
3. Orders Flir Systems Trading Belgium to bear its own costs and to pay those incurred by the European Commission in Case T‑467/16;
4. Orders Henkel Belgium to bear its own costs and to pay those incurred by the Commission in Case T‑681/16.
Marcoulli | Frimodt Nielsen | Tomljenović |
Delivered in open court in Luxembourg on 20 September 2023.
V. Di Bucci | | M. van der Woude |
Table of contents
I. Background to the dispute
II. Forms of order sought
III. Law
A. Identification of the legal acts constituting an aid scheme
B. The selectivity of the scheme at issue
1. Identification of the reference system
(a) The determination of taxable corporate profits and the possibility of making adjustments to recorded profits
(b) The non-inclusion of the excess profit scheme in the reference system
(1) The scope of Article 185(2) of the CIR 92
(2) The excess profit scheme
(3) Conclusion on the non-inclusion of the excess profit scheme in the reference system
2. The existence of a derogation from the reference system that differentiates between operators who are in a comparable situation
(a) The existence of a derogation from the reference system
(b) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable factual and legal situation
(1) Different treatment of beneficiaries forming part of a multinational group of undertakings
(2) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium
(3) Different treatment in comparison with undertakings that are part of a small group
(c) Conclusion on the existence of a derogation from the reference system
3. Examination of the economic advantage derived from the scheme at issue
4. Whether there is any justification based on the nature and general scheme of the Belgian tax system
C. The principles of the protection of legitimate expectations and legal certainty
IV. Costs