Le decisioni sui tax rulings al vaglio della CGUE: un nuovo capitolo sul controllo degli aiuti di Stato, un passo in avanti verso l'Unione fiscale?

Certain tax jurisdictions enable taxpayers to request binding decisions, known as "tax rulings", as to how tax provisions, notably those on transfer pricing, will be applied to a particular case. However, according to the European Commission, several EU Member States have employed tax rulings to grant preferential fiscal treatments to select multinational groups, such as Amazon, Apple, FIAT, and Starbucks. Following an account of the rationale of tax rulings and of their "alternative use" as means of unfair tax competition, this article provides an analysis of those measures on the basis of the constituent elements of the notion of State aid (advantage, selectivity, imputability to the State, use of State resources, effects on trade, and distortion of competition). Regard is then had to the unique challenges posed by the recovery of the alleged aids granted via the contested tax rulings as well as to the strategies proposed to stop the "alternative use" of this instrument by Member States. Finally, this article outlines the implications that the prospective CJEU rulings in this particular area of fiscal aids may have on the exercise of national competences in the field of direct taxation, on the international cooperation against aggressive tax planning, and on the progress towards a fiscal union.