Transfer pricing adjustments derived from state aid cases - Are corresponding adjustments mandatory for EU Member States?

Sammanfattning

When an EU MS executes a state aid recovery decision, specifically those cases regarding Advance Pricing Agreements (APAs), an economic double taxation issue and a potential TP dispute may arise, which could be generated by the need for the application of a corresponding adjustment. In any case, each jurisdiction has the discretion to determine if the application of a corresponding adjustment should be made. For these purposes, Dispute Resolution Mechanisms (DRM) could be used; however, not all of them ensure that an agreement would be reached between states, only the arbitration procedure. On this basis, this research explores the possibility of a mandatory corresponding adjustment between EU MS, considering: i) the peculiarities of the state aid cases regarding APAs, mainly the EU ALP as an argument put forward by the EU Commission ii) the principle of sincere cooperation established in Article 43 TEU, and iii) the outcome of the Achema chase. The above is specifically analyzed in the arbitration procedure since it is the only DRM that may ensure a final decision and perhaps a mandatory corresponding adjustment between EU MS.