The European Commission has issued two injunctions ordering Estonia and Poland to deliver within one month information requested by the Commission on their tax rulings practice. Both countries have to-date refused to respond in full to previous information requests. Should any of the two fail to deliver the missing information within one month, the Commission may refer that Member State to the EU Court of Justice.
The previous information requests to Estonia and Poland were sent as part of the Commission extending its state aid enquiry into national tax ruling practices to cover all EU Member States in December 2014. The enquiry is aimed at clarifying allegations that tax rulings may constitute state aid and to allow the Commission to take an informed view of the practices of all Member States. With the exception of Estonia and Poland, all EU countries have cooperated and provided the required information in full. On the basis of the information received, the Commission will today ask 15 Member States to provide a substantial number of individual tax rulings. Requesting these tax rulings does not prejudge whether this will lead to individual state aid investigations concerning the recipients of these tax rulings.
EU Commissioner in charge of competition policy Margrethe Vestager said: "We are putting together the puzzle of tax ruling practices in the EU. Sometimes we had to ask Member States twice – or more – to provide information. Still, there are pieces missing: To have a complete overview we also need full information from Estonia and Poland. But based on the replies we have now received, I am today asking for tax rulings from 15 countries. We want to analyse them carefully to find out whether Member States employ tax rulings to grant companies selective tax advantages that breach EU state aid rules."
Tax rulings are comfort letters issued by tax authorities to an individual company on a specific tax matter. They are not as such a problem under EU state aid rules. However, if a tax ruling results in a Member State providing selective advantages to specific companies or groups of companies, this distorts competition in the Single Market in breach of EU state aid rules.
To-date, Estonia and Poland have failed to adequately respond to the request for information, arguing fiscal secrecy and the principle of proportionality. They have only submitted general information but refused to provide a specific and detailed overview of tax rulings issued from 2010 to 2013.
However, the Commission is legally entitled to request any information it deems necessary for a state aid investigation, and Member States are under a legal obligation to respond. Confidential fiscal information remains adequately protected, as the Commission is itself bound by rules of confidentiality.
Since June 2013, the Commission has been investigating the tax ruling practices of Member States. It extended this information inquiry to all Member States in December 2014. Today, letters requesting individual tax rulings are being sent to Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Lithuania, Portugal, Romania, Slovakia, Spain and Sweden. Previously, the Commission had already requested individual tax rulings from Cyprus, Ireland, Luxembourg, Malta, the Netherlands and the UK. On the basis of information received, the Commission did not at this stage have indications that merit asking Bulgaria, Croatia, Greece, Latvia and Slovenia for tax rulings
In March 2014, the Commission adopted two injunctions ordering Luxembourg to deliver information requested by the Commission regarding tax rulings and intellectual property tax regimes. In December 2014, Luxembourg acknowledged the Commission's powers to investigate their general tax rulings practice under State aid rules and provided the missing information in full.
The Commission has five ongoing in-depth investigations where it raised concerns that tax rulings may give rise to state aid issues. In June 2014, the Commission opened in-depth probes concerning Apple in Ireland, Starbucks in The Netherlands and Fiat Finance & Trade in Luxembourg. In October 2014, the Commission opened an investigation regarding Amazon in Luxembourg. The probes examine whether the individual tax rulings give a selective advantage to a company that its competitors do not have, in breach of EU state aid rules. Most recently, in February 2015 the Commission has also opened an in-depth probe into a Belgian tax scheme, which allows group companies to substantially reduce their corporation tax liability in Belgium on the basis of so-called "excess profit" tax rulings.
The Commission is also working to ensure greater transparency on tax rulings, as part of its agenda against tax avoidance and harmful tax competition. Its March 2015 proposal to require Member States to automatically exchange information with each other on their tax rulings was endorsed by Finance Ministers at the Informal ECOFIN in Riga, and technical negotiations are progressing in Council. It should enter into force on 1 January 2016. On 17 June, the Commission will also adopt an Action Plan to make corporate taxation fairer, more efficient and more transparent in the EU. The Action Plan will set out measures to tackle corporate tax avoidance and promote growth-friendly taxation in the Single Market (see also College orientation debate).
The State aid Procedural Regulation entitles the Commission to request any information it deems necessary to assess for a state aid investigation, including information to assess whether a Member State's tax practice favours certain companies. According to the Commission's Communication on professional secrecy, Member States cannot invoke professional secrecy for refusing to provide information requested by the Commission.