AG opinion on the compatibility of the Belgian excess profit ruling scheme with EU State Aid rules
On April 29, 2026, Advocate General (AG) Juliane Kokott of the Court of Justice of the European Union (CJEU) delivered an opinion on a series of appeals concerning the Belgian ‘excess profit’ tax ruling practice1. The cases addressed whether the practice, which has been classified by the CJEU as a ‘scheme’, is compatible with EU State aid rules.
Belgian tax legislation provided for the possibility for a Belgian company that is a member of a multinational group to make unilateral downward adjustments to its taxable base for “excess profits”. A ruling had to be requested prior to making such a downward adjustment2. In February 2015, the European Commission (the Commission or the EC) launched an investigation into alleged State aid granted by way of this ruling practice. On January 11, 2016, the Commission concluded that the excess profit tax ruling system was a tax scheme which constituted State aid. The Commission also noted that Belgium is required to recover the aid granted from the beneficiaries of the tax rulings.
Several beneficiaries of the disputed system appealed the Commission’s decision. The General Court of the CJEU joined cases T-131/16, brought by the Belgian State, and T-263/16, brought by one of the beneficiaries of the excess profit rulings. On February 14, 2019, the General Court of the CJEU annulled the Commission’s decision in its entirety, holding that the Commission had failed to establish the existence of a ‘scheme’ – i.e., the Commission was not allowed to challenge the tax rulings in question “as a package”. The EC subsequently appealed that judgment to the CJEU and, in parallel, opened 39 separate in-depth investigations to assess whether the individual ‘excess profit rulings’ granted by Belgium between 2005 and 2014 breached EU State aid rules.
On September 16, 2021, the CJEU held that the Commission had been correct in classifying the Belgian tax rulings practice as a ‘scheme’ and therefore set aside the General Court’s judgment. However, the CJEU did not rule on the compatibility of the scheme with EU law. Instead, it held that, given the state of the proceedings, it was for the General Court to determine whether the excess profit rulings constituted unlawful State aid and, if so, whether recovery of the aid infringed the principles of legality and protection of legitimate expectations. The case was therefore referred back to the General Court.
On September 20, 2023, the General Court ruled that the Commission had correctly concluded that the Belgian tax rulings constituted unlawful State aid. The General Court also dismissed 29 separate appeals brought by the beneficiaries of the excess profit rulings against the EC’s State aid decision – see Euro Tax Flash Issue 523. Following that judgment, several beneficiaries appealed the General Court’s decision before the CJEU.
AG Kokott started the analysis by stating that the key issue of the case was the extent to which the EC and EU Courts must defer to a Member State’s interpretation of its domestic tax law when identifying the ‘reference framework’3 for assessing selectivity under State aid rules, particularly where that interpretation is inconsistent with the wording of the law.
The AG then addressed the first ground of appeal, in which the plaintiffs claimed that the General Court had failed to take into account the established Belgian administrative practice for interpreting Article 185(2)(b) of the Belgian Income Tax Code and had instead relied on its own interpretation of the Belgian law. In this regard, the AG recalled the CJEU’s settled case-law based on which, when determining the reference framework, the Commission and the EU Courts are, in principle, bound by the Member State’s own configuration and interpretation of its national tax law. The AG recalled that, however, such discretion is exceeded where the tax law is designed in an inconsistent manner or where national rules are manifestly applied in an inconsistent or unlawful manner. The AG then cited the Court’s case-law based on which the judicial standard of review to be applied is limited to a mere plausibility check.
Applying this standard, the AG found that the General Court had correctly upheld the reference framework identified by the EC, and that the derogation from that framework lay not in Article 185(2)(b) itself, but in its manifestly unlawful application. In the AG’s view, Article 185(2)(b) was intended to codify the arm’s length principle in the context of specific cross‑border transactions between associated enterprises. The AG noted that, however, the Belgian authorities applied this provision without requiring any identifiable cross‑border transaction and instead authorized a general downward adjustment of overall profits to a hypothetical benchmark. This approach, according to the AG, amounted to an interpretation contrary to both the wording and the purpose of Article 185(2)(b) and therefore could not be regarded as part of the relevant reference framework.
The AG further rejected the plea that multinational companies were not in a comparable situation to stand-alone entities. Whilst acknowledging that cross-border groups may face risks such as double taxation, the AG noted that the Belgian scheme did not actually address such risks, as it was not contingent on the existence of cross-borders dealings. In the AG’s view, by allowing only multinational group entities to benefit from reduced taxation on a portion of their profits, the regime resulted in unequal treatment of companies in comparable legal and factual situations. Consequently, the AG found that the measure conferred a selective advantage.
Regarding the recovery of the aid, the AG concluded that beneficiaries could not rely on the principle of legitimate expectations, given that the tax rulings were based on an interpretation that was manifestly inconsistent with the law. Therefore, in the AG’s view, the recovery of the unlawful aid was justified. However, in specific cases involving certain corporate groups, the AG suggested that recovery should be limited to the entities that directly benefited from the scheme, rather than extending to the broader group.
In light of these considerations, the AG proposed that the CJEU dismiss the appeals and confirm that the Belgian excess profit ruling practice constitutes unlawful State aid under EU law.