Opinion of the Advocate General — ECLI:EU:C:2026:259
Date: 2026-03-26
Language of the case: Dutch

summary reasoning for that of the Commission by establishing an initial adjustment made abroad as a prerequisite for the application of Article 185(2)(b) of CIR 92 can also be left aside. Admittedly, it is settled case-law of the Court of Justice that the General Court is not entitled to substitute its own reasoning for that set out in the decision at issue by its author or to fill a gap in the statement of reasons for that act with reasoning of its own. (54) Irrespective of the fact that the appellants’ arguments are based on a misunderstanding of the General Court’s considerations (see point 65 above), the tax practice at issue, regardless of that reasoning, is manifestly not compatible with the wording of Article 185(2)(b) of CIR 92 (see point 53 et seq. above). 67. Third and lastly, there is no need to examine the merits of the appellants’ argument that the General Court distorted the facts by misinterpreting or disregarding the intention of the Belgian legislature, existing administrative practice (including the confirmatory opinions of the Belgian Minister for Finance) and national case-law. In the appellants’ view, it follows from a judgment of the Rechtbank van eerste aanleg Brussel (Brussels Court of First Instance, Belgium) of 21 June 2019 and from a statement made by the Minister for Finance on 30 November 2023 that, contrary to the account given by the General Court, a corresponding initial adjustment in another tax jurisdiction is not required for the application of Article 185(2)(b) of CIR 92. 68. Regardless of the question whether that judgment was introduced in a procedurally admissible manner into the present appeal proceedings, (55) the appellants’ objection is not convincing. The fact is that, even if, contrary to the supposed view of the General Court (see point 65 above), the legislation does not presuppose an initial adjustment in a foreign State, the first ground of appeal is unfounded, since the tax practice at issue is, for another reason, already manifestly at odds with the wording of Article 185(2)(b) of CIR 92 (see point 53 et seq. above). 5. The third complaint within the first ground of appeal: Article 185(2)(b) of CIR 92 permits adjustment by reference to a ‘hypothetical profit’ 69. For the same reason, the third part of the first ground of appeal can also be left aside. In that complaint, the appellants claim that the Commission and the General Court erred in law in finding that Article 185(2)(b) of CIR 92 did not permit adjustment by reference to a ‘hypothetical profit’. Even if that were true, the tax practice at issue would, for the reasons set out above (point 53 et seq. above), be manifestly unlawful. On that point too, it is worth noting that the appellants have misunderstood the General Court’s considerations. 70. That is to say that the appellants argue that the aim of transfer pricing (presumably on the basis of the arm’s length principle) is to establish a hypothetical profit, namely an arm’s length profit. That is true in so far as an actual business relationship exists between group companies and prices are adjusted on an arm’s length basis within that relationship. The General Court, however, did not find otherwise, nor did the tax practice at issue satisfy those requirements (see point 53 et seq. above). 6. Conclusion on the examination of the first ground of appeal 71. The General Court therefore correctly found that the Commission was right not to regard the tax practice at issue as part of the reference framework for Belgian corporate income tax, as its interpretation was manifestly contra legem. The appellants’ first ground of appeal is therefore unfounded. B. The second ground of appeal: classification as a selective measure 72. By the second ground of appeal, the appellants challenge the General Court’s finding that the tax practice at issue constitutes a selective measure. In the appellants’ view, the tax practice at issue does not give rise to unequal treatment of comparable companies. 73. That objection concerns the question to be examined at the second stage, namely whether the tax measure at issue is a derogation from the ordinary system, in so far as it differentiates between economic operators which, in the light of the objective pursued by the ordinary system, are in a comparable factual and legal situation (see point 32 above). 74. It is necessary to examine whether the General Court erred in law by assuming the presence of unequal treatment in that sense. 1. Findings of the General Court 75. The findings of the General Court indicate that the Commission was correct in stating, in recitals 138 to 140 of the decision at issue, that unequal treatment of comparable companies arising from the tax practice at issue could be assumed for three different reasons. (56) 76. First, the General Court found that the exemption of excess profits leads to a selective disadvantage for companies that are not part of a multinational group. (57) 77. The aim of the Belgian corporate income tax system, the General Court observed, is to tax all profits of taxable companies, regardless of whether they are independent or belong to a multinational group. (58) By contrast, the tax practice at issue granted the beneficiaries a tax reduction by allowing them to deduct part of their profits from their tax base without those tax-exempt profits being included in the profits of another company in the group. (59) Consequently, the General Court held, companies belonging to a multinational group were treated differently from other companies, whose entire profits were taxed under the normal rules governing Belgian corporate income tax. (60) 78. Moving on to the next stage, (61) the General Court found that the excess profit exemption favoured companies which had chosen to make investments, create jobs or centralise activities in Belgium. According to the sample analysed by the Commission, the issuing of a tax ruling was, in practice, contingent on the pursuit of such economic activities in Belgium. 79. As a third possible reason for selectivity of the regime, the General Court named the differing treatment of companies forming part of a small group. (62) It was apparent from the sample, said the General Court, that only companies belonging to a large or medium-sized multinational group were actually able to benefit from the tax exemption of excess profits. In that regard, it was apparent from the sample that only such companies had an incentive to obtain a tax ruling, since it was only within large groups that such high profits could be derived from synergetic effects, economies of scale and other advantages that a request to apply the tax practice at issue would have been worthwhile. Selectivity, the General Court found, could also be inferred from that observation. 2. Assessment 80. The appellants challenge the three reasons given by the Commission and upheld by the General Court to demonstrate the selectivity of the measure. That objection is well founded only if all of the reasons cited by the Commission prove to be incorrect. Conversely, if any one of the reasons proves to be valid, the ground of appeal must be rejected. (a) Discrimination against standalone companies and companies belonging to a purely domestic corporate group 81. The appellants argue that the situation of companies forming part of a multinational group is not comparable to that of companies which do not belong to a corporate group or which belong to a purely domestic group. 82. It must therefore be examined whether, in terms of the objective pursued by the reference framework (uniform taxation of profits based on actual ability to pay), the factual and legal situation of companies belonging to multinational groups is comparable to that of standalone companies and of companies belonging to domestic groups. 83. It is true that the appellants rightly object that, unlike multinational groups, companies with purely domestic operations are not exposed to the risk of double taxation which may result from the adjustment of transfer prices. 84. However, the tax practice at issue does not actually address that risk of double taxation, since it does not require the existence of a cross-border transaction. Rather, the tax practice at issue is configured in such a way that it offers beneficiaries the option of switching from taxation of profits actually realised (which reflects the actual ability to pay) to taxation based on the hypothetical average profit of a standalone company. That ultimately means that taxpayers belonging to a multinational group can choose whether to pay corporate income tax on a certain part of their actual profits. That choice is not available to a standalone company. 85. Given the aim of taxing corporate profits on the basis of ability to pay, it follows that the risk of double taxation cannot justify the unequal treatment which resulted from the tax practice at issue. In that regard, the factual and legal situation of companies in multinational groups is comparable to that of standalone companies and companies in domestic groups. The bottom line is that the aim of uniform taxation of profits is not achieved if multinational companies are only required to pay tax on part of their profits corresponding to a hypothetical average profit, whereas all other taxpayers are required to pay tax on their actual profits in full. 86. Since the tax reduction is not available to the same extent to all taxpayers but only to Belgian companies in multinational groups, the General Court did not err in law in finding that the tax practice at issue discriminates between companies which, in terms of the aim of the general system, namely uniform taxation of profits based on ability to pay, are in a comparable factual and legal situation. 87. Consequently, for that reason alone, the second ground of appeal is unconvincing. The Commission and the General Court did not err in law when they assumed unequal treatment. (b) Discrimination against companies, inter alia, not making investments in Belgium 88. There is no need to examine, in that context, whether the other distinctions raised by the Commission and considered by the General Court to be free from any error of law (63) also give rise to unequal treatment of economic operators in a comparable factual and legal situation. As has just been shown, there is already unequal treatment between companies belonging to multinational groups of companies on the one hand and standalone companies and companies belonging to a purely domestic corporate group on the other (see point 82 et seq. above). 89. For the sake of completeness alone, therefore, it should be noted that there is no doubt as to the selective advantage cited by the Commission – and confirmed by the General Court – accruing to companies which, in the future, make investments, create jobs and/or centralise commercial activities in Belgium over those which do not make such investments, inter alia. In its sample analysis, the Commission demonstrated that only companies which will, inter alia, make such investments in the future have received a corresponding tax ruling. 90. That alone, it is true, does not necessarily lead to the conclusion that there is unequal treatment in terms of the abovementioned criterion. The fact that all tax rulings in the representative (64) sample contained references to substantial investments and/or the creation of employment and/or the relocation of activities to Belgium need not mean that the tax practice at issue could only ever be applied in such cases. 91. The mere fact that a tax ruling can only be issued if the relevant development is to occur in the future is not sufficient to establish unequal treatment. As the Commission rightly states, (65) the way in which the scheme functions, as described above, is inherent in advance tax rulings. The tax ruling effectively works as a prior authorisation, precisely because it attributes a particular legal consequence ex ante to a new factual situation that has not yet been realised and so creates legal certainty for operators. (66) That in itself does not constitute unequal treatment of economic operators. Indeed, operators intending to alter their taxation approach have an increased interest in the legal certainty created by a tax ruling compared to operators which do not intend to change their approach. Therefore, the situations in which the respective economic operators find themselves are not comparable, and the legal certainty provided by a tax ruling alone is not a selective advantage. 92. However, as the General Court found in paragraph 95 of the judgment under appeal, the Commission demonstrated (67) that a tax ruling was absolutely essential for the ‘excess profit’ in the present case. That finding has not been called into question by the appellants. Consequently, it is evident that the tax exemption is actually available only to companies which will, inter alia, make investments in Belgium in the future and not to those which will not. 3. Conclusion on the examination of the second ground of appeal 93. Since, in any event, the General Court’s findings are not vitiated by any error of law as regards the grounds mentioned in point 81 et seq. above, and the General Court was therefore right to assume unequal treatment, the second ground of appeal is likewise unfounded. C. Third ground of appeal: legality of the recovery order 94. By their third and final ground of appeal, the appellants claim that the General Court disregarded the fact that the recovery order infringed the principles of legal certainty and the protection of legitimate expectations. 1. Findings of the General Court 95. According to the findings of the General Court, the classification of the tax practice at issue as unlawful State aid cannot be regarded as unforeseeable for the appellants. (68) Even if, in the present case, the Commission derogated from its previous practice, that was irrelevant, in the view of the General Court, since such practice could not bind the Commission, which had to base its assessment solely on the applicable provisions of the FEU Treaty and of secondary law. 2. Assessment 96. In essence, the third ground of appeal raises the question of the degree of legitimacy of the appellants’ expectations regarding tax rulings issued on the basis of a – continuing – interpretation of national tax law which is manifestly incompatible with the wording of that national tax law. 97. The Court of Justice has consistently held that recovery of unlawful aid is the logical consequence of the finding that it is unlawful. (69) 98. It is true that the recovery obligation is limited by the principle of protection of legitimate expectations, which is a general principle of EU law within the meaning of Article 16 of Regulation 2015/1589. It is apparent from the settled case-law of the Court of Justice, however, that considerations of legitimate expectations only preclude recovery in exceptional cases. The Court of Justice has ruled, for example, that the right to rely on the principle of the protection of legitimate expectations applies only to someone in a situation in which an EU institution, by giving that person precise assurances, has led him or her to entertain well-founded expectations. (70) 99. In contrast, in the light of the principle of effectiveness, it is claimed that assurances from the Member State do not suffice. (71) The mere fact that a certain tax treatment was promised in an advance tax ruling by national authorities could not, by itself, justify legitimate expectations from the perspective of EU law. 100. Whether such an interpretation of the principle of legitimate expectations is ultimately convincing can remain undecided here. (72) That is because legitimate expectations do not merit protection if the error in the application of the law was readily apparent to the taxpayer. The (obviously unlawful) assurance in the form of an advance tax ruling cannot alter that. Consequently, a taxpayer cannot rely upon legitimate expectations if a provision is obviously interpreted contrary to its wording and that interpretation is assured in an advance tax ruling. As explained above, the tax practice at issue was manifestly contrary to the wording of the Belgian corporate tax law (see point 53 et seq.). 101. Accordingly, the principle of the protection of legitimate expectations does not preclude recovery of the aid in the present case. The General Court did not err in law when reaching that finding. 3. Conclusion on the examination of the third ground of appeal 102. The General Court, therefore, did not err in law in finding that the principle of legal certainty had not been infringed. That means that the third ground of appeal must also be dismissed. D. Conclusion on the examination of the grounds of appeal 103. Since all three grounds of appeal are unfounded, the appeals must be dismissed. VI. Costs 104. Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1), the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 105. Since the appellants have been unsuccessful and the Commission has applied for costs, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission. VII. Conclusion 106. In the light of all of the foregoing, I propose that, in Cases C‑734/23 P and C‑735/23 P, the Court should: (1) Dismiss the appeals; (2) Order the appellants to pay the costs of the appeal proceedings. 1 Original language: German. 2 Judgment of 20 September 2023, Soudal and Others v Commission (T‑201/16, T‑335/16, T‑357/16 and T‑369/16, EU:T:2023:566). 3 That concerns the proceedings in Cases C‑736/23 P, C‑737/23 P to C‑742/23 P, C‑752/23 P, C‑754/23 P, C‑755/23 P and C‑756/23 P, and C‑757/23 P and C‑758/23 P. 4 Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61). 5 Transfer prices are the prices at which an enterprise transfers physical goods and intangible property or provides services to associated enterprises; see OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022, pp. 13 and 14. 6 Moniteur belge of 9 July 2004. 7 Paragraphs 56, 57 and 60 of the judgment under appeal and recital 34 of the decision at issue. 8 Paragraphs 58 and 60 of the judgment under appeal, making reference to recital 38 of the decision at issue. 9 See paragraphs 61 and 62 of the judgment under appeal, making reference to recitals 39 to 42 of the decision at issue as well as the statement of the Minister for Finance of 30 November 2023, produced as Annex A.3. 10 On the following observation, see paragraph 63 of the judgment under appeal. 11 In fact, a percentage was determined which was obtained by comparing an estimated hypothetical average profit of a standalone company with an estimated actual profit of the taxpayer. That percentage was deducted from the taxpayer’s actual profits in the following five years. 12 On the following observation, see paragraph 13 of the judgment under appeal. 13 Judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91). 14 Judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741). 15 Judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741, paragraphs 156 to 158, 169 and 170). 16 Judgments of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 36); of 5 December 2023; Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 105); and of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraph 27). 17 On the following observations, see judgments of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 44); of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 107); and of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraphs 31 and 32). 18 Paragraph 52 et seq. of the judgment under appeal, in particular paragraph 66. 19 Paragraph 52 of the judgment under appeal. 20 Paragraph 65 of the judgment under appeal. 21 Paragraph 59 of the judgment under appeal. 22 Paragraph 63 of the judgment under appeal. 23 See my Opinions in Commission v Luxembourg and Others (C‑457/21 P, EU:C:2023:466, point 91 et seq.); in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:383, point 86 et seq.); and in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567, point 147 et seq.). 24 See my Opinion in Prezydent Miasta Mielca (C‑453/23, EU:C:2024:898, point 27). 25 Judgments of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 119), and of 8 May 2019, Związek Gmin Zagłębia Miedziowego (C‑566/17, EU:C:2019:390, paragraph 39); see my Opinion in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:383, point 99). 26 See judgments of 14 December 2023, Commission v Amazon.com and Others (C‑457/21 P, EU:C:2023:985, paragraph 56); of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 115 et seq.); and of 8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 95 et seq.). 27 Judgments of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 48); of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 112); and of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraph 37); see also, to that effect, with regard to fundamental rights, judgments of 3 March 2020, Vodafone Magyarország (C‑75/18, EU:C:2020:139, paragraph 49), and of 3 March 2020, Tesco-Global Áruházak (C‑323/18, EU:C:2020:140, paragraph 69 and the case-law cited). 28 Judgments of 14 December 2023, Commission v Amazon.com and Others (C‑457/21 P, EU:C:2023:985, paragraph 42), and of 8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 95 et seq.). 29 Judgments of 14 December 2023, Commission v Amazon.com and Others (C‑457/21 P, EU:C:2023:985), and of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948). 30 Judgment of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 120). 31 Judgment of 14 December 2023, Commission v Amazon.com and Others (C‑457/21 P, EU:C:2023:985, paragraph 56). 32 Judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 51). 33 Judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 80). 34 See my Opinion in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, point 101). 35 See my Opinions in Commission v Luxembourg and Others (C‑457/21 P, EU:C:2023:466, point 98 et seq.) and in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, points 94 and 95). 36 See my Opinion in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, point 96). 37 See my Opinions in Commission v Luxembourg and Others (C‑457/21 P, EU:C:2023:466, point 94) and in Luxembourg v Commission and in Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, point 92). 38 Judgment of 15 November 2011, Commission and Kingdom of Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 96 to 107). 39 See my Opinion in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, point 91). 40 Judgments of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 53); of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 114); of 16 March 2021, Commission v Hungary (C‑596/19 P, EU:C:2021:202, paragraphs 48 and 49); and of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraphs 42 and 43). 41 See my Opinions in Prezydent Miasta Mielca (C‑453/23, EU:C:2024:898, point 34) and in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567, point 151). 42 On that point, see judgment of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 119). That principle requires that all the essential elements defining the substantive features of a tax must be regulated by the national legislature. 43 Judgment of 5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 120). 44 If, on the basis of such a review, the EU institutions conclude that the national authorities are manifestly applying national tax law contra legem, a tax practice based on that application is not part of the reference framework but derogates from it. Whether it also constitutes a selective advantage must be established by means of the second and third stages of the three-stage test referred to above (point 32). See judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 60), and my Opinion on the same case, Prezydent Miasta Mielca (C‑453/23, EU:C:2024:898, point 28). 45 Transfer prices are the prices at which an enterprise transfers physical goods and intangible property or provides services to associated enterprises; see OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022, pp. 13 and 14. 46 Belgium’s view is set out in recital 14 of the decision at issue. 47 See judgment of 7 May 1991, Oliveira v Commission (C‑304/89, EU:C:1991:191, paragraphs 17 and 18); see also judgment of 11 September 2025, Austria v Commission (Paks II nuclear power station) (C‑59/23 P, EU:C:2025:686, paragraph 99) concerning a lack of reasoning to be examined ex officio. 48 On the following observations, see judgment of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraph 49 and the case-law cited). 49 Judgment of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraph 51). 50 Judgment of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraph 52 and the case-law cited). 51 It is in the nature of a preliminary assessment that it may change or become more precise in the course of the investigation. 52 Recital 84 of the decision of 3 February 2015 concerning measure SA.37667 (2015/C) (ex 2015/NN), tax rulings on excess profits in Belgium – Article 185(2)(b) CIR 92 (OJ 2015, C 188, p. 24 (41)). 53 Paragraphs 64 and 65 of the judgment under appeal. 54 Judgment of 6 October 2021, World Duty Free Group and Spain v Commission (C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 70). 55 There are serious doubts in that regard, since the appellants do not claim to have presented the judgment of the Rechtbank van eerste aanleg Brussel (Brussels Court of First Instance), as evidenced before the General Court. Because of the restriction to points of law, new evidence is inadmissible in the appeal proceedings. See judgment of 25 March 2010, Sviluppo Italia Basilicata v Commission (C‑414/08 P, EU:C:2010:165, paragraph 114). 56 Paragraph 83 et seq. and paragraph 113 et seq. of the judgment under appeal. 57 Paragraph 86 et seq. of the judgment under appeal. 58 Paragraph 89 of the judgment under appeal. 59 Paragraph 91 of the judgment under appeal. 60 Paragraphs 92 and 93 of the judgment under appeal. 61 Paragraph 94 et seq. of the judgment under appeal. 62 Paragraph 103 et seq. of the judgment under appeal. 63 Paragraph 94 et seq. and paragraph 103 et seq. of the judgment under appeal. 64 See judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741, paragraphs 139 to 149, 152 and 153). 65 Footnote 81 to the decision at issue. 66 On the fact that tax rulings do not, in themselves, constitute unlawful State aid, see the observations in my Opinion in Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:383, point 88). 67 Recital 139 of the decision at issue. 68 Paragraphs 140 and 141 of the judgment under appeal. 69 Leading judgment of 21 March 1990, Belgium v Commission (C‑142/87, EU:C:1990:125, paragraph 66). 70 Judgments of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 97), and of 16 December 2010, Kahla Thüringen Porzellan v Commission (C‑537/08, EU:C:2010:769, paragraph 63), each with further references. 71 See judgment of 20 March 1997, Alcan Deutschland (C‑24/95, EU:C:1997:163, paragraph 34 et seq.). 72 That could be doubted in so far as tax rulings are a classic instrument for the national tax authorities to ensure legal certainty, see my Opinion in the cases Luxembourg v Commission and Engie Global LNG Holding and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:383, point 169).