The Burden and Standard of Proof in the Tax Ruling Cases: A Practical Limit to the EU’s Arm’s Length Principle?

The Commission’s reasoning in the tax ruling Decisions relies to a large extent on the existence and application of the EU arm’s length principle (ALP).
The EU ALP is used as a tool to determine the existence of an advantage.
As such, it is for the Commission to prove, to the requisite legal standard, that the EU ALP has been misapplied and thus confers an advantage.
However, the Commission’s obligation, as evidenced in the Starbucks and Apple judgments, and the underlying logic of the ALP as a tool, can prove particularly difficult to discharge, and can thus provide a practical limitation to the application of the EU ALP.