General Court Judgment in Amazon and Luxembourg v European Commission

Also published at: https://www.taxriskmanagement.com/amazon-luxembourg-tax-ruling/

READ THE FULL JUDGMENT HERE

Case Information:

• Court: General Court of the European Union (Seventh Chamber, Extended Composition)
• Case Nos: T-816/17 and T-318/18
• Applicants: Grand Duchy of Luxembourg (T-816/17) and Amazon EU Sàrl, Amazon.com Inc. (T-318/18)
• Defendant: European Commission
• Judgment Date: 12 May 2021

The General Court of the European Union ruled in favour of Luxembourg and Amazon, annulling the European Commission’s decision that Luxembourg granted illegal state aid to Amazon through tax rulings. The court found that the European Commission failed to demonstrate that the tax ruling conferred a selective economic advantage on Amazon, thus negating the argument that it constituted illegal state aid under EU law.

Key Points of the Judgment

Background

The case involves a dispute over Amazon’s tax treatment by Luxembourg’s tax authorities. In 2003, Amazon restructured its European operations, centralizing them in Luxembourg. Amazon obtained a tax ruling from Luxembourg, which was subsequently challenged by the European Commission. The Commission argued that this ruling constituted illegal state aid, giving Amazon an unfair advantage over competitors.

Core Dispute

The core dispute concerned whether Luxembourg’s tax ruling provided Amazon with an undue advantage, violating EU state aid rules. The Commission claimed that the tax ruling resulted in a lower tax liability for Amazon, which was unavailable to other companies in similar situations.

Court Findings

The General Court found that the European Commission did not adequately prove that the tax ruling provided a selective advantage to Amazon. The court emphasized that the transfer pricing methods used by Luxembourg were not proven to deviate from market norms sufficiently to constitute state aid.

Outcome

The court annulled the European Commission’s decision, thereby ruling that Luxembourg did not grant illegal state aid to Amazon. This decision was significant in defining the limits of the European Commission’s authority in state aid cases involving tax rulings.

Transfer Pricing Method Used

The transfer pricing method at issue involved a complex arrangement where LuxOpCo was remunerated for its ‘routine functions,’ with the residual profits allocated to LuxSCS. The method was largely based on the transactional net margin method (TNMM), which was contested by the Commission and eventually ruled on by the court.

Major Issues and Areas of Contention

1. Transfer Pricing and Arm’s Length Principle: The case revolved around the interpretation of the arm’s length principle and whether the transfer pricing arrangements between Amazon and Luxembourg adhered to it.
2. Selective Advantage: A key contention was whether the tax ruling selectively advantaged Amazon, which the court ultimately found was not sufficiently demonstrated by the Commission.
3. State Aid vs. National Taxation: The case highlighted tensions between EU state aid rules and national tax sovereignty, especially concerning how multinational companies are taxed within the EU.

Expected or Controversial Decision?

This decision was somewhat expected given similar rulings in other state aid cases involving large multinationals. However, it was controversial because it underscores the challenges the European Commission faces in proving that national tax rulings constitute illegal state aid.

Significance for Multinationals

This ruling is significant for multinationals as it reaffirms the necessity of ensuring that their tax arrangements, particularly those involving transfer pricing, adhere strictly to market standards to avoid challenges under EU state aid rules.

Significance for Revenue Services

For revenue services, the ruling emphasizes the importance of maintaining clear and defensible tax rulings, particularly about multinational enterprises, to avoid costly legal disputes and potential clawbacks of tax benefits.

Importance for MNEs to Engage with Tax Experts

Given the complexity and potential for disputes in cases like this, multinational enterprises (MNEs) must engage with tax experts to ensure compliance with local tax laws and international standards. Proper tax risk management processes and the establishment of a tax steering committee can help prevent such disputes by ensuring that tax strategies are thoroughly vetted and aligned with regulatory expectations.

Preventative Measures

• Tax Risk Management Process: Implementing a robust tax risk management process allows for identifying and mitigating potential tax risks before they become problematic.
• Tax Steering Committee: A tax steering committee, comprising internal and external experts, can oversee and guide the company’s tax strategy, ensuring that it remains compliant and aligned with best practices.  Click here to download our free eBook: “Driving Tax Compliance: The Essential Role of the Tax Steering Committee“.