A 'private tax-payer test' for State aid? ... or how the Commission is not getting it (about the Apple APA case)

Thanks to @Detig's twitter encouragement, I have finally set out to read the recently released 11 June 2014 Decision of the European Commission SA.38373 in the case of alleged Irish aid to Apple due to the treatment of its advanced pricing arrangements (APAs). Generally, this is a case that pushes the boundaries of State aid law as tax sovereignty is concerned and may force some interesting developments. However, in the particulars, its seems that some of the foundations of the Commission's position are rather shaky.
In my view, one of the points where the Commission's logic is particularly flimsy comes when it tries to justify the application of the private operator/investor test in this context, in what should be rebranded as 'private tax-payer' test, by stressing that 'to avoid this type of advantage [ie the allocation of profit to subsidiaries in low tax jurisdictions] it is necessary to ensure that taxable income is determined in line with the taxable income a private operator would declare in a similar situation' (para 9, emphasis added). This just does not make sense and incorrectly focusses on the incentives of the economic operator (tax payer) instead of those of the tax authority (which, in the end, is the one that may have accepted APAs that granted an undue economic advantage to the former).
 As the Commission had itself very clearly indicated (para 8 of the same document), the financial incentives that (multinational) private operators have are exactly in line with Apple's behaviour. Hence, the Commission should have stuck to the simple truth that, from an economic perspective, the only rational behaviour that can be expected from economic (corporate) operators is to try to minimise fiscal pressure and to incentivise their tax directors to do so [Armstrong, Blouin & Larcker, 'The incentives for tax planning' (2012) 53(1) Journal of Accounting and Economics 391-411].
This may not be the socially desirable behaviour, and precisely that is why tax law is there [as, indeed, 'if we were ideally virtuous, there would be no need to study what people should pay in taxes to finance subsidies to the poor, the employment of a police force, and provision of an urban infrastructure, or to find ways of reducing the environmental damage we do'; J Mirrlees, Welfare, Incentives, and Taxation (Oxford, OUP, 2006) iv]. 
If the Commission is of the view that the activity of the (Irish) tax authorities was not in line with rational behaviour, it should not try to find a justification in the behaviour that could be expected from the tax payer, but rather on the rationality of the decision of the tax authorities on the basis of the existing knowledge on optimal taxation--an issue discussed by Mirrlees (131-73) and many others, without having necessarily reached a final conclusion so far [see an interesting discussion of the main insights achieved so far in NG Mankiw, M Weinzierl and D Yagan, 'Optimal Taxation in Theory and Practice', (2009) 23(4) Journal of Economic Perspectives 147-74].
Trying to conflate this insight and to word the criterion for the assessment of Apple's APAs as a 'private tax-payer' test does not make sense and risks damaging the consistency and logic behind the principle of private operator/investor test as a general principle for the assessment of State aid [for discussion, see A Sanchez Graells, 'Bringing the ‘Market Economy Agent’ Principle to Full Power' (2012) 33 European Competition Law Review 35-39].
In my view, this is plain to see in the oddity of the detailed reasoning in which the Commission engages, when it establishes that
When accepting a calculation method of the taxable basis proposed by the taxpayer, the tax authorities should compare that method to the prudent behaviour of a hypothetical market operator, which would require a market conform remuneration of a subsidiary or a branch, which reflect normal conditions of competition. For example, a market operator would not accept that its revenues are based on a method which achieves the lowest possible outcome if the facts and circumstances of the case could justify the use of other, more appropriate methods (SA.38373, para 56, emphasis added).
Quite honestly, it is very difficult to understand what the Commission exactly means by this--and this is the more worrying because '[i]t is in the light of these general observations that the Commission will examine whether the contested rulings comply with the arm’s length principle' (para 57). If what the Commission indicates is that for the purposes of taxation, a rational/prudent economic operator would not accept a method that results in the lowest possible tax base, this just does not make sense. Differently, if what the Commission means is that for purposes other than taxation (which would those be?) the rational/prudent economic operator would equally oppose that method, then much more detailed explanation of why and how that is the case would be needed.
Worse of all, the Commission has a strong cases on the facts. The Irish tax authorities entered into negotiations with Apple and allowed the company to deviate very significantly from the applicable (general) tax rules. Moreover, despite the very significant development of international standards on transfer pricing, a 1991 ruling was used until 2007 with no revision. This sweet deal for Apple was clearly linked to an objective of keeping (regional) employment and ensruring some tax income. These may be rational (?/justifiable?) political decisions, but they do not meet any acceptable standard of objectivity, professionalism and transparency and, consequently run against the basic requirements of good (tax) administration. And, what is more important, clearly point towards a selectivity in the application of the tax system that makes the whole deal fall foul of the prohibition in Art 107(1) TFEU [the important legal point is, indeed, made at para 70 of the Decision].
In view of all this, one cannot but wonder why would the Commission base its case on such unfocussed and difficult to share (to put it mildly) points of departure. One possible option, of course, is the rebalancing of powers in tax matters derived from the Treaty of Lisbon and the very limited space for action in the front of direct taxation that is not supported unanimously by the 28 Member States (see art 115 TFEU) [for discussion, see TA Kaye, 'Direct taxation in the European Union: from Maastricht to Lisbon' (2012) 35(5) Fordham International Law Journal].
Another possible option is that the Commission is trying to deflect the bad publicity from the Member State concerned (Ireland) towards the multinational (Apple), hoping to find less resistance (or to trigger support) at Member State level. There can be a myriad other reasons, of course. But none of them seems to justify risking a case (and a principle of enforcement of State aid law) in an attempt to get the prohibition decision through.

... and Cut! Lights Out for the €274mn Spanish "Ciudad de la Luz" Film Studios (T-319/12)

In its Judgment of 3 July 2014 in Spain v Commission (Ciudad de la Luz), joined cases T-319/12 and T-321/12, EU:T:2014:604 (not available in English), the General Court (GC) reviewed Commission's Decision (2012) 3025 final and assessed the compatibility of a Spanish support scheme for the development of the Ciudad de la Luz film studios (a project initially promoted by the late Luis Garcia Berlanga) with the rules on State aid in Articles 107-109 TFEU.
The GC found the aid to be incompatible with the internal market and confirmed the obligation of the Valencia Regional Government to divest its €274mn stake in the film studios, where it originally invested in 2000. The Judgment raises some interesting points on the application of the market investor test to the development of this sort of culture-related facilities.
Firstly, at paras 38 to 45, the GC rejects any obligation of the European Commission to take into consideration average returns in a given sector, particularly where they are affected by a lack of data or there are concerns about their reliability. The GC clarifies, following the Judgment in Westdeutsche Landesbank Girozentrale v Commission [joined cases T-228/99 and T-233/99, EU:T:2003:57] that the average return is one amongst many factors that the Commission may take into account when assessing the likelihood that a private investor would undertake a given publicly-sponsored project. 
Nonetheless, the Commission is not bound to use it and, in any case, its assessments could not be limited to such an average return analysis. Indeed, the "utilization of the average rate of return in the sector concerned does not relieve the Commission of the obligation to make a complete analysis of all relevant elements of the transaction and its context, including the situation of the company and the market, in trying to check whether the recipient undertaking has benefitted from an economic advantage which it would not have obtained under normal market conditions" (para 45, own translation from Spanish).
Secondly, at paras 48 to 50, the GC grants very low probative value to the existence of independent consulting studies and viability plans commissioned by the public authority prior to its investment. The GC acknowledges that the existence of independent reports may serve as an indication of the public investment having been made in comparable terms to those of a private transaction.

However, the GC also clarifies that the "jurisprudence does not in any way support that the existence of such reports is in itself sufficient to consider that the beneficiary of that measure has not benefited from an economic advantage within the meaning of Article 107, paragraph 1 (...) the Member State concerned can not rely on the findings of reports of independent consultancy firms without offering itself an adequate response to the issues that a prudent investor would have considered in the context of the case" (para 50, own translation from Spanish, emphasis added).
Thirdly, the GC clearly upholds the method followed by the European Commission to estimate the cost of capital and the expected internal rate of return. Strikingly, although maybe not suprising for a country and a region that undertook too many loss-making infrastructure projects in the last decade (shamefully, for instance, the Castellon Airport), the Commission rightly found that "the net present value was negative for any cost of capital of between 5% and 6%. For all costs of capital higher than 10%, the net present value was sharply negative and relatively stable. In view of the results [and the information available to the public authority], according to which the cost of capital was of 16.66% in 2000 and 14.9% in 2004, it could have effectively concluded with a high degree of certainty that the project was not profitable" (para 61, own translation from Spanish).
Fourthly and  in a rather colourful way, in paras 87 to 95, the GC engages in an assessment of the economic data included in the works of a Spanish university professor [not named by the GC, but the works are those of P Fernandez, and mainly its paper: The Equity Premium in 150 Textbooks (Date posted: September 14, 2009; Last revised: November 26, 2013)]. In my view, the detailed discussion that the GC entertains about the use of those equity premium estimates is an example of the degree of financial sofistication that the Court can reach--but, equally, of the possible excess in the detail of the review, if compared with the literal tenor of Art 263(2) TFEU.
Fifthly, the GC also engages in a largely useless exercise concerned with the incorporation or not of additional sources of revenue in the Commission's assessments. In its Decision, the Commission had only taken into account the revenue from film making activities. Spanish authorities wanted to add the expected revenue from hotel and commercial exploitation of the premises. The GC, in paras 125 to 139, sorts out the issue in a Solomonic way. First, it finds that the Commission should have incorporated the additional revenue in its assessment. However, it then rejects the arguments of the appellants on the basis that, even with those additional revenues, the project would not have been viable.
In my view, the important factual point to stress is that the public call for developers launched by the Spanish region in 2005 was deserted and the developments never took place (para 135). If listening to the market is of any value, it seems that the Commission made the right call by not including the expected additional revenue.

Anyway, the case law is now more open to the inclusion of alternative sources of revenue in the public investment in complex infrastructure projects as a result of the Ciudad de la Luz Judgment.
Finally, in paras 152 to 159, the GC assesses the requirements applicable to private investments and their continuity in order to make the infrastructure project that receives public finance susceptible of a declaration of compatibility under the applicable block exemption regulations. In short, the GC takes a pragmatic approach and clearly determines that an initial investment of 25% of the equity that, due to subsequent increases in capital in which the private investor does not participate, is reduced to around 1.6% in under a year falls short from the requirement of substantial private investment in the project (paras 155-156). In my view, this is a strong point in the Judgment and definitely one oriented to prevent circumvention strategies such as the one clearly seen in the Ciudad de la Luz case.
All in all, the case is interesting (or depressing...) if one reads it from the perspective of the massive legal and financial arguments that can be created to cover a simple and worrying truth: that certain infrastructure projects are anti-economical and a brutal waste of public resources, probably only driven by politicans' interests. In that regard, the insights of the study by Flyvbjerg, Garbuio and Lovallo "Delusion and Deception in Large Infrastructure Projects: Two Models for Explaining and Preventing Executive Disaster" (2009) California Management Review 51(2): 170-193 will be worth re-reading (over and over). Now, in the short-term, the difficulty will be in trying to find a private buyer for such inviable film studios...

CJEU further pushes for a universal application of the 'market economy private investor test' (C-224/12)

In its Judgment of 3 April 2014 in case C-224/12 Commission v Netherlands and ING Groep, the Court of Justice of the European Union (CJEU) has followed its antiformalistic approach to the application of the 'market economy private investor test' (see comment to its precedent in C-124/10 EDF here) and has basically consolidated its role as a universal test in the application of Article 107(1) TFEU [for discussion, see A Sanchez Graells, “Bringing the ‘Market Economy Agent’ Principle to Full Power” (2012) 33 European Competition Law Review 35-39].

In its ING Groep Judgment, the CJEU determined that the Commission could not evade its obligation to assess the economic rationality of an amendment to the repayment terms of the aid granted by the Dutch State to ING in the light of the private investor test solely on the ground that the capital injection subject to repayment itself already constituted State aid--since only after such an assessment would the Commission be in a position to conclude whether an additional advantage within the meaning of Article 107(1) TFEU had been granted.
In my view, this general approach insisting on the application of the 'market economy private investor test' regardless of the prior existence of State aid in itself must be praised, and the very rotund terms in which the CJEU has stressed its importance deserve some emphasis.
Indeed, the CJEU has built up on the arguments already indicated in C-124/10 EDF and, following the advice of AG Sharpston, has made it clear that:
30 [...] in view of the objectives pursued by Article [107(1) TFEU] and the private investor test, an economic advantage must, even where it has been granted through fiscal means, be assessed in the light of the private investor test if, on conclusion of an overall assessment, it appears that, notwithstanding the fact that the means used were instruments of State power, the Member State concerned has conferred that advantage in its capacity as shareholder of the undertaking belonging to it.
31 It follows that the applicability of the private investor test to a public intervention depends, not on the way in which the advantage was conferred, but on the classification of the intervention as a decision adopted by a shareholder of the undertaking in question.
32 Furthermore, that test is one of the factors which the Commission is required to take into account for the purposes of establishing the existence of aid and is therefore not an exception that applies only if a Member State so requests, where the constituent elements of State aid incompatible with the common market referred to in Article [107(1) TFEU] have been found to be present (see Commission v EDF, paragraph 103).
33 Consequently, where it appears that the private investor test may be applicable, the Commission is under a duty to ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions governing the applicability and the application of that test are met (see Commission v EDF, paragraph 104).
34 The application of that case-law cannot be compromised merely because, in this case, what is at issue is the applicability of the private investor test to an amendment to the conditions for the redemption of securities acquired in return for State aid.
35 Indeed, as the Advocate General has stated [...] any holder of securities, in whatever amount and of whatever nature, may wish or agree to renegotiate the conditions of their redemption. It is, consequently, meaningful to compare the behaviour of the State in that regard with that of a hypothetical private investor in a comparable position (C-224/12 at paras 30-35, emphasis added).
In my view, this Judgment must be welcome as a good addition and (further) clarification to C-124/10 EDF in terms of the universal applicability of the  'market economy private investor test' and, as I already indicated, it would be interesting to see this criterion extended to other areas of EU Economic Law and, particularly, public procurement, where the control the (disguised) granting of State aid is crying for further developments of the 'market economy private [buyer] test' [as I stressed in "Public Procurement and State Aid: Reopening the Debate?"(2012) 21(6) Public Procurement Law Review 205-212].

Good news: ECJ pushes for an antiformalistic extension of the 'market economy private investor test'

In its recent Judgment of 5 June 2012 in case C-124/10 P Commission and EFTA Surveillance Authority vs Electricite de France (EDF) and others, the European Court of Justice (in Grand Chamber) has endorsed the General Court in a significant push for an extended and antiformalistic use of the 'market economy private investor principle' in State aid control procedures.

The case clearly supports the use of the 'market economy investor' test as the general standard for the material appraisal of State aid measures, regardless of the instruments used by public authorities to grant support to undertakings (be it by exercising 'pure' public powers, such as taxation, or otherwise) and contributes to the development of more homogeneous substantive standards in this area of EU Competition Law.

The case arose from the failure of the European Commission to appraise a tax-related measure granted by France to EDF under the 'market economy private investor test'. The Commission had refused to do so on the formal grounds that
(96) [...] the private investor principle can be applied only in the context of the pursuit of an economic activity, not in the context of the exercise of regulatory powers. A public authority cannot use as an argument any economic benefits it could derive as the owner of an enterprise in order to justify aid granted in a discretionary manner by virtue of the prerogatives it enjoys as the tax authority in relation to the same enterprise.
(97) While a Member State may act as a shareholder in addition to exercising its powers as a public authority, it must not combine its role as a State wielding public power with that of a shareholder. Allowing Member States to use their prerogatives as public authorities for the benefit of their investments in enterprises operating in markets that are open to competition would render the Community rules on State aid completely ineffective." (Decision 2005/145/EC of 16 December 2003 on the State aid granted by France to EDF).
Basically, the Commission opposed the possibility to conduct a global appraisal of the conversion into capital of a tax claim by the State under the 'market economy private investor test' on the basis that a private investor could never hold a tax claim against an undertaking, but only a civil or commercial claim. Therefore, the Commission contended that tax measures that directly imply a capital injection (because the taxes not levied are added to the net assets of the beneficiary company) cannot be analysed as a whole and, if appropriate, be allowed as a single transaction. But that, rather, Member States should exact taxes from undertakings in regular form, and then inject the same amount of capital as State aid (in a double circulation of capital, rather than a set-off or compensation), if they wanted to benefit from an appraisal of such capital injections under the 'market economy private investor test'.

This argument seemed extremely formalistic and, even if there could be transparency and oversight issues involved (as the Commission indicated in the appeal, but which can be remedied by less intrusive and formalistic means), the General Court dismissed the Commission's argument by clarifying that
"[...]  the purpose of the private investor test is to establish whether, despite the fact that the State has at its disposal means which are not available to the private investor, the private investor would, in the same circumstances, have taken a comparable investment decision. It follows that neither the nature of the claim, nor the fact that a private investor cannot hold a tax claim, is of any relevance." (ECJ C-124/10 P, at para. 37, emphasis added).
The ECJ dismissed the opinion of AG Mazák [who supported the Commission on the basis that it was right "to take a principled line in the contested decision, insofar as there should be a visible separation of the role of the State qua public authority from the role of the State qua shareholder"; Opinion, at para. 96], and finally endorsed the GC finding that:
"(92) [...] in view of the objectives underlying [Article 107(1) TFEU] and the private investor test, an economic advantage must – even where it has been granted through fiscal means – be assessed inter alia in the light of the private investor test, if, on conclusion of the global assessment that may be required, it appears that, notwithstanding the fact that the means used were instruments of State power, the Member State concerned conferred that advantage in its capacity as shareholder of the undertaking belonging to it.
(93) It follows that [...] the obligation [...] to verify whether capital was provided by the State in circumstances which correspond to normal market conditions exists regardless of the way in which that capital was provided by the State [...]" (ECJ C-124/10 P, emphasis added).
Moreover, and as a matter of general principle, the ECJ ruled that:
"[...] contrary to the assertions made by the Commission and the EFTA Surveillance Authority, the private investor test is not an exception which applies only if a Member State so requests, in situations characterised by all the constituent elements of State aid incompatible with the common market, as laid down in [Article 107(1) TFEU] . [...] where it is applicable, that test is among the factors which the Commission is required to take into account for the purposes of establishing the existence of such aid."  (ECJ C-124/10 P, at para. 103, emphasis added)
Even if, in this case, the Judgment is in favour of the State granting aid (in less than a fully transparent manner), it is indeed a very interesting development of EU State aid law, since it can contribute to subject to more economic criteria the granting of aid through measures falling within the core sphere of 'public powers'--which, otherwise would have remained substantially shielded from economic considerations.

In my view, this Judgment is to be welcome, and it would be interesting to see this criterion extended to other areas of EU Economic Law and, particularly, public procurement, where the control the (disguised) granting of State aid is crying for further developments of the 'market economy private [buyer] test' (as I have recently stressed in 'Public Procurement and State Aid: Reopening the Debate?', available at http://ssrn.com/abstract=2037768).