Of Apples, Cars, and Coffee – Against the Commission's Remedy to Unlawful Tax Rulings

Abstract

Advance pricing agreements (APAs) are the most effective tool for undertakings to reduce the uncertainty regarding the fiscal liability arising out of transactions regulated by transfer pricing. Multinationals rely on APAs to gain confidence in complicated operations and attain better efficiency. In several recent decisions, the European Commission established that APAs can give rise to unlawful granting of State aid, if they provide for transfer pricing methodologies that do not accurately reflect market conditions. However, the Commission does not describe any method to establish the lawfulness of the adopted pricing methodology objectively. Therefore, this article argues that recovery of such alleged unduly granted aid violates the principle of protection of legitimate expectations, which is a fundamental principle of EU law. As such, recovery should be deemed unlawful.

Keywords: transfer pricing, advance pricing agreements, arm's length principle, legitimate expectations, state aid

JEL Classification: F23, H20, H25, H26, K34