Revisiting the Dutch interest box under the EU state aid rules and the code of conduct: when a "disparity" is selective and harmful

In July 2009, the European Commission decided that the Dutch group interest box measure - a special beneficial tax regime for the taxation of intra-group interest - did not constitute State aid under EU law. This article critically analyses the Commission’s decision and arrives at the opposite conclusion, that is, the measure grants selective advantage to group companies and specifically to multinational groups of companies. In the course of the analysis of the decision, a general analytical framework is proposed for examining fiscal measures suspect of being State aid. The question what options remain for the Member States after the decision to introduce tax measures attractive for multinational enterprises is discussed. Finally, the interest box measure is also examined in the light of the Code of Conduct criteria for harmful tax measures.