On 14 February 2019, the General Court of the European Union (GCEU) annulled the decision of the European Commission (Commission) on the Belgian excess profit exemption system (SA.37667) in its entirety on the ground that the Commission erroneously categorized the system as an “aid scheme” (T‑131/16 and T‑263/16).
Since June 2013, the Commission has been investigating the tax practices of Member States. In the context of this investigation, on 11 January 2016, the Commission found that the so-called Belgian excess profit exemption system constituted an aid scheme that is incompatible with the internal market and that it had been implemented in breach of Article 108(3) of the Treaty on the Functioning of the European Union (TFEU). By the same decision, the Commission ordered that the Kingdom of Belgium recover the aid from the beneficiaries.
The excess profit exemption system allows Belgian entities of multinational companies to reduce their tax base in Belgium by deducting from their actually recorded profit so-called “excess profit”. That excess profit is determined by estimating the hypothetical average profit that a standalone company carrying out comparable activities could be expected to make in comparable circumstances and subtracting that amount from the profit actually recorded by the Belgian group entity concerned (the two-step methodology). To benefit from the excess profit system, multinational groups were required to obtain advance rulings from the Ruling Commission in respect of new situations (substantial investments and/or the creation of employment and/or the relocation of activities to Belgium) (the new-situation requirement).
The Kingdom of Belgium and Magnetrol International (one of the 55 beneficiaries listed in Annex to the decision) brought appeals against the decision.