Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 26 March 2026 (1)
Joined Cases C‑734/23 P and C‑735/23 P
Soudal NV (C‑734/23 P),
Esko-Graphics BVBA (C‑735/23 P)
v
European Commission
( Appeals – 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 appeals brought by Soudal NV and Esko-Graphics BVBA (‘the appellants’) against the judgment of the General Court of 20 September 2023 (2) (‘the judgment under appeal’). The present appeals
are 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 appeals give 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. The addressees of the tax rulings included the appellants.
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 appellants.
B.      The proceedings before the General Court and the judgment under appeal
16.      Between
2 May and 13 July 2016, several companies, including the appellants, brought actions for annulment of the decision at issue; those were registered as Cases T‑201/16, T‑335/16, T‑357/16 and T‑369/16.
17.      The appellants raised four pleas in law at first instance on the basis of almost identical applications. (12) In essence, they challenged the Commission’s findings that the tax practice at issue constituted an aid scheme, that it conferred an advantage and that it was selective, and they also challenged the Commission’s order for recovery of the aid.
18.      By decision dated 16 February 2018, the General Court, inter alia, stayed the proceedings in Cases T‑201/16, T‑335/16, T‑357/16 and T‑369/16 – the cases giving rise to the judgment under appeal – 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 9 September 2022, the General Court decided, in accordance with Article 71(3) of its Rules of Procedure, to resume the proceedings in Cases T‑201/16, T‑335/16, T‑357/16 and T‑369/16.
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 appellants lodged the present appeal on 30 November 2023. They claim that the Court of Justice should:
-      set aside the judgment under appeal;
-      annul the decision at issue;
-      in the alternative, annul Article 2 of the decision at issue;
-      in the further alternative, refer the case back to the General Court;
-      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 appeals and order the appellants to pay the costs.
24.      By decision of 18 January 2024, the President of the Court of Justice joined the two appeals for the purposes of the written and oral procedure as well as for the purposes of the judgment.
25.      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
26.      The appellants raise three grounds
in support of almost identical appeals.
27.      By their first ground of appeal, they claim that the General Court incorrectly upheld the reference framework defined by the Commission (see Section A below). By their second ground of appeal, they complain that the General Court erred in finding that the tax practice at issue was selective (see Section B below). Lastly, they claim that the General Court erred in law in its assessment of the lawfulness of the order for recovery of the aid (on that third ground of appeal, see Section C below).
A.      The first ground of appeal: determination of the reference framework
28.      By their first ground of appeal, which is divided into three complaints, the appellants claim, in essence, that the General Court made errors of law when determining the reference framework. By their first complaint, they argue that, when determining the reference framework, the General Court failed to take account of the recognised practice for interpreting Article 185(2)(b) of CIR 92 in Belgium, wrongly relying instead on its own interpretation of Belgian law (see point 35 et seq. below).
29.      By their second and third complaints, the appellants then cite reasons why they consider that the General Court erred in law in its interpretation of Article 185(2)(b) of CIR 92 and, consequently, in its determination of the reference framework; by the second complaint, they argue that the General Court erred in law by ruling that a
tax adjustment which was advantageous for taxpayers depended on a prior disadvantageous adjustment made by another tax authority (see point 64 et seq. below). Lastly, they complain that the General Court erred in law in finding that Article 185(2)(b) of CIR 92 did not allow an adjustment by reference to a ‘hypothetical profit’ (see point 69 et seq. below).
30.      The first complaint is the focal point of the following analysis, because if the General Court, when determining the reference framework, correctly disregarded the recognised interpretation practice in Belgium and did not err in law in confirming the reference framework determined by the Commission in the decision at issue, it is no longer relevant whether the tax practice at issue derogates from the reference framework for other reasons too, in particular those challenged by means of the second and third complaints.
1.      Determination of the reference framework as a condition for the examination of State aid
31.      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.
32.      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
33.      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)
34.      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
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. (21) 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. (22)
3.      The first complaint within the first ground of appeal: determination of the reference framework by the General Court
35.      To determine whether those findings of the General Court are vitiated by any error of law, I shall first examine the appellants’ objection that the General Court erred in determining 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 36 et seq. and point 41 et seq. below). (23) 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 50 et seq. below).
(a)    Principle: being bound by the Member State’s assessment when determining the reference framework
36.      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. (24) 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. (25)
37.      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. (26) 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. (27) 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. (28)
38.      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, (29) on which the appellants rely, 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. (30) 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. (31)
39.      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. (32) 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. (33)
40.      In that respect, the starting point of the appellants’ 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
41.      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 45 below) or where the national authorities manifestly apply the tax law contra legem, and hence inconsistently (point 46 et seq. below). The standard of review to be applied is limited to a mere plausibility check (point 42 et seq. below).
(1)    Standard of review: the plausibility check
42.      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. (34)
43.      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. (35) 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. (36)
44.      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. (37)
(2)    Manifestly inconsistent configuration
45.      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. (38) Such an abuse of fiscal autonomy may be assumed in the case of a manifestly inconsistent configuration of tax law. (39) 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. (40) 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. (41)
(3)    Manifest application of the law contra legem
46.      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.
47.      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 (42) 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.
48.      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’. (43)
49.      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. (44)
(c)    Application of the standard of review
50.      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
51.      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). (45)
52.      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
53.      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. (46) That is why, at the request of the taxpayers, only the (hypothetical) profit of a comparable standalone company was taxed.
54.      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.
55.      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.
56.      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 appellants agreed prices during the period in question for intra-group transactions (supplies and services) arising from cross-border relationships.
57.      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.
58.      Consequently, the appellants’ 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)    The objection that the Commission altered its reasoning
59.      Similarly unconvincing is the appellants’ objection that the Commission had relied, in the opening decision, on a different reference framework, with the result that the appellants were unable to make their observations appropriately in the procedure before the Commission. It is not clear from the appellants’ arguments whether the General Court is supposed to have committed an error of law and, if so, what it might consist of.
60.      In so far as the appellants rely on an infringement of the right to submit comments
within the meaning of Article 24(1) of Regulation 2015/1589 as an essential procedural rule, they did not allege such an error of law even at first instance. Even assuming that such an infringement can be examined ex officio at any stage of the proceedings, (47) no such infringement exists here.
61.      The right to submit comments merely requires that the relevant issues of fact and law be expressly and clearly mentioned in the opening decision. (48) Only then are the parties able to respond appropriately. The relevant issues of fact and law primarily include those that are to be examined with a view to the adoption of the final decision. (49) Consequently, greater involvement of the interested parties (or even the publication of a supplementary or amended opening decision) may be required if new facts
are established or significant
amendments to the relevant legal framework occur after publication of the opening decision. (50)
62.      The Commission complied with those requirements. In the decision at issue, it merely clarified its preliminary (51) legal assessment under Article 6 of Regulation 2015/1589 based on the opening decision, without referring to any relevant new facts or amendment
to the legal framework. The opening decision indicates that the tax exemption for ‘excess profits’ derogates from ‘normal’ corporate tax law. (52) That reasoning – which was at times quite ambiguous in the opening decision – was clarified by the Commission in the decision at issue to the effect that, while Article 185(2)(b) of CIR 92 is part of the reference framework, it cannot serve as a basis for the tax practice at issue. It has neither been argued nor is it apparent how that clarification of the legal assessment could have impaired the appellants’ ability to submit
their comments appropriately. They were free to present their assessment of the facts and the law in the formal investigation procedure. They did not avail themselves of that opportunity.
(e)    Interim conclusion
63.      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. The first complaint within the first ground of appeal is therefore unfounded.
4.      The second complaint within the first ground of appeal: the General Court required an initial adjustment
64.      In the remainder of the present Opinion, the question whether the tax practice at issue is also manifestly contrary to the wording of Article 185(2)(b) of CIR 92 in other respects may be left aside. Even if there were no other manifest instances of being at odds with the wording, the first ground of appeal would be unfounded.
65.      That applies, first of all, to the appellants’ objection that the General Court wrongly regarded an initial adjustment already made abroad (the first upward revision of taxable profits) as a prerequisite for the application of Article 185(2)(b) of CIR 92. For the sake of completeness alone, it should be noted that the appellants’ line of argument is based on a misunderstanding of the judgment under appeal, since the General Court did not rely on the fact that the ‘excess profit’ exempted in Belgium was also taxed in the other State. (53) The General Court merely required that that profit also be included in the profits of another company in the group.
66.      Second, the objection that the General Court substituted its own 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).