Accordingly, Umicore considers it wrong to characterize the terms of a transaction as “benefit” unless a party would devalue a clearly higher result from that comparison than it would expect from litigation. Belgium disputes the granting of aid to Umicore. Moreover, the transaction at issue did not bring any specificity or advantage to Umicore and did nothing to strengthen the company`s position in relation to its competitors in trade between Member States. Umicore has not received any special treatment, but has only been the subject of a material application to a particular case of a widespread basic instrument. On 21 December 2000, the Special Tax Authority adopted a proposal from Umicore (the “transaction agreement”) concerning the two amending decisions covering the application of VAT for the entire period examined by the tax supervisory authority. The agreement provided that Umicore would pay significantly less than the amounts in the rectification notices. Belgium also argues that the amount of the transaction agreed by Umicore and the special tax inspection is entirely legitimate and justified by Belgian law. It is the result of the following calculation: given the discretion available to the authorities in this context, it is reasonable to consider that the fine should have been set by the authorities in a transaction agreement between 10% and 50%. A rate of 10% can be considered acceptable in reference to the 10% rate provided in Table G of the Annex of Royal Order 41 for offences under Article 70, paragraph 1 of the VAT code and the 10% fine covered in the amending communication of 30 November 1998. In addition, the 50% rate could be considered the maximum rate in force in accordance with the principle of proportionality and the framework of a transaction agreement. The application of a 50% rate also seems to be supported by the recent jurisprudence of the Belgian Court of Cassation (52). Therefore, given that this penultimate judgment deals with a criminal case, the absence of Umicore`s fraudulent intent can be considered in this case, as a rate of 50% is the maximum rate. First, it is necessary to ascertain whether the measure confers on the recipient a benefit that provides for an exemption from the royalties that normally have to be borne by his budget.
In this case, the issue is whether the transaction at issue was entered into illegally or on the basis of disproportionate concessions by the tax authorities. In order to demonstrate that the procedure applied in the Umicore case also applies to other subjects, Belgium provides a copy of an agreement reached in 2000 with a subject amounting to BEF 6 million, while the communication sent in 1995 to the same subject for the same transactions indicates that they were liable for a total amount of BEF 14 million. Finally, the analysis of the legislation shows that there is no provision establishing the obligation for the Belgian tax authorities to provide an explicit legal basis in the agreements in question. Umicore believes that a tax agreement such as the disputed agreement is not an advantage within the meaning of the TFUE and is therefore not state aid. In particular, Umicore disputes the Commission`s claim that the tax agreement at issue would have put the company in a more favourable position than other taxpayers. It should be remembered that the applicable Belgian administrative provisions stipulate that the conclusion of a transaction with the taxpayer usually involves concessions on both sides. However, under Article 84 of the VAT Code, such accounts are only possible as long as they do not involve a tax exemption or reduction.