CJEU - Recent Developments in Direct Taxation 2021

S. 1321. Introduction

On 14 July 2021, the General Court of the EU (“GCEU”) delivered its judgment in Nike European Operations Netherlands BV and Converse Netherlands BV v European Commission (T-648/19). This judgment is the outcome of an application under Art. 263 TFEU by two Dutch subsidiaries of the Nike group for annulment of the European Commission (“EC”) Decision of 10 January 2019 (the contested decision) that initiated the formal investigation procedure laid down in Art. 108(2) TFEU in respect of possible State aid granted by the Netherlands in favour of Nike. In the contested decision, the EC provisionally assessed that the Netherlands granted State aid by means of advance pricing agreements (“APAs”) concluded by the Dutch tax authorities with Nike European Operations Netherlands BV (“NEON BV”) in 2006, 2010 and 2015, and with Converse Netherlands BV (CN BV) in 2010 and 2015 (further discussed in section II below).

With these proceedings for annulment of the contested decision, the State aid procedure concerning the Nike group could have been stopped in its tracks before the adoption of a final decision by the EC. To support their claim for annulment of the contested decision, NEO...