@misc{9226733,
  abstract     = {{During the last decade, the European Commission has launched state aid investigations into tax arrangements between several EU member states and
large multinational corporations. In many of these investigations, the Commission argued that state aid was present because the national tax agencies
endorsed transfer pricing practices that were not compliant with the arm’s
length principle. While this argument was generally accepted upon appeal to
the General Court, the ECJ did not agree. In fact, the ECJ ruled in its landmark
ruling in Fiat that the Commission may not rely on the arm’s length principle
unless expressly adopted into national law. Despite this, Apple was decided
in favour of the Commission even though the arm’s length principle was not
adopted into Irish law at the time of the contested tax rulings. Although Apple
marked a significant win for the Commission, the outcome was largely due
to procedural circumstances. Due to a lack of cross appeal from the Apple
subsidiaries and Ireland, the ECJ accepted the Commission’s definition of the
reference framework and subsequent selectivity analysis. Hence, Apple did
not change the precedents developed through previous jurisprudence. Due to
the remaining fiscal autonomy within taxation, non-compliance with the
arm’s length principle cannot give rise to state aid unless the principle is incorporated in national law.
At the time of writing, several state aid investigations into tax arrangements
remain open. This thesis focuses on the open state aid investigation into advanced pricing agreements concluded between Nike and the Dutch tax
agency. Against the backdrop of previous case law, it seems that the finding
of an advantage will be the most contentious point of law in Nike. This is
primarily because the ALP is adopted into Dutch law, which likely makes the
determination of the reference framework less controversial. Although the
Commission could be successful in Nike, it is unlikely that it will continue to
launch large state aid investigations into similar tax arrangements in the future. The previous case law has shown that the chance of success is highly
dependent on the adoption of the arm’s length principle in national law and
the subsequent interpretation of said law. Ultimately, the fiscal autonomy of
the EU member states hinders full state aid control in the area of taxation.
Hence, there may be other international instruments and initiatives, such as
the BEPS project, that are better suited to dealing with tax evasion of large
multinational corporate groups.}},
  author       = {{Karlsson, Sara}},
  language     = {{eng}},
  note         = {{Student Paper}},
  title        = {{Just Tax It? - The Reference Framework in EU State Aid Tax Rulings and the Fate of Nike}},
  year         = {{2026}},
}