On January 10, the European Commission (EC) announced in a press release that it has opened a formal State aid investigation into the Netherlands’ tax treatment of two Dutch Nike affiliates. The text of the opening decision is not yet available. According to the press release, the EC’s formal investigation focuses on five tax rulings that were granted to Nike’s affiliates from 2006 to 2015. Two of these rulings are still in force.
The EC’s press release reiterates that tax rulings, which confirm the tax treatment of intra-group transactions applying the relevant national legislation, are not problematic from a State aid perspective unless they confer a selective advantage to certain companies. In the press re-lease, the EC underlines the efforts made by the Netherlands to reform its corporate tax system. The EC notes in this respect the tightened requirements for tax rulings with respect to international structures, the increased monitoring and management of rulings, and the plans to introduce a withholding tax on interest and royalty payments made to companies in tax havens.
This press release is the latest in a number of related high-profile cases concerning the EC’s approach to State aid, in particular in relation to transfer pricing practices documented in tax rulings.
Note that the opening of an in-depth investigation does not pre-judge its outcome. In order to assess the EC’s arguments and their potential implications, it remains to be seen what the detailed EC decision will contain. Finally, most EC decisions regarding fiscal State aid currently are under appeal before the General Court of the European Union.