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Le Luxembourg commente la décision de la Commission dans le dossier Amazon

Publié le mercredi 04 octobre 2017

Le Luxembourg a pris connaissance de la décision de la Commission dans le dossier Amazon. Il l'analysera avec la diligence requise et réserve tous ses droits.

 

La décision de la Commission se réfère à une époque remontant à 2006. Entretemps, les règles internationales et luxembourgeoises applicables en la matière ont substantiellement évolué. Alors qu’Amazon a été imposée en conformité avec les règles fiscales en vigueur à l’époque des faits, le Luxembourg estime qu'il n'a pas fait bénéficier la société d’une aide d'État incompatible avec le marché intérieur au sens de l'article 107(1) du Traité sur le Fonctionnement de l'Union européenne.

 

Le Luxembourg souligne qu’il a collaboré pleinement avec la Commission tout au long de son enquête et qu’il est fermement engagé en faveur de la transparence en matière fiscale et de la lutte contre l’évasion fiscale. Ceci inclut sa pleine adhésion au projet BEPS de l’OCDE et du G20, qui vient moderniser la fiscalité internationale et créer un « level playing field » mondial.

 

English translation

Luxembourg comments on the Commission’s decision in the Amazon case (04.10.2017)

 

Luxembourg has taken note of the decision by the European Commission in the Amazon case. Luxembourg will use appropriate due diligence to analyse the decision and reserves all its rights.

 

The decision of the Commission refers to a period going back to 2006. Over time, both the international and the Luxembourg legal frameworks have substantially evolved. As Amazon has been taxed in accordance with the tax rules applicable at the relevant time, Luxembourg considers that the company has not been granted incompatible State aid, as foreseen by article 107(1) of the Treaty on the Functioning of the European Union.

 

Luxembourg has been fully cooperating with the Commission in its investigation and is strongly committed to tax transparency and the fight against harmful tax avoidance. Luxembourg fully adheres to the OECD/G20 BEPS project, which modernises international tax rules and creates a global level playing field.

 

 

 

 

 

Additional background information:

 

- What is the main issue ?

The main issue is relating to transfer pricing rules. The Commission believes that the level of the royalty payments between Amazon group companies was inflated and did not reflect economic reality. On this basis, the Commission concluded that Amazon was granted a selective economic advantage. Luxembourg does not agree, as Amazon has been taxed in accordance with the tax rules applicable at the relevant time. However, it has to be noted that over time, both the international and the Luxembourg legal frameworks have substantially evolved.

 

- The timeframe :

Luxembourg will have a time limit for lodging an appeal of 2 months +10 days as of the date of the notification.

 

- The amount :

The Commission has indicated that the amount would be around 250 million over 8 years (i.e. about 31 million per year over that period). Commission Vestager has underlined that this is not a penalty, but represents the amount of additional tax that Amazon should have paid according to the Commission.

We do not comment on the amount. The amount is only a mechanical result of the methodology applied. As indicated in our statement, we will now take the necessary time to examine the decision in all of its aspects, including the methodology used by the Commission.

 

- Is this decision related to the earlier Fiat case ?

It is too early to say if the reasoning of the Commission is the same or comparable in both cases. We would have preferred that the Commission would have waited for the Court to settle the matter in the Fiat case, in order to avoid further legal uncertainty for companies operating in the EU

 

- Is the decision putting into question the whole tax system ?

No. In fact, Commissioner Vestager has underlined during her press conference that the decision does not question Luxembourg’s tax system as such. Each case has to be analysed individually. She has also reaffirmed that tax rulings are a useful and legitimate tool to offer legal certainty to tax payers.

It also has to be noted that tax rules have significantly evolved over the last years, and that Luxembourg has fully embraced this movement.

 

- Potential interference with the "digital tax" initiative put forward by France:

Those two issues are very different in nature :

The objective of the digital tax initiative is to make sure that companies pay a fair amount of tax in all the countries in which they are creating value. Luxembourg supports that objective and agrees that current tax rules are in some cases not appropriate or sufficient to encompass new business models, especially with regard to the digital economy.

The objective of State Aid rules is to remedy competitive distortions created by public authorities between companies operating within one country. The Commission considers that the 2003 ruling allowed Amazon to pay less taxes compared to other Luxembourg companies.

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