Between State Aid and the Fundamental Freedoms: The Arm’s Length Principle and EU Law

Abstract

The article examines the relationship between the rules on State aid and the fundamental freedoms when ruling on the compatibility with EU law of domestic transfer pricing provisions, based on the arm’s length principle. It shows that the Commission’s recent practice concerning State aid on advance pricing agreements is difficult to reconcile with the ECJ’s case law when ruling on the arm’s length principle under the fundamental freedoms. On the one hand, the Member States should not be too restrictive when applying their transfer pricing rules, as stemming from the proportionality requirement under the fundamental freedoms,while on the other hand they must not be too lenient either, otherwise they risk a State aid investigation. Pressed at both ends by these opposing forces, the margin for error becomes narrow or, sometimes, non-existent.

Note: Reprinted from Common Market Law Review, volume number 56, 2019, page numbers 1-44, with permission of Kluwer Law International.

Keywords: Fiscal State Aid, EU Law, Fundamental Freedoms, EU Tax Law, Advanced-Pricing Agreement