On December 16, 2021 the Advocate General to the CJEU is expected to deliver 2 opinions on appeals that were filed against the judgment of the General Court of September 24, 2019 in the joined Cases T-755/15 and T-759/15 (Luxembourg and Fiat Chrysler Finance Europe versus the European Commission).
Case C-885/19 P - Fiat Chrysler Finance Europe v Commission
The first appeal is filed by Fiat Chrysler Finance Europe (with European Commission and Ireland as other parties to the proceedings).
Form of order sought
The appellant claims that the Court should:
1. set aside the judgment of the General Court (Seventh Chamber, Extended Composition) of 24 September 2019 in joined Cases T-755/15 and T-759/15;
2.
a. annul the contested decision of the Commission of 21 October 2015 in accordance with Article 263(4) TFEU;
b. or in the alternative, if and to the extent that the Court should be unable to make a final decision, refer the case back to the General Court; and
3. order the Commission to pay Fiat Chrysler Finance Europe’s costs pursuant to Articles 138(1), 184(1) and (2) of the Rules of Procedure of the Court of Justice and to pay Fiat Chrysler Finance Europe’s costs at first instance.
Pleas in law and main arguments
1. First plea in law: the General Court’s analysis of whether Fiat Chrysler Finance Europe derived an advantage from the advance pricing agreement (“APA”) breaches Article 107 TFEU by virtue of (i) the General Court’s misapplication of the legal test of whether the APA endorsed a methodology that exceeded the applicable margin of appreciation, and (ii) the General Court’s failure to properly define the relevant undertaking that was the beneficiary of the APA.
2. Second plea in law: the GCEU’s analysis of the legal basis for the Commission’s arm’s length principle (“ALP”) is inadequate and contradictory and breaches the general principle to give adequate and coherent reasons.
3. Third plea in law: the GCEU breached the fundamental principle of legal certainty by (i) endorsing the Commission’s ill-defined ALP without addressing its scope or contents, and by (ii) upholding the application of the selectivity presumption to the APA.
Case C-898/19 P - Ireland v Commission and Others
The appeal is filed by Ireland (with the European Commission, Fiat Chrysler Finance Europe and the Grand Duchy of Luxembourg as other parties to the proceedings).
Form of order sought
The appellant claims that the Court should:
1. set aside the judgment of the General Court of 24 September 2019 in Joined Cases, T-755/15 and T-759/15, Luxembourg and Fiat Chrysler Finance Europe v Commission;
2. annul the Commission’s decision of 21 October 2015, and
3. order the Commission to pay the cost of these proceedings.
Pleas in law and main arguments
1. First ground: the General Court erred in law and misapplied Article 107(1) TFEU in its approach to the so-called “arm’s-length principle”.
2. Second ground: the General Court erred in law and misapplied Article 107(1) TFEU in its analysis of selectivity.
3. Third ground: the General Court breached its duty to give reasons for its judgment.
4. Fourth ground: the General Court breached the principle of legal certainty by agreeing that the Commission could review decisions of national tax administrations by reference to a Commission version of the arm’s-length principle which was unpredictable and whose content is unknown.
5. Fifth ground: the General Court breached Articles 4 and 5 TEU and impermissibly used the State aid rules to harmonise Member States’ direct taxation rules.
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