Thursday, February 23, 2017

EU State Aid panel at IFA US branch annual meeting

Today I was the lone American on the IFA panel I mentioned in my prior post, discussing the raft of ongoing, or perhaps soon to be ongoing, EU state aid cases before the European Commission (and ultimately the European Court of Justice).  Three quick takeaways:

1) EU tax lawyers with whom I spoke believe that the EC's Apple ruling, whatever one thinks of it on the merits, is extremely well-crafted from a legal standpoint.

2) I noted, although I doubt this was a surprise to many people, that it's currently difficult to imagine U.S. tax policymakers over the next few years paying close attention to the state aid cases. They have a lot of higher agenda items at present, and it's not clear that the Treasury will ever, in the next few years, get up to having a normal-sized bandwidth.

3) Once the EU state aid precedents are out there by reason of EC decisions (assuming they are upheld by the ECJ), EU law permits a whole lot of causes of action attacking claimed state aid to be brought by a wide range of actors: NGOs, rival firms, trade unions, and so forth. These actions would not involve the EC, and they would initially be brought in national courts, with ultimate appealability to the ECJ.  So the French and German governments, say, if they have made arrangements with multinational or other companies that are open to challenge under state aid doctrine, might find themselves litigating in defense. I was told that this could definitely happen as to France, and that Germany's recent move supporting Spain in the Santander litigation indicates that it is feeling sensitive too, whether on this ground or based on concern that the EC is over-reaching as an EU political matter.

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