Germany and the EC

There is a popular theory that the EU is run by Germany and/or France.

Possibly the European Commission is dominated by a coalition of individuals having disproportionately German or French nationality. However, the idea that the EU state is controlled by a subgroup of nations seems outdated.

In 2017, Germany's Ministry of Finance published a highly critical review of the EC's approach to state aid. The publication pleads for restraint in applying the state aid rules to taxation, and talks about a need to respect legitimate expectations.

At one point the authors refer to a "mutual understanding among member states [not to] distort trade". The message seems to be: state aid legislation was just a means for us to agree to respect the ideal of the single market. We made it up, so we shouldn't have to suffer from it — at points where it doesn't match our objectives.

The notion that the EU is still just a civilised club of countries, which can agree to restrain the state aid law juggernaut, seems appealing but overly sanguine.

The EU apparatus has moved well past the stage of acting simply as supervisory authority. It is now a fully fledged state in its own right, with its own agenda, and the power to order individual countries to change their behaviour. It is probably beyond control by any subgroup of nations, let alone any one nation.

Edited extract from 'legal opportunism and the collusion of powers'

The weak case against Apple/Ireland

The final part of EC v Apple is on the website:

‘legal opportunism and the collusion of powers’

Tax rulings and the EU

The fact that transfer pricing is more of an art than a science generates a good deal of uncertainty for multinational corporate groups with regard to their future tax liabilities. A group may decide on a transfer pricing methodology which it considers reasonable, and which its tax advisers agree is acceptable. But the risk remains that a national tax authority will disallow the methodology, possibly years after the event.

One way for a group to reduce uncertainty is to try to obtain a "tax ruling". This is a written clarification, issued by a tax authority to a taxpayer, about how tax law will be interpreted in a particular situation. Such rulings often last for a number of years, protecting taxpayers from the risk that an authority will unexpectedly change its interpretation.

Tax rulings are used in areas such as transfer pricing where there is uncertainty about how authorities will apply taxation provisions. They facilitate businesses' efforts to engage in long-term planning, and so tend to promote economic efficiency.

According to the European Commission, tax rulings could be used to provide covert subsidies to businesses, by providing abnormally favourable interpretations of tax law. However, even if in principle tax rulings fall under the remit of state aid law, there are obvious reasons why the Commission should stay clear of this area. State aid legislation is already at odds with the rule of law:
• it violates legitimate expectations by allowing one government authority to overrule the prior commitments of another government authority, to the detriment of individuals; and
• it requires the overruling to have retrospective effect.

To extend application of this to areas where there is already uncertainty about interpretation of the law is to compound existing wrongs. Whenever a tax ruling is issued, there would be the possibility that the Commission subsequently argues in favour of a different interpretation of the law, and demands retrospective adjustment of tax liabilities. Apart from violating the rule of law, this destroys the purpose of rulings which is to reduce uncertainty.

'EC v Apple: collusion of powers' will be published on the website on 29 October.

Legal opportunism

"Creative accounting" is the exploitation of loopholes in accountancy rules to achieve objectives that deviate significantly from acceptable practice.

There is an analogous type of behaviour in matters of law, sometimes called legal opportunism. This involves exploiting areas where the law is vague or ambiguous, or where it has unintentionally left gaps. Imperfections in the law are used to facilitate actions that were not intended to be sanctioned.

It is not only private individuals and corporations who can indulge in legal opportunism. Government may in theory do so, by applying the law in unexpected ways. For example, a national government may occasionally resuscitate an ancient statute not used for centuries, or apply a loosely worded law in an innovative way to target some unenvisaged menace.

By and large, however, Western governments do not engage in this kind of action. One reason is that, since they have the power to create statute, they do not need to resort to opportunism. There is always the risk that a senior court may rule an opportunistic application of a law to be invalid. A new law does not carry that risk.

Another reason is that Western states generally try to maintain a reputation for neutrality vis-à-vis the law. A government with a cavalier attitude to the law as it stands tends to be one that is not held in high regard by world opinion.

For purposes of illustration, take the case of a corporate merger being considered by a national competition authority. The authority typically invites interested parties to submit their comments on the case. In reaching its conclusions, the authority is likely to make an effort to interpret prevailing laws and principles impartially — or at least to be seen to do so.

On the other hand, parties who submit opinions about the merger, whether for or against, are not expected to be neutral. Their arguments may involve mainstream economic analysis, but if the approach is slanted in the interests of one side or the other, no one is going to be very surprised, or necessarily think less of them.

By contrast, a government body that gets openly creative or partisan in its interpretation of the law, in order to further its own agenda, loses its claim to neutrality and ceases to be trustworthy.

The above is an extract from the forthcoming article 'EC v Apple' (part 3), scheduled for publication in October.

Do courts act as a restraint on government excess?

There is always a risk with government that it will attempt to exceed its legitimate powers. However, in jurisdictions where the state structure includes an independent judiciary, such attempts can in theory be held in check by the courts.

The notion that the state should be modelled so as to incorporate sources of internal opposition — often referred to as "separation of powers" — is a relatively modern idea. It depends on taking a sophisticated view about what government should be: not just a device for achieving what is desirable, but one with built-in restraints which on the face of it make its job more difficult.

The courts acting as a check on government requires the presence of a legal system that is autonomous enough, and self-confident enough, to be capable of critically comparing what the government tries to do with what the rule of law demands.

Notional autonomy may be a necessary condition for the role of constraint on government but is probably not a sufficient one. Opposing the government means regarding something other than government as your master; adherence to abstract legal principles, for example. If your primary commitment is to an agenda which happens to be the same as that of the government, you are likely to have little motive for resisting the government when it tries to bend the rules.

The legal system of the EU, including the European Court of Justice, was created from scratch along with the corresponding governmental entity (the forerunner of the European Commission). The whole structure was aimed at achieving a particular objective, namely European integration. A system of this kind is likely to be compromised from the outset with regard to judicial independence. The unspoken purpose of the legal apparatus will be to assist in moving towards the objective, not merely to enforce the prevailing set of rules.

Not surprisingly therefore, there is a question mark over whether the European Court of Justice is genuinely independent, or adequately fulfils the separation-of-powers function.

The above is an extract from the forthcoming article 'EC v Apple' (part 3), scheduled for publication in October.

Transfer Pricing for beginners

Transfer pricing is an issue that arises for multinationals, i.e. corporate groups with a presence in more than one tax jurisdiction. Total group profits have to be allocated among the individual companies, and this is achieved by the group setting notional prices for goods or services transferred from one group company to another.

Say a company makes motor cars in country A and then sells them via its subsidiary in country B. The profit which the B‑company reports for its selling operation will depend on the amount charged by the group per car transferred to it. The lower this transfer price, the more of the overall profit will be allocated to the B‑company. (See figure below for an example.)

Some groups may try to bias profit allocation towards countries with a lower tax rate by adjusting the transfer price. If country B has a higher tax rate than A, it is in the group's interests to minimise profits in B by setting a relatively high transfer price per car.

Governments are of course aware of this ruse. B's tax authority is likely to reject the company's calculation of profit if it considers the transfer price unreasonably high. Conversely, country A may object if it considers the price to be artificially low, so that too little of the profit is taxed in A. Disagreement about whether transfer prices are reasonable can result in long-drawn-out disputes.

The principle which guides authorities' decisions about whether a transfer price is reasonable is the arm's length rule. This states that transfer prices should approximate to what would happen in transactions between unconnected parties. Unfortunately, the interpretation of this is often anything but straightforward. There may be little or no market data to help answer the hypothetical question: what transfer price would be set if the two divisions were independent?

In the case of relatively homogeneous industries like motor cars it may be possible to look at mark-ups on cost charged by rival manufacturers to independent distributors, take an average, and adjust for any special factors. Alternatively one can look at the profit margins of independent distributors, and argue that the transfer price should result in a similar level of profit margin for distribution companies within a group. These are some rough and ready methods used in simple cases.



At the other end of the spectrum, if what is being transferred within the group is the use of intellectual property ("IP") — say from a technology company to one of its subsidiaries — there may be little or no basis for calculating an arm's length price.

A method often used in market-based transactions involving IP is to charge the IP user a percentage of the revenue he obtains from selling products that make use of the IP; in other words, a royalty. This suggests that the IP holder within a group should charge a royalty to other group companies. But royalty rates used in market transactions range from less than 1 percent to more than 20 percent, so this does not necessarily get one very far.

The above is an extract from the forthcoming article 'EC v Apple (part 3)' which is scheduled for publication in October.

LEGO and sex

I've been monitoring the LEGO cards that come free with Sainsbury deliveries. They're funny! But there's something curious about the gender division of the characters.



There seems to be some kind of pattern here. I haven't quite figured it out — but I'm working on it!

coming soon

 
● New article is in progress.

Interesting times

An interesting phenomenon of recent times is how a significant number of politicians, ostensibly committed to the notion of democracy, demonstrate their commitment to another set of values that overrides their support for majority voting.

Thus we witness, for example, a White House member of staff boasting anonymously in the New York Times* about his (or her) efforts to subvert US President Trump's policies.

The writer is vague about what is so objectionable about the policies that it justifies such behaviour, though he tries to paint a picture of a President who is erratic and deluded. The writer summarises his complaint in terms of Trump's alleged "amorality", by which he apparently means that the President "is not moored to any discernible first principles that guide his decision making". I can see why someone might dislike lack of commitment to principles in a politician, but it is hard to understand why it should be grounds for subversion.

A Republican commentator has expressed disapproval** of the article, arguing that the writer's behaviour will only make the President "more defiant, more reckless, more anti-constitutional, and more dangerous". The commentator recommends that the President's aides should rather resign, or work towards impeachment.

The commentator might have suggested that the writer, and like-minded colleagues, should attempt to overcome their antipathy and comply with the President's wishes as far as possible, on the basis that Americans voted in a way that implies they would like them so to comply. However, the commentator does not do so.

This revealed weighting among elected politicians and commentators between (a) the results of a vote, and (b) their own personal preferences is surely one of the most significant contemporary issues in political affairs, and worthy of attention.

Exercise for the academically inclined
1. See how many recent scholarly articles you can find on the phenomenon of Western politicians opposing the results of majority voting, in which the authors regard it as something that needs explaining.
2. Contrast the number you get in part 1 (which may well be zero) with the number of articles which ask how it came about that voters recently made 'bad' decisions and which suggest remedies for preventing it from happening again.

* 'I am part of the resistance inside the Trump administration', anonymous op-ed, New York Times, 5 September 2018
** David Frum, 'This is a constitutional crisis', The Atlantic, 5 September 2018

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● The third and final part of EC v Apple should be on the website later this month.

Bond: time for a change

I like the idea of Idris Elba (star of BBC series Luther) as James Bond, a role for which he is reputedly being considered. The Bond 'franchise' could do with a 'reboot'.

Daniel Craig makes a complex and intense Bond, which is interesting to watch. But the character he plays is not a person one would eagerly invite to a dinner party.

The Bond films have moved well away from the spirit of Ian Fleming's novels. A return to traditional values would be refreshing. Suave and polite, charming and witty, a touch sadistic perhaps — but not overly burdened by demons.

With a black actor, the film makers might feel less obligated to strike a gritty tone, and allow some glamour to creep back. If that is too out of sync with contemporary values, why not set it in a parallel universe. Or the Sixties.

Unlike Bond-world, Aston Martin has embraced modernity without losing its original ethos. An Aston Martin featured in Fleming's 1959 novel Goldfinger, and the cars have appeared in many of the Bond films. The company is set for a flotation on the London Stock Exchange later this year.

• Picture of Idris Elba is from the cover of GQ Magazine October 2013.

Snowflakes

I note it has become fashionable among left-wing columnists to refer snidely to free speech snowflakes. "You think that debate on important topics should not be circumscribed by speech laws? Aww, diddums."

What next — political prisoner snowflakes? "You think that people should not be imprisoned for their beliefs? Aww, diddums."

The cultural elite and the "upper middle class"

Has it become acceptable yet, in polite circles, to criticise the il-liberal elite?

(Attacking the elite may smack of "populism". Populism is, at the moment, widely regarded as bad — though why it's supposed to be bad is rarely elucidated.)

Judging by Radio 4 presenter Justin Webb's article in yesterday's Times, it may be okay, provided you can demonstrate your egalitarian credentials.

Webb talks of polarisation between America's cultural elite, and the many ordinary Americans who do not partake of the beliefs of political correctness, e.g. self-righteous indignation at white people or men.

However, instead of using the description "politically correct cultural elite" — which might sound critical of moderately-paid but highly-ideologised groups such as teachers, academics and government employees — Webb labels his targets as the "upper middle class".

"Who will challenge the American upper middle classes?" he asks. "Who will take away their tax breaks?"

Inviting resentment of a class because it is said to possess privileges it doesn't deserve? Doesn't seem that different from what the subjects of Webb's critique do.

The Power of Life or Death - 2

It is undoubtedly the case that medical professionals are at times overly interventionist, in the sense that drastic life-saving measures are imposed on some clients who would prefer not to have such measures applied. Certainly this phenomenon is part of what fuels the ‘right to die’ movement. Yet because the autonomy issue is evaded, the debate has a tendency to turn on the question of whether treatment is ‘appropriate’ rather than on whether it is not wanted by the client.

One of the results of this has been the development of a view according to which life-prolonging measures may well be ‘inappropriate’ in certain circumstances and therefore may — indeed should — be withheld. This is a consideration which operates to some extent independently of the wishes of the client.

Thus, ironically, arguments about the right to die have so far not resulted in any facilitation of suicide for the terminally ill, but have instead promoted a tendency to deny treatment to those who might wish to prolong their life however poor its apparent ‘quality’.

from The Power of Life or Death, Foreword by Thomas Szasz

Available from Oxford Forum via Amazon UK or Amazon USA.

Google: hyper-neophilic

An interesting thing happened about a year ago. I remember the day clearly, because it was the one day Google did not  fiddle with the presentational frills of one of their products ...

I am grateful to be able to use Alphabet’s suite of online office products for free — Chrome, Docs, and the rest. And I know change is supposed to be good, healthy, empowering etc.

But for the sake of the brains of users who are no longer teenagers, couldn’t the tweakers at Googleplex, restlessly implementing their latest ideas for 'improvement', be encouraged to regard stability as a virtue?