For years, companies, authorities and even US presidents lament, denounce and protest what they consider an unfair treatment by the EU to large foreign multinationals. They argue that the European Commission and some capitals have giants on the target, especially the Internet, and that they try to punish in the offices that their community or national 'champions' are unable to win in the market. From today, that speech will have a little more difficult. Or a little easier.
The Court of Justice of the EU has issued this morning three decisions by which it fails in favor of Starbucks and Google and against Fiat , in cases that have to do with the tax regime from which they benefited in the Benelux, but also by internal operating procedures of its search engines.
The first case is the leading Italian car company. In 2015, the European Commission considered that the tax ruling , the tax agreement, that the company had with the Grand Duchy of Luxembourg constituted illegal State aid. The second case, with a simultaneous decision, affected Starbucks, this time in the Netherlands, and the same conclusion was reached. "The tax resolutions that artificially reduce the tax burden of a company do not conform to the EU rules on state aid and are illegal. I hope that, with the decisions taken today, this message reaches both public administrations of the Member States as well as companies. All companies, large or small, multinationals or not, must pay the fair share of taxes that apply to them, "said the Danish Margrethe Vestager , demanding that both governments recover between 20 and 30 million of euros not paid in taxes.
The EU General Court, however, has considered that only the first case was justified. Thus, Luxembourg will have to recover the money, as the tax ruling signed with Fiat did involve state aid and discrimination for other competitors in its sector. But instead, he proves Starbucks, in a suit for Brussels, to consider that "the Commission has not been able to demonstrate the existence of economic advantage." So Holland will not have to recover the money claimed by community officials.
Also today, the Court has ruled on another completely different issue that affects Google, determining that "the search engine manager is not obliged to remove the links in all versions of its search engine", but " however, you must remove them in the versions that correspond to all Member States and adopt measures that prevent or hinder Internet users from accessing, from one of the Member States, the controversial links that appear in the versions of that engine outside the Union".
This is a legal battle with origin in France , when the president of the Commission nationale de l'informatique et des libertés (CNIL) (National Commission of Informatics and Liberties, France) imposed on Google a penalty of 100,000 euros because "when said company estimated a request for removal of links, refused to proceed with such withdrawal in all domain name extensions of its search engine. "
The US said no, "just eliminating the controversial links only from the results obtained after searches carried out from the domain names corresponding to the versions of its search engine in the Member States," estimating that the right to withdraw Links does not necessarily imply that controversial links should be removed, without geographical limitation, from all domain names of your engine.
The Conseil d'État submitted several questions to the Court of Justice for a preliminary ruling, and in its judgment, the Court of Justice, after recalling that it already decided "that the search engine manager is obliged to remove from the list of results obtained after a search made from the name of a person the links that direct to web pages, published by third parties and that contain information related to that person, also in the event that this name or this information is not deleted previously or simultaneously from these web pages, and, where appropriate, even if the publication on those pages is lawful in itself. "
But he then states that it is not clear from the Community legal texts that the Union legislator has established such a balance as regards the extent of the withdrawal of links outside the Union or that he has chosen to attribute individual rights to scope that goes beyond the territory of the Member States, nor that it has intended to impose on a manager, such as Google, the obligation to remove links also from the national versions of its search engine that do not correspond to the Member States. , Union law does not provide for instruments and mechanisms of cooperation as regards the extent of the removal of links outside the Union ", an interpretation that may set precedents
In the Luxembourg text it is read that, "in the current situation, the manager of a search engine that considers a request for removal of links submitted by the interested party, where appropriate following a requirement of a supervisory authority or judicial of a Member State, is not obliged, according to the law of the Union, to proceed to such withdrawal in all versions of its engine.
That said, there is an open door , since although Union Law does not require that a withdrawal of links be applied to all versions of a search engine, it does not prohibit it either. "Consequently, the authorities of the Member States continue to be competent to weigh, in accordance with national standards for the protection of fundamental rights, on the one hand, the rights of the interested party in respect of his private life and the protection of personal data that concern you and, on the other hand, the right to freedom of information and, at the end of this weighting, require, where appropriate, the search engine manager to proceed to remove links from all versions of said engine "concludes Luxembourg.
The decisions, in block, can be interpreted in several ways. Thus, Washington can argue that Justice is right and that the courts amend a politicized Commission that harassed multinationals without arguments. At the same time, from Europe it can be offered as proof that the institutions work and that there is no discrimination, as Fiat will have to pay millions of euros in taxes not paid.
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