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… OPINION OF ADVOCATE GENERAL PITRUZZELLA delivered on 9 November 2023 (1) Case C-465/20 P European Commission v Ireland, Apple Sales International, Apple Operations International, formerly Apple Operations Europe, Grand Duchy of Luxembourg, Republic of Poland, EFTA Surveillance Authority (Appeal - - Advance tax decisions (tax rulings) - tax ) I. Introduction 1. …

… There is no doubt that rules cannot be used to achieve surreptitiously tax harmonisation in the way of which there are political obstacles or to tackle harmful tax competition. Exploiting the of disparities between tax systems does not involve the grant of aid and tax competition between States is not prohibited per se. …

… In the judgment under appeal, in so far as it is relevant for the purposes of the present case, the General Court first rejected the pleas put forward by Ireland and by ASI and AOE alleging that the Commission exceeded its competences and was in breach of the principle of of the Member States (paragraphs 103 to 124). Secondly, it examined the pleas alleging errors made by the Commission in connection with its primary line of reasoning. …

… must thus refrain from adopting any tax measure liable to constitute that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its , the characteristics constituting the tax, which define, in principle, the system or the ‘normal’ tax regime, from which …

… The Court will then go on to consider the Kingdom of Belgium’s arguments challenging the Commission’s findings in relation to both the existence of an and the nature of that because of the existence of a derogation from the system and, also, in relation to the lack of based on the nature and general scheme of the Belgian tax system. …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 20 September 2023 (*) ( - scheme put into effect by Belgium - Decision declaring the scheme incompatible with the internal market and unlawful and ordering recovery of the granted - Tax ruling - Taxable profit - Excess profit exemption - - - Adverse effect on competition - Recovery) In Case T-131/16 RENV, Kingdom of Belgium, represented by C. Pochet and M. …

… excess profit system did not form an inherent part of the relevant system for determining whether there was a . …

… must thus refrain from adopting any tax measure liable to constitute that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its , the characteristics constituting the tax, which define, in principle, the system or the ‘normal’ tax regime, from which …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 20 September 2023 (*) ( - scheme put into effect by Belgium - Decision declaring the scheme incompatible with the internal market and unlawful and ordering recovery of the granted - Tax ruling - Taxable profit - Excess profit exemption - - - Recovery) In Cases T-278/16 and T-370/16, Atlas Copco Airpower, established in Antwerp (Belgium), Atlas Copco AB, established in Nacka (Sweden), applicants …

… , including that relating to the existence of a , the concept of ‘’ and the concept of the ‘’ thereof are two separate criteria. …

… must thus refrain from adopting any tax measure liable to constitute that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its , the characteristics constituting the tax, which define, in principle, the system or the ‘normal’ tax regime, from which …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 20 September 2023 (*) ( - scheme put into effect by Belgium - Decision declaring the scheme incompatible with the internal market and unlawful and ordering recovery of the granted - Tax ruling - Taxable profit - Excess profit exemption - - - Recovery) In Cases T-266/16, T-324/16, T-351/16, T-363/16, T-371/16 and T-388/16, Capsugel Belgium, established in Bornem (Belgium), applicant in Case …

… must thus refrain from adopting any tax measure liable to constitute that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its , the characteristics constituting the tax, which define, in principle, the system or the ‘normal’ tax regime, from which …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 20 September 2023 (*) ( - scheme put into effect by Belgium - Decision declaring the scheme incompatible with the internal market and unlawful and ordering recovery of the granted - Tax ruling - Taxable profit - Excess profit exemption - - ) In Case T-637/16, ZF CV Systems Europe, formerly Wabco Europe, established in Watermael-Boitsfort (Belgium), represented by E. Righini, S. …

… The Court will then go on to consider the applicant’s arguments challenging the Commission’s findings in relation to both the existence of an and the nature of that because of the existence of a derogation from the system. 1. Identification of the system 23 The first part of the second plea alleges a manifest error of assessment in the identification of the system. …

… must thus refrain from adopting any tax measure liable to constitute that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its , the characteristics constituting the tax, which define, in principle, the system or the ‘normal’ tax regime, from which …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 20 September 2023 (*) ( - scheme put into effect by Belgium - Decision declaring the scheme incompatible with the internal market and unlawful and ordering recovery of the granted - Tax ruling - Taxable profit - Excess profit exemption - - - Recovery) In Case T-420/16, St. Jude Medical Coordination Center (SJM Coordination Center), established in Zaventem (Belgium), represented by F. …

… Infringement of Article 107 TFEU in that the Commission found that the excess profit exemption constituted a scheme 22 The arguments raised by the applicant in its fifth, sixth and seventh pleas essentially dispute the Commission’s findings as to the existence of an granted by the scheme at issue and its . …

… However, that discretion enjoyed by the Member would exceed its limits if they abused their tax law in order to grant to individual undertakings in circumvention of the rules on . (26) Such an abuse of can be assumed when tax law is configured in an obviously inconsistent manner - as happened in the case of Gibraltar, (27) for example. …

… That will mean that not every error in the application of national tax law is evidence of a . Thus, only the manifest derogation in favour of the taxpayer of a tax ruling (or tax assessment) from the encompassing the national tax law can constitute a . …

… OPINION OF ADVOCATE GENERAL KOKOTT delivered on 4 May 2023 (1) Case C-454/21 P Engie Global LNG Holding Sàrl, Engie Invest International SA, Engie SA v European Commission Case C-451/21 P Grand Duchy of Luxembourg v European Commission (Appeal - Rules on - Measures implemented by the Grand Duchy of Luxembourg in favour of Engie - - Determination of the system - Standard of review for in tax law - Tax ruling - Error in the application of …

… Taking into account these elements, and the initiatives taken at national level by the Member , at European level by various committees (the TAX Committee and the JURI Committee), and the investigations opened by the Commission into the tax granted by Luxembourg to certain multinational companies (which has been qualified as granting unjustified to the beneficiary companies, it is an accepted fact that the disclosures have opened the door to public debate in Europe …

… to in Article 325 TFEU and as further specified in relevant Union measures; (c) breaches relating to the internal market, as to in Article 26(2) TFEU, including breaches of Union competition and rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax that defeats the object or purpose of the applicable corporate tax law. 2. …

… [thus] illustrating the practices of ‘ forum‑shopping’, in which Luxembourg is only one stage. …

… JUDGMENT OF THE COURT (Grand Chamber) 8 November 2022 (*) (Appeal - - implemented by the Grand Duchy of Luxembourg - Decision declaring the incompatible with the internal market and unlawful and ordering its recovery - Tax ruling - - - Arm’s length principle - - National law applicable - ‘Normal’ taxation) In Joined Cases C-885/19 P and C-898/19 P, TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, …

… 318 to 336 of the decision at issue). 22 In the third step of its analysis, the Commission found that neither the Grand Duchy of Luxembourg nor FFT had advanced any possible for the preferential of FFT resulting from the tax ruling at issue and that, in any event, it had not been possible to identify any that could be said to derive directly from the basic principles of the or resulting from inherent mechanisms necessary for the functioning …

… Assessment of the tax ruling at issue 14 In Section 7 (recitals 185 to 347) of the decision at issue, the Commission set out the reasons why, in its view, the tax ruling at issue fulfilled all the conditions set out in Article 107(1) TFEU for being classified as within the meaning of that provision. 15 Regarding, more specifically, the condition relating to the existence of a , the Commission considered the tax ruling at issue to confer such an on FFT, in so …

… Furthermore, in the case of tax measures, the very existence of an can only be established either by to so-called ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C-88/03, EU:C:2006:511, paragraph 56) or by to the tax rules laid down by the Member by virtue of its . 62 Consequently, the of Member does not mean that all tax measures, which affect in particular the tax base taken into account by the tax …

… Those shares should, in its view, have been included in MJN GibCo’s taxable base and taxed under Gibraltar’s tax rules. 23 As regards , the Commission first considered that the relevant for the assessment was the ITA 2010 and , in that regard, to the considerations set out in section 7.1.3.1 of the contested decision, concerning the assessment of the of schemes consisting in the non-taxation of passive interest and royalty …

… JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition) 6 April 2022 (*) - scheme implemented by the Government of Gibraltar concerning corporation tax - Tax exemption for interest income and royalties - Advance tax rulings benefiting multinationals - Commission decision declaring the incompatible with the internal market - Obligation to reasons - Manifest error of assessment - - Right to submit comments In Case T-508/19, Mead Johnson Nutrition …