 Dan ga ik je tot slot ander van de zijders, het socioprofessor van de Universiteit Ambroek met Sibyl Telkantry aan het zetten van de België-situatie, de Oostje Oostje. In mijn talk today, I will focus on the role of the national judges in the recovery procedure. I will most specifically look at how recovery legislation can help national judges in overcoming certain challenges and difficulties. In fact, I want to take care of the judges today. To do that I will compare the Dutch recovery legislation that was just discussed by my colleague and the Belgian legislation that we had in place. First I will also give some statistics of Belgium stated recovery cases. Then I will briefly summarize the role of the national judges from a new perspective in recovery cases. Then I will explain my case, the excess profit ruling, the Belgian stated case. And then I will look at how for instance the Belgian stated case, the Belgian excess profit ruling stated decision is dealt with in Belgium and how this would be dealt with in the Netherlands. And what legislation is the most appropriate to help national judges to fulfill their role. So first some statistics. As in the Netherlands you can see on the slide that the stated cases are rather limited. Since 2000 we had 13 stated cases and now since 2014 there are still 5 cases pending. One of them is the excess profit ruling decision. The cases are limited but on the other hand the amounts at stake are very high and they have a very invasive effect on the beneficiaries. You see that until 2013, €333 million was considered as stated and the major part of the amount has been recovered in Belgium. You can also see that the amounts are higher than the amounts that have been considered as stated so far in the Netherlands. But then in the new cases the amounts are even higher. You see the excess profit. There we are talking of already about €700. These are the decisions at the new level. When we look at court decisions regarding the stated, you can also see that the court decisions so far of Belgian courts are limited. Since near 2000 I would find 76 court decisions. The tax cases, the tax court decisions in relation to stated are even more limited. There are only 3 cases and these 3 cases impact our decisions of our Belgian constitutional courts where a taxpayer claims that a certain tax or the scope of application of a certain exemption was not in line with the principle of equality or constitutional principle of equality because the tax or the exemption was selective. At the same time, a taxpayer invoked that there was not only an infringement of the constitutional principle of equality but also of the state insurance. That was the argument of the taxpayer. Unfortunately, these cases, the claim was not successful. The constitutional court ruled that there was, in fact, there was no problem. What are the recovery methods that we know in Belgium? Contrary to what is the case now in the Netherlands, we do not have a general recovery legislation. In principle, the ordinary rules apply so this means that ordinary administrative law or ordinary civil law procedures are applicable. The question which procedure is applicable depends on the nature of the measure through which the aid was granted. In addition, our legislator introduced specific ad hoc legislation at two occasions. So after the commission decision, at two occasions, the legislator introduced a specific law to organize the recovery of the state as ordered in the commission decision. The first time was a long time ago, in my well case, concerned exemptions of social security contributions, which were considered as stated and are now more recently being accessed profit-ruling, which is also considered as a state-aid sheen, and so recovery was necessary. The recovery is organized in a specific legislation, and it is this specific legislation that I would like to compare with the ad hoc legislation as is recently introduced in the Netherlands. If we look at these recovery methods, what is the role of the national judges? Well, the role of the national judges in the first place is very challenging. The national judges have to find a balance between on the one hand their national law and on the other hand the EU law. We all know that in principle there is national procedural autonomy, but on the other hand the judge also has to take care of immediate and effective recovery. And so the national court has to leave the national procedural rules that may hinder that effective and immediate recovery. They have to leave it unavailable. For instance, suspension rules or limitation periods. On the other hand, the task of the national judge is also very complex. We know that the commission itself must not determine the individual amounts to be recovered. In general the tax administration will do so, but it is the task of the national judge when there are certain discussions over the amounts to review the calculation of the amounts. And our experience in Belgium is that that is not always easy. For instance in the Maribel case I just mentioned a concerned exemption of social security contributions, but that case concerned more than 2000 enterprises and in order to determine the amount to be recovered one had to look at every quarter how many manual workers were employed by a certain enterprise and how many hours that worker was actually employed and worked in order to be able to compute the exemption that was lawfully granted. So that was a huge work and it's really complex then for a judge to be able to review that calculation. To a very complex task for the judges, but also a very important task because based on decisions of the court of justice if the effect of an immediate recovery is not possible or is not realized as a result of a national court decision then also a state can be sanctioned for failure to implement the commission. So a very important task there also for the national judges. And then finally it is also the role and the task of the national court to take care of the fundamental rights of the beneficiaries for instance legitimate expectations. The beneficiaries count on the national judges, but on the other hand we also know that in state case decisions national judges have to put aside their national principles for instance the national legitimate expectation principle and apply the very strict EU principle of legitimate expectations. I think that for some beneficiaries judges may leave beneficiaries with kind of an awkward feeling and I think also here this requirement may raise certain questions about the legitimacy of even state-aid rules the legitimacy of recovery of state-aid rules and that makes it even more difficult for a judge to make or to take such an invasive recovery. So if we take all these considerations together I think we can say that the national judge is faced with some tensions that he has to solve. On the one hand he has a very important role he has to review the state-aid cases but on the other hand these state-aid cases are very complex and we have seen that national judges only have to deal with a limited number of cases so they don't really have the opportunity to become experts in these matters and so maybe it's difficult for a judge to fulfill this important role. Second, the judge also has to manage the balance between UNO and national law which is not easy and then finally the recovery of state-aid may be very invasive as I mentioned because of the high amounts that are at stake and on the other hand the national court has to base its to grant his decision of EU state-aid rules dat's maybe lack a little bit of legitimacy which is a delicate decision. So what I want to do in the remaining part of my talk is to look at to what extent does the Dutch legislation or to what extent does the Belgian legislation help the national judges to overcome all these challenges en I will use for this comparison a case the excess profit ruling case I'm a Belgian specialist so I'm with the Belgian case. The excess profit ruling was extensively promoted by our Minister of Finance and what was the idea of the excess profit ruling well the idea was that if you had a company in Belgium a part of a multinational group then a part of the profits of the accounting profits of that Belgian company would not have been realized by the Belgian company if that were a standard company. Why? Because part of those profits in fact are generated by group synergies are generated by intangibles so this part of the profit should not have been allocated from a tax perspective, from an island's land perspective to that Belgian company but in fact belongs somewhere to the group so the idea was we are going to exempt and how is this realized? Well, a Belgian law provided a downward profit adjustment equal to that profit generated by group synergies one of the ideas behind this rule was also to transfer activities to Belgium and because in that case part of your profit would remain tax exempt one of the arguments also to introduce this downward profit adjustment was the fact that there may be a risk of double taxation because to the extent that this profit allocated to the Belgian company is generated by group synergies there is always a risk that part of that profit will also be taxed abroad and added to the profits of another company so that was one of the considerations but the law does not provide that it is really required that part of the profit is effectively picked up in another country and the possibility that it might be taxed abroad is sufficient The commission started an investigation in February 2015 and then in 2016 there was the decision that the excess profit rulings consisted or were qualified to an individual stated sheen so really a sheen there were about 66 rulings grantments and in general in 2016 so we had the commission decision the Belgian state tried to obtain a suspension of recovery but this was dismissed In 2015, december 2015 we were aware of the fact that in general the decision of the commission would come so the legislator introduced a specific recovery legislation for the excess profit rulings sheen Meanwhile the Belgian state and also a lot of corporations introduced a claim with the general court but meanwhile I think most of the amounts are recovered so this is the case and what I would like to do now is compare how does the Belgian excess profit ruling recovery legislation works and how does this compare to the Dutch legislation and which one is the better so if we compare both legislations there is one very important similarity the aim of the Belgian legislator and also the aim of the Dutch legislator was to provide a legal basis for recovery based on a case law of the court of justice the commission decision as such cannot be enforced against the beneficioules it's not an enforceable instrument well because we need an individual decision in which for instance the individual amount to be recovered is calculated and this is not the case in the commission decision and in tax matters most of the times this individual decision will be an individual assessment by the tax authorities so I think that it's a very good thing we have a national law a national legal basis for the national tax authorities to take the decision so that's an important similarity there was the same consideration of the Belgian and the Dutch legislator what is an important difference however is that the Dutch legislator has chosen to introduce a general regarding the legislation for all future commission decisions we don't know which decisions will occur but one general legislation ex-ante so before all the commission decisions that may still be in Belgium on the contrary the legislator has not introduced such general legislation he has chosen to introduce specific legislation especially for those commission decisions where there are a lot of beneficiaries involved the Maribel case and now the excess as I will try to show a little bit further in my presentation I think this offers the opportunity the possibility to make tailor made rules en to address specific problems that can occur in these public cases so first I will briefly touch upon two general differences between then I will discuss two more specific differences that relate to this narrow scope of the Belgian public legislation so first a general difference concerns the qualification of the aid to be recovered I understand that in the letterlets in the Dutch recovery legislation the tax aid to be recovered is qualified as a tax in Belgium we had some discussions about the qualification of tax aid to be recovered en er were some considerations the first consideration was that the person recovered state aid the amount to be recovered does not have the nature of the measure of the position aid was given aid recovered has assumed his nature so that was one consideration and then the second consideration was the question if this aid to be recovered is qualified as a tax maybe we can have a problem that is considered as a retroactive tax that is introduced now but in fact concerned quite some years ago and a retroactive tax would be contrary to our principle of legal certainty so in Belgium the amount to be recovered in principle qualifies as a suicamieries amount but then for the application of certain rules it is qualified as a tax for instance it is qualified as a tax in order to make sure that it is considered as a non-detectable tax expense otherwise you would again have benefits the rules concerning the establishment and collection of taxes are also explicitly applicable so here there is a similarity with an alert for recovery of tax aid we also apply the rules the procedure for establishment and selection of taxes also the taxes the amount to be recovered is assimilated to a tax the application of international instruments on mutual assistance for recovery and also for the legal remedies so if you have an assessment of the tax authorities in order for the tax to be recovered then the normal legal remedies administrative procedure will be available there was one discussion that we also discussed during the previous sessions of this project which judge is competent we had here four tax judges four Belgian tax judges and the fact that the amount to be recovered is in principle not a tax amount raised the question well are we competent then because it's not really a tax and there I think our analysis is that indeed the tax judges are competent because it concerns the calculation of a tax so the application of the tax law and most discussions will also arise after the assessment of the tax authorities when the assessment of the tax authorities is challenged by the beneficiary it will concern this tax assessment and so that brings us to the tax judges a second general difference concerns the situation when the commission decision is successfully challenged I understand that in the Netherlands this situation is not addressed in the recovery legislation in our excess profits ruling legislation this situation is dealt with so first it is clarified that repayments to the beneficiary can only occur when there is a final decision either a decision of the general court without possibility anymore for appeal or a decision of the court of justice it is also clarified in which procedure applied so it's our really ex officio it's an existing procedure and the tax authorities have to repay the amount of 12 months and then a specific problem is also addressed because if we would not have these specific rules then the normal moratorium interests would be due to the beneficiary but our moratorium interests are much higher than the EU interests and so the beneficiary would receive too much back and so here the moratorium interests is to be then just two more specific examples of how specific legislation makes it possible to make a tailor made rules because if you introduce general legislation as is the case in Netherlands then there may be certain problems there are certain problems that you may not think of on beforehand and these problems have been addressed in this specific legislation the first one is the beneficiary in the commission decision the commission has mentioned that the beneficiary of the excess profit rulings are not only the Belgian companies but also all the companies that are part of the multinational of the multinational group and then there was also a list with the Belgian companies that received a benefit based on this ruling based on misinformation for a national judge it may be difficult to know which companies are agents here so the Belgian first explicitly clarified that not only the companies on the list are are agents but also other companies and second it clarified that the additional assessment is of course in the hands of the Belgian company but then it is also enforceable against all other members of the group and this situation is not really addressed in the English legislation the second one or the second one is the amount to be recovered in the commission decision the amount to be recovered seems very straightforward the amount to be recovered is the tax benefit received increased by the interest calculated as from the date that you received the benefit but this is not so easy because in Belgium for instance the date when you receive the benefit is not clear in Belgium take for instance the year 2013 application of the excess profit ruling in 2013 for only profits of 2013 in Belgium a company has to make every quarter every quarter you have to estimate what is my tax view for this quarter and you have to pay that estimated tax view in 2013 in 2014 you have to file your tax return and then the year thereafter you will receive your final assessment and when was the benefit received when you had to pay your prepayments when you filed your tax return or when you received the final assessment if a judge has to interpret the commission decision there is no further guidance so here the advantage of the law is that the Belgian legislator explicitly provided that the amount that the benefit is considered to be received on the date of the fourth prepayment of quarter income tax so in 2013 in my example another I will not discuss all these difficulties but you see on the slide that there were a lot of concrete difficulties and technical problems with the calculation of the amount to be recovered I will give a second and last example here the application of other tax returns in practice there were a lot of companies that were in fact entitled to other tax deductions for instance the patent income deduction the national interest deduction but at that time they did not claim those deductions into their tax return because they weren't paying any tax based on the excess profit ruling so there was no need to claim all the other deductions so they did not fulfill the formalities that you need to comply in order to get deductions and the question was can we apply those deductions now to calculate the amount to be recovered because the formalities have not been complied with so there the legislator clarified yes you can do so provided that you can prove now that you meet at that time you complied with all the other conditions to get what is the conclusion of my short analysis first I think that specific legislation specific ad hoc legislation after the commission decision can help the judge to fulfill his important role and can help the judge to deal with the complexity and to deal with the complexity of state nature because in the specific legislation the legislator can give guidance to the judge how to compute that amount to be recovered second I think in a specific legislation the legislator can also give more guidance to the judge in respect of how the balance between conflicting EU law and national law should be addressed for instance in the excess profit during legislation the legislator also clarified that to the extent that the excess profit is picked up in another country and is effectively taxed abroad then this amount should not be considered as slated anymore and so there should not be recovery that is something that was not very clear in the commission decision and so here the legislator helps the administration but also the national judge to do that finally and this conclusion is maybe a little more subtle I think that specific recovery legislation may also help to contribute to the legitimacy of EU state officials and why well in the first of course there is a legal basis a national legal basis so the judge does not have to rely only on EU law but can also rely on what his national legislator decides but second I think that specific recovery legislation also offers the opportunity for introspection what do I mean when you have specific recovery legislation on a specific state that has to be debated in parliament and there the financial influence is very high and I think that offers the opportunity to question oneselfs and what have we done we have introduced this and now we have to recover it was it really our intention to introduce a selective tax incentive where all members of parliament fully aware of the fact that selective measure was introduced did we really let pressure groups push this selective measure through parliament how could that happen what happened so I think that all these considerations may also help a national judge to find more legitimacy in the EU state and in the recovery and also help the judge to take his very invasive decision