natgillin/translations-raw huggingface dataset:
The contested tax ruling was indeed issued more than 10 years before the Commission started its investigation, namely on 6 November 2003.
Amazon EHT [LuxSCS] irrevocably grants AEU [LuxOpCo], under all Amazon EHT [LuxSCS] intellectual property rights in or comprising the Amazon EHT [LuxSCS] Intellectual Property, whether existing now or in the future, the following sole and exclusive right and license to the Amazon EHT [LuxSCS] Intellectual Property during the Term, solely for the Licensed Purpose, to: (i) make, use, reproduce, copy, modify, translate, integrate into or extract from a database and create derivative works of Amazon EHT [LuxSCS] Intellectual Property; (ii) publicly perform or display, import, broadcast, transmit, distribute and communicate to the public by any means whatsoever, including but not limited to wire or wireless transmission process, using broadcasting, satellite, cable or network, license, offer to sell, and sell, rent, lease or lend originals and copies of, and otherwise commercially or non-commercially exploit any Amazon EHT [LuxSCS] Intellectual Property (and derivative works thereof); and (iii) sublicense to Affiliates or third parties the foregoing rights, including the right to sublicense to further third parties. “
However, contrary to what Amazon claims, that does not mean that all and any aid granted under it constitutes existing aid that cannot be recovered.
Licenčna pogodba, točka 1.4: „‚European Country‘ means (a) the economic, scientific, and political organization known as the European Union consisting, as of the Effective Time [ 30 April 2006], of Belgium, France, Italy, Luxembourg, Netherlands, Germany, Denmark, Greece, Ireland, United Kingdom, Spain, Portugal, Austria, Finland, Sweden, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia, and including any and all other countries that may become members of such organization during the Term, and (b) any countries listed as ‚Applicant countries‘ or ‚Other European countries‘ on the Web page located at http://europa.eu.int/abc/governments/index_en.htm#, or any successors thereto or replacements thereof. “
In the present case, the aid granted as a result of the contested tax ruling was granted on an annual basis, at the moment when LuxOpCo had to pay its corporate income tax in Luxembourg.
Notranji akt skupine Amazon: licenčna pogodba, točka 2.5 (License Fee) in Exhibit A.
That is because the purpose of the contested tax ruling was to enable LuxOpCo to determine, over a certain period of time, its annual corporate income tax liability in Luxembourg.
Ta neopredmetena sredstva so v licenčni pogodbi poimenovana z izrazom „Derivative Works“ ( „predelana avtorska dela“); v skladu s točko 1.3 navedene pogodbe ta izraz pomeni vsa nova dela, ki jih ustvari družba AEU [LuxOpCo] ali so [zanjo] ustvarjena na podlagi predhodno obstoječega materiala, ki je del intelektualne lastnine družbe Amazon EHT [LuxSCS] [vključno z neopredmetenimi sredstvi], ali na podlagi dostopa do navedene intelektualne lastnine ali njene uporabe ( „any and all new works created by or for AEU [LuxOpCo] from pre-existing material contained within, or as a result of access to or use of the Amazon EHT [Lux SCS] Intellectual Property [including the Intangibles][…]“).
That ruling endorses a transfer pricing arrangement that allows LuxOpCo to determine its transfer prices, which in turn determine its annual taxable profit.
Notranji akt skupine Amazon: licenčna pogodba, točka 2.1(b): „AEU [LuxOpCo] irrevocably and exclusively assigns and agrees to assign to Amazon EHT [LuxSCS], its successors, and assigns, all right, title, interest and ownership in and to any and all Derivative Works of the Amazon EHT [LuxSCS] Intellectual Property created by or for AEU [LuxOpCo] as provided under Section 2.1(a).“
That amount of profit is then declared in its annual corporate income tax declaration, which Luxembourg has accepted each and every year during the relevant period.
Licenčna pogodba, točka 9.2: „(a) AEU [LuxOpCo] shall, at its sole expense, use its best efforts to prevent, investigate, and prosecute any unauthorised use of any Amazon EHT [LuxSCS] Intellectual Property.
The aid is thus granted under the contested tax ruling every year that that declaration is accepted by the Luxembourg tax administration.
AEU [LuxOpCo] agrees to promptly inform Amazon EHT [LuxSCS] of any such unauthorised use that comes to the AEU [LuxOpCo]'s attention.
What this means for the present case is that only aid granted before 24 June 2004 constitutes existing aid, since the limitation period laid down by Article 17 of Regulation (EU) 2015/1589 was interrupted on 24 June 2014, the date on which the Commission sent a letter to Luxembourg requesting information on any rulings granted to Amazon.
To facilitate coordination of enforcement activities, AEU [LuxOpCo] shall consult with Amazon EHT [LuxSCS] before undertaking any actions to prevent such unauthorised use of Amazon EHT [LuxSCS] Intellectual Property. (b) AEU [LuxOpCo] may, at its sole expense, institute and conduct suits to protect its rights under this Agreement against infringement any may retain all recoveries from any such suits.“ Glej tudi licenčno pogodbo, točka 2.3 (Maintenance) in točka 9.5 (Compliance, Data Protection).
As explained by Amazon, even though the contested tax ruling was obtained in 2003, LuxOpCo did not start to use the transfer pricing arrangement endorsed therein for the purposes of determining its annual corporate income tax liability in Luxembourg until 2006.
Notranji akt skupine Amazon: licenčna pogodba, točka 3.1.
Consequently, there are no fiscal years before 24 June 2004 in which the ruling was used to assess LuxOpCo's annual taxable profit and the Luxembourg tax administration accepted a tax declaration based on that assessment.
Licenčna pogodba, točka 7 (No Warranties). „Each party provides its materials and services to the other pursuant to this agreement ‚as is‘, ‚with all faults‘ and without warranties of any kind, express, implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, reasonable care, workmanlike effort, results, lack of viruses, [Advisor 3] or completeness, all of which each party expressly disclaims, and each party assumes the entire risk as to the results and performance of those services and the materials.
In any event, the Commission recalls that by letter of 23 December 2004 the Luxembourg tax administration confirmed the continued validity of the transfer pricing arrangement endorsed by the contested tax ruling following a delay in the implementation of the restructuring of Amazon's European operations, for which that ruling was initially requested.
There is no warranty of title or noninfringement of any intellectual property rights or any warranty against interference with either party's or any other entity's enjoyment of information provided to it relating to this agreement. “
All aid granted to LuxOpCo and the Amazon group by way of the contested tax ruling therefore constitutes new aid.
Imenovani „third party materials“.
NO GENERAL PRINCIPLE OF LAW PREVENTS RECOVERY
Družba LuxOpCo je na primer februarja 2011 pridobila celotno lastništvo nad skupino LoveFilm, vključno z intelektualno lastnino te skupine (glej sporočilo skupine Amazon z dne 4. maja 2015).
Article 16(1) of Regulation (EU) 2015/1589 provides that the Commission shall not require recovery of the aid if this would be contrary to a general principle of Union law.
Skupina Amazon se je v okviru združevanja po prevzemu skupine (prevzem Q) odločila, da bo v družbi LuxOpCo centralizirala vse „pravice digitalnih vsebin“ ( „digital content rights“) […].
Luxembourg argues that the principles of legal certainty and legitimate expectations stand in the way of recovery in the present case, first, because the Commission is retroactively applying an allegedly new approach to transfer pricing and, second, because the Code of Conduct Group (Business Taxation) and the OECD Forum on Harmful Tax Practices had assured Luxembourg that its tax ruling practice based on Article 164(3) LIR and the Circular is consistent with the OECD Code of Conduct and the OECD TP Guidelines.
Licenčna pogodba, točka 3.2, določa: „Third Party Materials, From time to time during the Term, AEU [LuxOpCo] may license or otherwise acquire rights to or ownership of third party materials, which AEU [LuxOpCo] may use in connection with the Licensed Purpose (‚Third Party Materials‘).
The principle of legal certainty is a general principle of EU law that predicates the predictability of rules and their legal effects.
If in connection with obtaining a license to Third Party Materials, AEU [LuxOpCo] acquires the right to sublicense such Third Party Materials to Amazon EHT [LuxSCS], then AEU [LuxOpCo] hereby grants to Amazon EHT [LuxSCS] a royalty free and non-exclusive right and license to use such Third Party Materials during the Term in the same manner as and for the same purposes that such Third Party Materials have been licensed to AEU [LuxOpCo].
According to the case law, the principle of legal certainty prevents the Commission from indefinitely delaying the exercise of its powers.
If AEU [LuxOpCo] acquires ownership of any Third Party Materials, then AEU [LuxOpCo] hereby grants Amazon EHT [LuxSCS] a royalty free and non-exclusive tight and license to use such Third Party Materials during the Term to the full extent that AEU [LuxOpCo] can use such Third Party Materials as the owner of the Third Party Material. “
The Court of Justice has also stated that the only grounds on which, in exceptional cases, that principle may be invoked, is when the Commission has manifestly failed to act and has clearly breached its duty of diligence in the exercise of its supervisory powers.
Sporočilo skupine Amazon z dne 18. januarja 2016: „Both LuxOpCo and ASE rely on the Intangibles in operating their businesses.
However, when a measure has been granted without having been notified, the mere fact that there has been a delay by the Commission in ordering recovery does not suffice in itself to render that recovery decision unlawful under the legal certainty principle.
Inventory risk management, pricing, fulfilment, management and third party registration on Amazon's marketplaces, to name a few, are automated to a very large extent and the required technology is licensed from LuxSCS.
In the present case, since the contested tax ruling was never notified to the Commission by Luxembourg, nor otherwise publicly available, the Commission could only have learnt of ts existence when Luxembourg responded to its request for information on 4 August 2014.
As a result of this automation, these functions require limited involvement from LuxOpCo and ASE's employees beyond monitoring and management.“
The principle of legitimate expectations can be invoked by any person in a situation where an EU authority ‘has caused him to entertain expectations which are justified’.
Licenčna pogodba, točka 2.1(a) (Exclusive Intellectual Property License Grant).
Important limitations apply to invoking that principle, however, as decided by the Court of Justice.
Glej opombo 63.
First, the Court has stated that that principle cannot be invoked unless the person invoking it ‘has been given precise assurances by the administration’.
Pogodbe o izvajanju storitev, točka 3.1, Use by Provider.
Second, Member States cannot invoke that principle in cases where they have failed to notify the aid measure to the Commission.
Pogodbe o izvajanju storitev, točka 3.2, Ownership by Company.
Third, the Commission's alleged failure to act is irrelevant when an aid measure has not been notified to it and, consequently, the Commission's silence cannot be interpreted as an implicit authorisation of the measure that may give rise to legitimate expectations.
Licenčna pogodba, točka 4.1, Term.
Consequently, since the Commission never gave precise assurances to Luxembourg that the contested tax ruling does not constitute aid and Luxembourg never notified the contested tax ruling to the Commission, Luxembourg cannot rely on the principle of legitimate expectations.
Licenčna pogodba, točka 4.2, Immediate Termination upon Notice for Change of Control or Substantial Encumbrance.
Luxembourg's subsequent claim that the Commission adopted a novel approach for a finding of State aid to the present case cannot be accepted.
Licenčna pogodba, točka 4.3, Termination After Failure to Cure of Performance.
First, in response to an argument made by a Member State that direct taxation fell under its fiscal autonomy, the Court of Justice explicitly acknowledged, in a judgment of 1974, the application of the State aid rules in the field of direct taxation.
Sporočilo Luksemburga z dne 21. novembra 2014, priloga 4.
Since a tax ruling is no more than an interpretation of the tax rules to a particular situation, upon which a taxpayer may rely to determine its tax burden in a particular Member State, the State aid rules necessarily apply to tax rulings as well, as explicitly acknowledged by the Commission in its 1998 Notice on the application of the State aid rules to measures relating to direct business taxation (‘the 1998 Notice’).
Glej uvodno izjavo 128 za opredelitve izrazov, uporabljenih pri izračunu licenčnine.
Second, the Commission adopted a series of decisions in 2002 to 2004 in which it concluded that several tax schemes in various Member States constituted State aid because they endorsed a method of assessment of taxable income for certain categories of undertaking that departed from a reliable approximation of an arm's length outcome or otherwise benefitted certain multinational group companies under the ordinary rules of corporate taxation.
Po spremembi se za „dobiček iz poslovanja, ustvarjen v EU“, šteje promet, ustvarjen v EU, zmanjšan za stroške blaga, surovin in potrošnega materiala za EU, operativne stroške za EU ter, v skladu z občasnim dogovorom med strankami, nekatere stroške po neto ceni, ki niso vključeni v operativne stroške družbe AEU.
That a method of assessment of taxable income producing an outcome that diverges from the arm's length principle results in the grant of State aid for its beneficiary/-ies was explicitly endorsed by the Court of Justice in a 2006 judgment.
Glej opombo 84.
Luxembourg further submits that it was explicitly confirmed at the Council (ECOFIN) meeting of 27 May 2011 that, in view of the adoption of the Circulars, Luxembourg's tax ruling practice should not be evaluated according to the Code of Conduct Group and that an agreement in a Code of Conduct Group meeting that ‘there [is] no need for the [Luxembourg tax measure on companies engaged in intra-group financing activities] to be assessed against the criteria of the Code of Conduct’ constitutes a precise assurance as to appropriateness of the general tax ruling practice of Luxembourg.
Kot je pojasnjeno v uvodni izjavi 102, je bila evropska struktura skupine Amazon, kot je opisana v zahtevi za vnaprejšnje davčno stališče in potrjena v zadevnem vnaprejšnjem davčnem stališču, vzpostavljena med majem 2006 in junijem 2014.
However, those submissions cannot be accepted as substantiating a claim of either legal certainty or legitimate expectations.
Junija 2014 je bila ta struktura spremenjena.
First, the Code of Conduct and the State aid rules pursue different objectives: while the Code of Conduct aims at tackling harmful tax competition between Member States, the State aid rules seek to address distortions of competition that result from favourable treatment by Member States, also in the form of tax reductions, of certain undertakings.
Kot je pojasnjeno v dopisu skupine Amazon z dne 31. oktobra 2003, str. 4: „Notwithstanding the tax transparency of LuxSCS, it would have been subject to municipal business tax (Article 2 MBTL) on its profits if these profits are derived by a permanent establishment situated in Luxembourg from the carrying out of a ‚commercial activity‘ as defined by Article 14-1 ITL. “
Second, the Code of Conduct is not a legally binding instrument.
Ta dopis in dopis z dne 31. oktobra 2003 sta bila dopolnjena z dodatnimi informacijami o prestrukturiranju, predloženimi v dopisih skupine Amazon, naslovljenih na luksemburško davčno upravo 5. decembra 2004, 14. aprila 2006 in 20. aprila 2006.
It is a forum of discussion for Member States on measures which have, or may have, a significant impact on the location of businesses within the Union.
Luksemburška davčna uprava je v dopisih z dne 23. decembra 2004 in 27. aprila 2006 skupini Amazon potrdila naslednje: „As the changes discussed in your letter of April 14, 2006 and in the letter of April 20, 2006 by Mr. […] from [Advisor 1] will have no effect on the taxation of your group's companies, my letter of November 6, 2003 will remain in force.
While the Code of Conduct group enjoys a certain margin of discretion, the Commission enjoys no discretion in determining whether a tax measure falls to be considered State aid, since that notion is an objective one.
So, I have no objections to the content of the letters of April 14, 2006 and April 20, 2006 respectively.“
Third, the Code of Conduct was adopted by the Council (ECOFIN), not the Commission, and therefore cannot bind the Commission in the exercise of its State aid competence.
Dopis skupine Amazon z dne 23. oktobra 2003, str. 5.
Fourth, the Code of Conduct considered the Circulars on intra-group financing in general, whereas this Decision examines a specific tax ruling granted in favour of a specific company not related to intra-group financing.
Dopis skupine Amazon z dne 23. oktobra 2003, str. 6.
Consequently, an agreement in the Code of Conduct Group meeting can neither bind nor restrict the Commission's actions in exercising its powers which are conferred on it by the Treaty in the field of State aid.
Glej poročilo o transfernih cenah, oddelek 4.1, Overview of Methods.
The same is true for the agreements reached on 6 December 2011 in the OECD Forum, according to which ‘the following 10 regimes did not need to be examined further […] Luxembourg – Advance tax analysis for intra-group financing’.
V dopisu skupine Amazon z dne 31. oktobra 2003 je poleg tega pojasnjeno, da bo „družba LuxSCS ohranila vsa morebitna tveganja, povezana z lastništvom pravic intelektualne lastnine.“
The OECD is not a Union institution, nor is the Union a member of that organisation, and its conclusions, which are non-binding, cannot bind the institutions of the Union.
Dopis skupine Amazon z dne 23. oktobra 2003, str. 3 in 4.
Moreover, far from giving a precise assurance, the OECD Forum refrained from further examining the Luxembourg tax analysis for intra-group financing.
Vodstveni položaji naj bi predstavljali od 8 do 10 ekvivalentov polnega delovnega časa, ustrezajo pa naslednjim funkcijam: generalni direktor za Evropo, nacionalni direktor za Luksemburg, vseevropski direktor za dobavno verigo, vseevropski direktor za poslovno odličnost, vseevropski direktor za poslovni inženiring, direktor za informacijsko tehnologijo, finančni direktor za Evropo.
It is therefore impossible to draw any kind of conclusions or inferences from this statement as regards the application of the State aid rules to the contested tax ruling, which is an individual transfer pricing ruling unrelated to intra-group financing.
Dopis skupine Amazon z dne 23. oktobra 2003, str. 4.
Amazon similarly invokes the principle of legitimate expectations, arguing that the Commission's investigation was based on a novel approach to the State aid rules.
Poročilo o transfernih cenah, str. 14.
The Commission has already explained in Recital 626 why that claim is unfounded.
Poročilo o transfernih cenah, str. 29.
For a claim of legitimate expectations to succeed, the expectation must arise from prior Commission action in the form of precise assurances.
Poročilo o transfernih cenah, str. 20 in 21.
This means that the legitimate expectation must arise from a previous behaviour of the Commission that, for instance, had already adopted a decision on the same or identical aid scheme.
Sporočilo skupine Amazon z dne 28. oktobra 2015: „Meeting with the Case Team“, str. 8.
Amazon did not refer to any such acts of the Commission, but instead claimed that ‘the application of State aid rules to individual tax rulings on transfer pricing has never been subject of any previous statement by the Commission’.
V prvem letu pogodbe 7 milijonov USD in v drugem letu 8 milijonov USD; v: notranji akt skupine Amazon: pogodba med skupino Amazon in [A], str. 155.
The Commission recalls in this regard that State aid is an objective notion, so that even if no decisions existed prior to 2015 that declared individual tax rulings as giving rise to State aid, that does not mean that such rulings cannot give rise to State aid.
Od 7 milijonov USD v drugem letu pogodbe do 35 milijonov USD v petem letu pogodbe; v: notranji akt skupine Amazon: pogodba med skupino Amazon in [A], str. 155.
In any event, the Commission has adopted a number of decisions declaring schemes deviating from the arm's length principle as giving rise to State aid and it has adopted a number of decisions declaring individual tax measures to constitute State aid.
Najprej 5 %, nato 4 % v četrtem letu in naslednjih letih; v: notranji akt skupine Amazon: pogodba med skupino Amazon in [A], str. 157.
Amazon also invokes the principle of equal treatment, arguing that Amazon would be the only undertaking of many subject to the same tax treatment which would have to repay illegal aid.
Poročilo o transfernih cenah, str. 28.
However, the Court has already considered that the fact that other undertakings are granted State aid, even competitors, is irrelevant for determining whether a particular measure constitutes State aid.
Podatkovna zbirka Amadeus je podatkovna zbirka, ki vsebuje finančne informacije o javnih in zasebnih družbah iz vse Evrope.
Since recovery is the logical consequence of the existence of unlawful aid, this must a fortiori apply to the repayment of the unlawful State aid.
Upravlja jo Bureau van Dijk ali BvD, ki zagotavlja informacije o podjetjih in poslovne informacije.
In conclusion, no general principle of law prevents recovery in the present case.
Davčni svetovalec je iskanje omejil na naslednje države: Nemčijo, Avstrijo, Belgijo, Dansko, Španijo, Finsko, Francijo, Grčijo, Italijo, Luksemburg, Norveško, Nizozemsko, Portugalsko, Švedsko in Švico.
METHODOLOGY FOR RECOVERY
Uporabljene so bile naslednje ključne besede: Computational, Design, Marketing, Merchandising, Programming, Promotion, Services, Web Design.
The obligation on a State to abolish unlawful aid regarded by the Commission as being incompatible with the internal market is designed to re-establish the previously existing competitive situation on the market.
Algoriel, Askell, Decade, Seresco SA, Société de Gestion de Terminaux Informatiques, Solutec in Sydelis.
In this context, the Court of Justice has stated that that objective is attained once the recipient has repaid the amounts granted by way of unlawful aid, thus forfeiting the advantage which it has enjoyed over its competitors on the market, and the situation prior to the payment of the aid is restored.
Poročilo o transfernih cenah, priloga V.
Rather, it is sufficient for the Commission's decision to include information enabling the addressee of the decision to work out that amount itself without overmuch difficulty .
Poročilo o transfernih cenah, str. 31.
Union law merely requires recovery of unlawful aid to restore the position to the status quo ante and that repayment be made in accordance with the rules of national law.
Poročilo o transfernih cenah, str. 32.
In relation to unlawful State aid in the form of tax measures, the amount to be recovered should be calculated on the basis of a comparison between the tax actually paid and the amount which should have been paid if the generally applicable rule had been applied.
Zaradi obravnave družbe LuxSCS kot davčno preglednega subjekta v Luksemburgu se licenčnine, ki jih družbi LuxSCS plača družba LuxOpCo, ne štejejo za obdavčljivi dohodek družbe LuxSCS v Luksemburgu, temveč za obdavčljivi dohodek njenih družbenikov v ZDA.