Is Fiat’s Tank Half-Full or Half Empty? The General Court’s Decision in Luxembourg v. Commission (T-755/15)

This article examines the recent decision by the General Court on the case of State aid concerning Fiat (T-755/15). Although the authors agree with the ultimate outcome of the decision, they believe that the General Court erred in its reasoning. First, it should not have endorsed that there are transfer pricing rules inherent in article 107 of the TFEU and outside of the domestic reference framework. Second, the General Court was wrong in accepting the accounting equity as an appropriate profit level indicator when return on equity is applied to an entity that performs financing activities. Finally, the General Court should have recognized the principle relevance of the neutralization argument (i.e. saving taxes in one jurisdiction does not necessarily entail an advantage on the group level).