OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 26 March 2026 (1)
Case C‑736/23 P
ZF CV Systems Europe, formerly Wabco Europe
v
European Commission
( Appeal – State aid – Aid scheme implemented by the Kingdom of Belgium – Tax ruling – Excess profit exemption – Criterion of State-aid control in tax law – Unlawful administrative practice as aid )
I.      Introduction
1.        When assessing the practice of the tax authorities of a Member State under State-aid law, are the European Commission and the EU Courts bound by the Member State’s interpretation of a provision of national tax law where that interpretation is not consistent with the wording of the provision?
2.        That question lies at the heart of the appeal brought by ZF CV Systems Europe (‘the appellant’) against the judgment of the General Court of 20 September 2023 (2) (‘the judgment under appeal’). The present appeal is part of a series of appeals on which I am likewise delivering Opinions today. (3)
3.        The judgment under appeal concerns the decision of the Commission of 11 January
2016 (4) (‘the decision at issue’), in which the Commission considered that the ‘excess profit exemption’ (‘the tax practice at issue’) implemented by the Belgian tax authorities from 2004 to 2014 constituted aid incompatible with the internal market. The tax practice at issue (sometimes also referred to as an excess profit tax ruling system) made it possible to reduce the taxable profit of companies in Belgium forming part of an international group through advance tax rulings (‘tax rulings’).
4.        The Belgian tax authorities based that practice on a provision of Belgian tax law, namely Article 185(2)(b) of the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘CIR 92’). According to its wording, it allows corporate profits to be adjusted in cases where they have been influenced by arrangements which do not comply with the arm’s length principle. The provision probably comes into play most frequently in cases of non-arm’s length transfer pricing. (5) Both the Commission, in the decision at issue, and the General Court, in the judgment under appeal, concluded that that tax practice constituted a derogation from the entire body of Belgian law on corporate income tax
(as the reference framework).
5.        The present appeal gives the Court of Justice the opportunity to decide to what extent the Commission and the General Court are bound by the national interpretation of a provision when establishing what constitutes ‘normal’ national tax law as a reference framework for the assessment of compliance with State-aid law. In particular, that question arises here because the tax practice at issue, based on Article 185(2)(b) of CIR 92, is a well-established administrative practice in Belgium.
II.    Legal framework
A.      European Union law
6.        The framework in EU law comprises Articles 107 and 108 TFEU.
B.      Belgian law
7.        In Belgium, the rules governing the taxation of income are codified in CIR 92. Under Article 1(1) of CIR 92, one of the forms of income taxation is a levy on the total income of resident companies, namely corporate income tax.
8.        By means of the Law of 21 June 2004 amending CIR 92 and amending the Law of 24 December 2002, (6) Belgium introduced new schemes for cross-border transactions between group companies, which provided for profit adjustments in cases of non-arm’s length arrangements.
9.        Article 185(2) of CIR 92 states:
‘For two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:
(a)      when two companies are in their commercial and financial relationships linked by conditions agreed upon or imposed on them which are different from those which would have been agreed upon between independent companies, the profit which – under those conditions – would have been made by one of the companies but is not because of those conditions, may be included in the profit of that company;
(b)      when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the profit of the first company is adjusted in an appropriate manner.
The first subparagraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation.’
10.      It is apparent from the explanatory memorandum to the law that the purpose of that provision is to apply the arm’s length principle in cross-border situations. (7)
11.      The position of the Belgian tax authorities on the interpretation of that provision is apparent from a circular of 4 July 2006, in which the explanatory memorandum to the law is essentially repeated. (8) In addition, the Belgian Minister for Finance has taken a position on the application of Article 185(2)(b) of CIR 92, in particular in response to several parliamentary questions. (9)
III. Facts and proceedings to date
A.      Background to the dispute
12.      In the period from 2004 to 2014, the authority responsible for issuing tax rulings, by means of 66 such rulings issued on the basis of Article 185(2)(b) of CIR 92, reduced the amount of profit taxable in Belgium for 55 companies established in Belgium which belonged to multinational groups.
13.      At the request of the taxpayers, the competent authority did not base its assessment on transfer prices determined by it, but compared the profits of the Belgian companies with the average profits of a comparable standalone company. (10) The result of that comparative analysis was a percentage expressing the divergence between the taxpayers’ actual profit and the hypothetical average profit of a standalone company. Profits corresponding to that percentage were not subject to tax in the following five years. At the request of the taxpayers, therefore, the nature and amount of the basis of assessment changed, in that it was no longer the profit actually realised (which, under Belgian tax law, reflects actual ability to pay) which served as the basis of assessment, but only a reduced amount of that profit. In that regard, it is perfectly reasonable to refer to taxation of a hypothetical average profit. (11)
14.      By the decision at issue, the Commission found that the profit reductions granted by the competent Belgian authority through that tax practice constituted State aid within the meaning of Article 107(1) TFEU which was incompatible with the internal market and which had been unlawfully implemented by Belgium, in breach of Article 108(3) TFEU.
15.      Furthermore, the Commission ordered that the aid granted be recovered from the recipients, a definitive list of which was to be drawn up by Belgium at a later date. However, in the annex to the decision at issue,
for informational purposes
on the basis of information provided by Belgium, the Commission already lists 55 recipients, including the appellant.
B.      The proceedings before the General Court and the judgment under appeal
16.      On 6 September
2016, the appellant brought an action for annulment of the decision at issue; that was registered as Case T‑637/16.
17.      The appellant raised six pleas in law at first instance. (12) In essence, it challenged the Commission’s findings that the tax practice at issue constituted an aid scheme and that it was categorised as conferring a selective advantage
and raised a plea alleging infringement of the principle of good administration.
18.      By decision dated 16 February 2018, the General Court, inter alia, stayed the proceedings in Case T‑637/16 – pending final decision in Cases T‑131/16 and T‑263/16.
19.      By its judgment of 14 February 2019 (13) in Cases T‑131/16 and T‑263/16, the General Court annulled the decision at issue, as the Commission had erroneously found that the practice constituted an aid scheme. Following an appeal brought by the Commission against that judgment, the Court of Justice delivered its judgment on 16 September 2021. (14) By that judgment, it set aside the judgment of the General Court, as the Commission’s finding of an aid scheme was not objectionable, and referred the case back to the General Court. In the first set of proceedings, the General Court had not yet examined whether the tax rulings constituted State aid and whether the recovery of that aid had been correctly ordered. The General Court was to rule on those points in the second set of proceedings. (15)
20.      On 26 April 2022, the General Court decided, in accordance with Article 71(3) of its Rules of Procedure, to resume the proceedings.
21.      By the judgment under appeal, dated 20 September 2023, the General Court dismissed the actions.
IV.    Proceedings before the Court of Justice
22.      The appellant lodged the present appeal on 30 November 2023. It claims that the Court of Justice should:
-      set aside the judgment under appeal;
-      annul the decision at issue;
-      order the Commission to pay the costs of the present appeal proceedings and of the proceedings before the General Court.
23.      The Commission contends that the Court of Justice should dismiss the appeal and order the appellant to pay the costs.
24.      All parties have submitted written observations to the Court. In accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, the Court decided not to hold a hearing.
V.      Legal assessment
25.      The appellant raises three grounds
in support of its appeal. By its first ground of appeal, it challenges the assessment criterion used by the General Court in order to determine the reference framework. By its second ground of appeal, it challenges the General Court’s finding that the Commission correctly defined the reference framework and correctly considered that the tax practice at issue constituted a derogation from that framework. Since the first two grounds of appeal are directed against the determination of the reference framework and against a possible derogation from it, I shall examine them together (Section A). Lastly, the appellant claims that General Court incorrectly held that the tax practice at issue was selective (third ground of appeal, Section B).
A.      The first ground of appeal: determination of the reference framework
26.      The appellant claims, in essence, that the General Court erred in law when
determining the reference framework. It first challenges the standard of review on which the General Court relied in order to determine the reference framework (see point 31 et seq. below). In any event, it claims that the General Court erred in law in its interpretation of Article 185(2)(b) of CIR 92 (see point 46 et seq. below) and, in particular, erred in law in finding that Article 185(2)(b) of CIR 92 requires the Belgian tax authorities, before making a profit adjustment in favour of the taxpayer, to determine whether the profit, to the extent of the adjustment envisaged, has already been taken into account in the profit of another company (see point 56 et seq. below).
1.      Determination of the reference framework as a condition for the examination of State aid
27.      According to settled case-law
of the Court, (16) classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires that, first, there be intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the beneficiary. Fourth, it must distort or threaten to distort competition.
28.      The only issue in the present case is the question whether a selective advantage has been conferred. In accordance with settled case-law
of the Court, (17) selectivity in tax measures must be determined in three stages. In the first stage, it is necessary to identify the ordinary or ‘normal’ tax regime which applies in the Member State concerned, in other words the reference framework. The second stage involves demonstrating, on the basis of that ordinary or ‘normal’ tax system, whether the tax measure at issue is a derogation from that ordinary system, in so far as it differentiates between operators which, in the light of the objective pursued by the ordinary system, are in a comparable factual and legal situation. Where a derogation from ‘normal taxation’ has been identified, the final stage is examining whether the derogation is justified.
2.      Findings of the General Court
29.      The General Court follows the line of argument adopted by the Commission in the decision at issue, according to which the tax practice at issue constitutes a derogation from Belgian tax law, which is the reference framework. (18) That practice, the General Court rules, is not prescribed in any of the provisions of CIR 92, nor can it, in particular, be justified on the basis of Article 185(2)(b) of CIR 92. The General Court emphasises that the Commission did not exclude from the reference framework Article 185(2)(b) of CIR 92 as such but rather its (unlawful) application. (19)
30.      The General Court holds that the Belgian tax authorities, by reducing profits through the tax rulings, systematically applied that provision contra legem. (20) First, it states, the wording of Article 185(2)(b) of CIR 92 indicates that the provision applies only if there is a cross-border relationship between two associated companies and if the profit to be adjusted is also (21) included in the profit of the other company and if the profit so included is profit which should have been made by that other company if it had conducted its transactions on an arm’s length basis. (22) Second, the practice of exempting from corporate income tax a percentage of profit as excess profit has no basis in the wording of the law. (23)
3.      Determination of the reference framework by the General Court
31.      To determine whether those findings of the General Court are vitiated by any error of law, I shall first examine the appellant’s objection that the General Court erred in upholding
the Commission’s determination of the
reference framework by disregarding the recognised practice for interpreting Article 185(2)(b) of CIR 92 in Belgium and relying instead on its own interpretation. To that end, I shall set out the limits within which the Commission and the EU Courts, when determining the reference framework (and hence the occurrence of a derogation from it) are bound by the Member State’s interpretation of a national tax provision (point 32
et seq. and point 37 et seq. below). (24) I shall then examine whether the General Court erred in law in applying that test and correctly judged that the tax practice at issue was not part of the reference framework (point 46 et seq. below).
(a)    Principle: being bound by the Member State’s assessment when determining the reference framework
32.      When determining the reference framework, the Commission and the EU Courts are bound, in principle, by the Member State’s configuration and interpretation of its national tax law. (25) The primary purpose of that binding effect of the national system is to safeguard the fiscal autonomy of Member States. It also reflects the principle of legality of taxation, which the Court of Justice has recognised as forming part of the legal order of the European Union as a general principle of law. (26)
33.      Consequently, the Court of Justice also rightly assumes that the Member States have a margin of discretion regarding aid schemes in the form of general tax laws and that the standard of review of the Commission and the EU Courts is correspondingly less stringent. (27) The Court has emphasised that, given the current state of harmonisation of EU tax law, the Member States are free to establish the system of taxation which they deem most appropriate. (28) That discretion enjoyed by the Member States extends to determining the characteristics constituting each tax and applies in particular to the implementation and configuration of the arm’s length principle for transactions between associated companies. (29)
34.      That is the sense in which the judgments of the Court of Justice in
Commission v Amazon.com and Others and in Luxembourg and Others v Commission (30) must be understood. In
the judgment in
Luxembourg and Others v Commission, the Court of Justice stated that, when determining the reference framework, the Commission is, in principle, required to accept the interpretation of the relevant provisions of national law given by the Member State concerned, provided that that interpretation is compatible with the wording of those provisions. (31) In the judgment in Commission v Amazon.com and Others, the Court found, among other things, that the Commission had unlawfully applied the OECD Guidelines on transfer pricing without having demonstrated that they had been, wholly or in part, explicitly adopted in Luxembourg law. (32)
35.      Developing that case-law, in the judgment in
Prezydent Miasta Mielca the Court emphasised the fiscal autonomy of the Member States, stating that, when determining the fundamental characteristics of a tax, Member States may legitimately pursue, in addition to a purely budgetary objective, one or more other objectives, which then likewise constitute part of the relevant reference framework. (33) For that reason, the Court regarded a general exemption from property tax for land forming part of railway infrastructure, where that infrastructure was made available to rail carriers, as part of the reference framework. (34)
36.      In that respect, the starting point of the appellant’s complaint is correct, namely that the reference framework must be determined, in principle, on the basis of the Member State’s configuration and interpretation of its tax law.
(b)    Exception: manifestly inconsistent configuration or manifest application of the law contra legem
37.      The limits of that discretion enjoyed by Member States when determining the reference framework are exceeded where the tax law is configured in a manifestly inconsistent manner (point 41
below) or where the national authorities manifestly apply the tax law contra legem, and hence inconsistently (point 42
et seq. below). The standard of review to be applied is limited to a mere plausibility check (point 38 et seq. below).
(1)    Standard of review: the plausibility check
38.      The Commission and the EU Courts confine themselves to a plausibility check when reviewing whether the national tax laws are configured in an inconsistent manner or whether the national tax laws are being applied contra legem. (35)
39.      That limitation to a plausibility check protects the Commission and the EU Courts, first, from having to interpret correctly 27 different tax regimes in detail and so possibly becoming ‘overburdened’ by the sheer volume of material. (36) Second, it ensures that the Commission does not become a de facto supreme inspector of taxes and that the EU Courts, by dint of reviewing the Commission’s decisions, do not become de facto supreme tax courts. The fact is that, where review is confined to plausibility, not every simple error of law in a tax assessment constitutes a derogation from the reference framework. Consequently, the Commission and the EU Courts need not review all such errors for lawfulness. (37)
40.      It is therefore only necessary to examine, at EU level, whether the national tax laws
are configured in a manifestly inconsistent manner or whether their application by the national authorities is manifestly contra legem. That is the case where the configuration and application cannot be plausibly explained to a third party, such as the Commission or the EU Courts. (38)
(2)    Manifestly inconsistent configuration
41.      The limits of the discretion enjoyed by the Member States to configure their tax systems are exceeded where Member States abuse their tax law to confer advantages on individual companies in circumvention of the law on State aid. (39) Such an abuse of fiscal autonomy may be assumed in the case of a manifestly inconsistent configuration of tax law. (40) In its recent case-law, therefore, the Court has held that a general tax ruling imposing a tax burden is contrary to EU law where it has been configured according to manifestly discriminatory parameters intended to circumvent EU law on State aid. (41) General differentiations within national tax law are therefore not part of the reference framework if they have no rational basis within the reference framework, in other words within national tax law. (42)
(3)    Manifest application of the law contra legem
42.      The limits of the Member State’s discretion when determining the reference framework are also exceeded where the application of a national tax provision is manifestly at odds with its wording. Accordingly, where national authorities apply a tax provision in a manner which is manifestly at odds with its wording, the Commission and the EU Courts are not bound by that practice applying that provision when determining the reference framework.
43.      In that case, the national authorities are essentially repudiating the ‘normal’ national tax law adopted by the national legislature in the exercise of its fiscal autonomy. One effect of the principle of legality of taxation (43) is that the fiscal autonomy of the Member States is exercised primarily by the national legislature. It follows that national law is the primary reference point for determining the reference framework. Although the national authorities’ application of the law is the main factor, in principle, in that process, if the application of a law is manifestly at odds with its wording, the wording of the law takes precedence when it comes to determining the reference framework.
44.      Accordingly, the Court of Justice has stated in its recent case-law that, when determining the reference framework, the Commission is, in principle, required to accept the interpretation of the relevant provisions of national law given by the Member State concerned, ‘provided that that interpretation is compatible with the wording of those provisions’. (44)
45.      It therefore follows from fiscal autonomy, first, that the wording of the law constitutes the point of reference for the review of the reference framework. Second, the review of any derogation from the wording of the law is limited to a plausibility check. (45)
(c)    Application of the standard of review
46.      If that standard is applied, it emerges that the General Court did not err in law by upholding the reference framework determined by the Commission, in that it did not hold Article 185(2)(b) of CIR 92, but rather its manifestly unlawful application, to be a derogation from the reference framework, namely Belgian law on corporate income tax.
(1)    Whether Article 185(2)(b) of CIR 92 is manifestly inconsistent
47.      Article 185(2)(b) of CIR 92 is not manifestly inconsistent. On the contrary, it fits coherently into the Belgian tax system by seeking to ensure appropriate taxation in each country. At the same time, economic double taxation can thus be avoided within a multinational group when adjustments are made for transactions entered into on non-arm’s length terms which have influenced profits (the provision probably comes into play most frequently in cases of transfer pricing adjustments). (46)
48.      According to its wording, Article 185(2)(a) and (b) of CIR 92 allows the competent authority, for example, to adjust for tax purposes the prices of cross-border transactions between two companies of a multinational group in accordance with the arm’s length principle. That means that, for transactions between two associated companies, a price is imputed for tax purposes which independent companies would have agreed between them. Article 185(2)(a) of CIR 92 allows the profit determined on the basis of that hypothetical price to be attributed to the ‘correct’ company for tax purposes. Conversely, Article 185(2)(b) of CIR 92, by adjusting the price in accordance with the arm’s length principle, serves to reduce the profit arising from the cross-border transaction if it is also included in the other company’s profits. In that way, consideration of the adjusted transfer price in the other State can ultimately prevent economic double taxation of the same profit by two tax creditors.
(2)    Manifestly unlawful application of Article 185(2)(b) of CIR 92 through the tax practice at issue
49.      The Belgian authorities, by contrast, argue that the semantic content of Article 185(2)(b) of CIR 92 is designed to ensure that a Belgian company belonging to a multinational group is taxed only on the profit that a standalone company would also have made. Profits above that level correspond to the effects of synergy, economies of scale or other benefits drawn from participation in a multinational group, according to the Belgian authorities. Those advantages, they assert, would not exist for a comparable standalone company and are therefore to be exempted from tax. (47) That is why, at the request of the taxpayers, only the (hypothetical) profit of a comparable standalone company was taxed.
50.      That interpretation and the tax practice at issue which stems from it are manifestly not compatible with the wording of Article 185(2)(b) of CIR 92 and therefore do not form part of the reference framework.
51.      Article 185(2)(b) of CIR 92 presupposes ‘conditions agreed between the two companies’ being the same as ‘those which would have been agreed between independent companies’. As is apparent from the introductory sentence of Article 185(2) of CIR 92, moreover, that provision applies only in respect of the ‘reciprocal cross-border relationships’ between associated companies.
52.      The criterion of a specific cross-border business relationship and any conditions agreed in that context, however, play no part in the tax practice at issue. Profit reduction was granted independently of cross-border business relationships. It did not concern the application of the arm’s length principle to transfer prices, for example, but the reduction of the total profit of the Belgian company to a hypothetical profit. It is not even established to what extent the appellant agreed prices during the period in question for intra-group transactions (supplies and services) arising from cross-border relationships.
53.      That application of the provision, which is at odds with its wording, cannot be plausibly
explained. The requirement of a specific cross-border business relationship and of the agreement of conditions between two companies may be inferred from that provision just as easily as the absence of those criteria in the tax practice at issue.
54.      Consequently, the appellant’s objection that the General Court failed to examine whether the tax practice at issue manifestly derogated from the reference framework is likewise unconvincing. Although the General Court did not expressly address the question whether the derogation was manifest, it did apply the standard of review proposed here in establishing that the tax practice at issue was at odds with the wording of the law.
(d)    Interim conclusion
55.      The tax practice at issue
is manifestly not based on Article 185(2)(b) of CIR 92. Consequently, the General Court was right to confirm the Commission’s interpretation that that tax practice is not part of the reference framework but derogates from it.
4.      The obligation of the Belgian tax authorities to determine whether the adjusted profit in favour of the taxpayer is already included in the profit of another company
56.      Consequently, the appellant’s objection that the Court erred in law in determining the reference framework by assuming that Article 185(2)(b) of CIR 92 obliges the Belgian tax authorities to determine whether the profit adjusted in favour of the taxpayer is already included in the profit of another company can be left unexamined.
Even if the General Court had wrongly assumed such a condition, the second ground of appeal would still be unfounded.
For the sake of completeness, it should be noted that the appellant’s argument is based on a misunderstanding.
57.      The appellant refers to the General Court’s finding that Article 185(2)(b) of CIR 92 requires, for a profit adjustment in favour of the taxpayer, that the profit to be adjusted is already included in the profit of another company. It relies in particular on the use of the term ‘already’, from which it concludes that the General Court assumes a prior verification obligation on the part of the Belgian tax authorities.
58.      However, the General Court did not lay down such a duty of verification. In so far as the starting point of the argument is the use of the word ‘already’, that is a translation error. As can be seen from the French-language version (également) of the judgment as well as from the other considerations of the General Court, the General Court means that to be ‘also’. It was therefore only necessary that the profit corresponding to the adjustment envisaged also be taken into account in the profit of another company in the group. (48) The General Court thus refers to the fact that Article 185(2)(b) of CIR 92 presupposes the existence of a specific business relationship with another company (in the same corporate group) (see
point 51).
59.      Consequently, the appellant’s arguments relating to a possible ex post
review and adjustment by the Belgian tax authorities are also ineffective.
It is neither apparent nor has it been argued to what extent a subsequent adjustment of the profit – as presented by the Commission in the decision at issue and not challenged by the appellant – leads to a tax practice that is consistent with the wording of Article 185(2)(b) of CIR 92 or with Belgian law on corporate income tax in general.
That is because the reference point for such a subsequent adjustment is the percentage determined on the basis of a comparison between the estimated profit of the group company on the one hand and the estimated profit of the standalone
company on the other.
Even after such an adjustment, there remains a tax reduction which clearly cannot be based on Article 185(2)(b) of CIR 92.
5.      Conclusion on the examination of the first two grounds of appeal
60.      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 appellant’s first two grounds of appeal are therefore unfounded.
B.      Third ground of appeal: legality of the recovery order
61.      By its third ground of appeal, the appellant challenges the General Court’s finding that the Commission did not err in law in finding that the tax practice at issue was selective.
62.      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 28 above).
63.      In the appellant’s view, none of the three reasons given by the Commission and upheld
by the General Court justifies such unequal treatment of comparable companies by the tax practice at issue.
Since the three reasons independently support the assumption of unequal treatment, the appellant’s ground of appeal is well founded only if all of the reasons prove to be incorrect.
Conversely, if any one of the reasons proves to be valid, the third ground of appeal must be rejected.
1.       Discrimination against standalone companies and companies belonging to a purely domestic corporate group
64.      According to the General Court’s findings, the excess profit exemption leads to a selective disadvantage for companies that are not part of a multinational group. (49) That is because the aim of the Belgian corporate income
tax system is to tax all profits of taxable companies, regardless of whether they are independent or belong to a multinational group. (50) In that sense, Article 185(2)(b) of CIR 92 aims to ensure equal taxation of associated and non-associated companies. (51)
65.      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. (52) Consequently, 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. (53)
66.      The appellant argues 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.
67.      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.
68.      It is true that the appellant rightly object that Article 185(2)(b) of CIR 92 applies exclusively to multinational group companies. As the General Court rightly states, that provision thus ensures equitable taxation of profits.
Unlike companies with purely domestic operations, multinational groups are exposed to the risk of double taxation which may result from the adjustment of transfer prices.
69.      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.
70.      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.
71.      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.
72.      Consequently, for that reason alone, the third ground of appeal is unconvincing.
The Commission and the General Court did not err in law when they assumed unequal treatment.
2.      Discrimination against companies, inter alia, not making investments in Belgium
73.      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 (54) also give rise to unequal treatment of economic operators in a comparable factual and legal situation. (55) 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 67 et seq. above).
3.      Conclusion on the examination of the third ground of appeal
74.      Since the General Court was right to dismiss the objection to the classification of the tax practice at issue as a selective measure, the third ground of appeal is likewise unfounded.
C.      Conclusion on the examination of the grounds of appeal
75.      Since all three grounds of appeal are unfounded, the appeal must be dismissed.
VI.    Costs
76.      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.
77.      Since the appellant has been unsuccessful and the Commission has applied for costs, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.
VII. Conclusion
78.      In the light of all of the foregoing, I propose that,
in Case
C‑736/23 P, the Court should:
1.      Dismiss the appeal;
2.      Order
the appellant to
pay the costs of the appeal proceedings.
1      Original language: German.
2      Judgment of 20 September 2023, ZF CV Systems Europe v Commission (T‑637/16, EU:T:2023:564).
3      That concerns the proceedings in Cases C‑734/23 P and C-735/23 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.
This Opinion corresponds, in essence, to the statements made in my Opinion in Cases C‑734/23 P and C‑735/23 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 51, 52 and 55 of the judgment under appeal and recital 34 of the decision at issue.
8      Paragraphs 53 and 55 of the judgment under appeal, making reference to recital 38 of the decision at issue.
9      Paragraphs 56 and 57 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 A4.
10      On the following observation, see paragraph 58 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 paragraphs 12
and 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 46 et seq. of the judgment under appeal, in particular paragraph 60.
19      Paragraph 47 of the judgment under appeal.
20      Paragraph 59
of the judgment under appeal.
21      It is true that the English-language version of the judgment refers to ‘already included’, rather than ‘also included’. However, it is clear from the statements of the General Court and from a comparison with, inter alia, the French-language version (‘également repris’), that that is a translation error. In this regard, see point 58 below.
22      Paragraph 54 of the judgment under appeal.
23      Paragraph 58 of the judgment under appeal.
24      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.).
25      See my Opinion in Prezydent Miasta Mielca (C‑453/23, EU:C:2024:898, point 27).
26      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).
27      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.).
28      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).
29      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.).
30      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).
31      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).
32      Judgment of 14 December 2023, Commission v Amazon.com and Others (C‑457/21, EU:C:2023:985, paragraph 56).
33      Judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 51).
34      Judgment of 29 April 2025, Prezydent Miasta Mielca (C‑453/23, EU:C:2025:285, paragraph 80).
35      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).
36      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).
37      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).
38      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 Engie Global LNG Holding and Others v Commission (C‑454/21 P and C‑451/21 P, EU:C:2023:383, point 92).
39      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).
40      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).
41      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).
42      See my Opinions in Prezydent Miasta Mielca (C‑453/23, EU:C:2024:898, point 34) and Tesco-Global Áruházak (C‑323/18, EU:C:2019:567, point 151).
43      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.
44      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).
45      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 28). 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).
46      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.
47      Belgium’s view is set out in recital 14 of the decision at issue.
48      See, in particular, paragraphs 54 and 55 of the judgment under appeal. The General Court therefore also did not rely on the fact that the ‘excess profit’ exempted in Belgium was also taxed in the other State.
49      Paragraph 110 et seq. of the judgment under appeal.
50      Paragraph 112 of the judgment under appeal.
51      Paragraph 113 of the judgment under appeal.
52      Paragraph 114 of the judgment under appeal.
53      Paragraph 118
of the judgment under appeal.
54      Paragraph 119 et seq. and paragraph 134 et seq. of the judgment under appeal.
55      See the further statements in my Opinion in Cases C‑734/23 P and C‑735/23 P (point 89 et seq.).