The interaction between national tax regimes and the EU rules on state aid is currently headline news, with Apple, Fiat, Amazon and Starbucks amongst those appealing large state aid recovery orders. The UK's Controlled Foreign Companies (CFC) regime is also currently being scrutinised by the European Commission from a state aid perspective. Last week the EU's top court, the CJEU, quashed a European Commission decision which had found that certain aspects of the German tax regime relating to carried forward tax losses following a restructuring should be considered illegal state aid as well as annulling the requirement that Germany recover the "aid" from companies who had benefited from the carry forward provisions. Significantly, the CJEU held that when assessing whether a tax measure amounts to state aid you cannot simply focus on some provisions that have been artificially taken from a broader legislative framework. The Court held it was wrong to focus on the exceptions to rules relating to the forfeiture of carried forward losses whilst ignoring the more general rules allowing carried forward losses.
The UK is currently seeking to convince the Commission that any state aid assessment of the CFC regime should not simply focus on the exemptions which are applied to certain financing transaction but should take account of the fact that the purpose of the UK rules is to stop artificial diversion of profits from the UK. This latest CJEU ruling appears to strengthen the UK's arguments about the need to look at the bigger picture. It will be interesting to see how the Commission proceeds.
As also noted, in essence, by the Advocate General in point 109 of his Opinion, it follows from the case-law of the Court, recalled in paragraphs 90 to 93 of the present judgment, that the selectivity of a tax measure cannot be precisely assessed on the basis of a reference framework consisting of some provisions that have been artificially taken from a broader legislative framework. Therefore, by thus excluding from the relevant reference framework in the present case the general rule of loss carry-forward, manifestly the General Court defined it too narrowly.