Is the Commission’s Arm’s Length Principle Compatible with the Principle of Legal Certainty?

Abstract: The European Commission’s Decisions addressing tax rulings which came into the public domain in November 2014 as constituting State Aid (contrary to Article 107 TFUE) after Lux-Leaks have generated some discussion. Of paramount interest in this thesis is the Commission’s declaration in the Belgium Excess Profits, Fiat and Starbucks Decisions that the European Union has its own ALP (hereinafter called EC-ALP). In the quest to determine the compatibility of this statement with the principle of legal certainty and legitimate expectations, a key finding from case law is that the CJEU will usually balance the private interest of Member States and the public interest of the EC to determine which one overrides the other and invariably whether a breach has been occasioned. It is recommended that though it constitutes an advancement of European Union fiscal State Aid law for the Commission to have its own standard of assessment which is reliable, it may be better to consider refining the OECD-ALP. Should the EC seek to apply the EU-ALP, there must be present a cross-border situation as well as a comparable situation in the State Aid cases to which it seeks to apply the standard.