Business Law International (BLI)

The European Commission has commenced State aid investigations into multinationals’ tax arrangements, including in respect of Apple, Fiat, Starbucks and Amazon. Developments during the past ten years have been seismic, the debates have been fierce and press coverage has been unparalleled.

There are both legal and non-legal reasons for this. The main non-legal reasons are the involvement of high-profile multinational companies as alleged aid beneficiaries, the ensuing diplomatic spat between the EU and the US over the alleged ‘targeting’ of US companies and the nexus between the investigations and the EU’s fight against corporate tax avoidance. The main legal reasons are explored in this article.

In this article it is asserted that the Commission has overreached and exceeded its mandate by advancing novel legal theories in relation to EU State aid law. More specifically, it has endeavoured effectively to circumvent the unanimity requirement in adopting EU tax legislation by using its exclusive competence in State aid matters to push Member States into adopting OECD taxation standards.

The author seeks to demonstrate that, despite some setbacks, the pendulum seems to be swinging towards more deference towards Member States’ tax autonomy in areas where there is no harmonised EU law, and that this is a positive development for two reasons. First, in terms of legal certainty, it provides closure in a series of ‘open’ matters. Second, the Court of Justice of the European Union (CJEU) has sought to strike the right balance between exclusive EU competence (State aid law) and Member States’ tax sovereignty.

Through the analysis that follows, the article will endeavour to shed light on a number of questions, as seen through the case law. First, what are the limits to the EU getting involved in national tax policy? Is it legitimate to circumvent those jurisdictional restrictions through the use of State aid policy? Second, what was the logic of the Commission’s approach and what were its weaknesses? Third, did the CJEU fully accept the Commission’s approach?

The structure is as follows. The first part will provide some State aid background for those who are not familiar with EU State aid law and recent seminal cases. The second part analyses what the case law means for Member States’ tax sovereignty, while the third part concludes.

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The Netherlands has positioned itself as a leading European jurisdiction for collective redress. Over the past few years, many (often international) ‘mass damage claims’ have found their way to Dutch courtrooms. Notable examples include massive privacy litigation cases and several other collective actions in the ‘tech’ sector. The Dutch collective regime also attracts landmark competition follow-on cases.

This development may not come as a surprise. Many international corporations or their subsidiaries have a seat in the Netherlands and litigation in the Netherlands is considered relatively inexpensive. From a legal perspective, Dutch courts tend to be quite liberal in accepting international jurisdiction, while Dutch civil law offers ample possibilities for collective redress in mass damage cases.

Also, Dutch law offers several routes to collective redress. Apart from ‘classic’ routes via power of attorney, assignment of claims or mandate, it has been accepted for decades, first by the Dutch Supreme Court in its case law, later confirmed by the legislator in the Dutch Civil Code, that a foundation or association may bring collective claims for the benefit of a ‘class’ of claimants or environmental or other general interests. Such collective claims used to be limited to obtaining collective injunctions, prohibitions or declaratory judgments. A collective claim for damages was excluded, because it was believed that collective proceedings do not allow for a proper assessment of the individual circumstances of the case needed for a damages award. Individual follow-up proceedings therefore remained warranted to obtain compensation. Over time, this belief has changed. In 2005, the Dutch legislator introduced the possibility to petition the Amsterdam Court of Appeal to declare a – voluntarily reached – collective settlement generally binding to the entire class of persons the collective settlement pertains to, with an opt out-possibility. In 2020, to enhance possibilities to settle ‘mass damage claims’, the Dutch legislator took a next, sweeping step, introducing the Wet afwikkeling massaschade in collectieve actie (WAMCA), enabling a foundation or association to claim collective damages for an entire class of persons, also on an opt-out basis.

This article will discuss the possibilities for collective redress offered by Dutch civil law in more detail, focusing on the WAMCA. It will briefly discuss its background and then focus on the admissibility requirements for a foundation or association acting for the benefit of a group of stakeholders (to which we will also refer as ‘representative’). Five years after its introduction, the admissibility requirements have proven to be quite challenging for claimants. To date, only one WAMCA case has successfully met these standing requirements and proceeded to a judgment on the merits. This Vattenfall case was about alleged wrongful invoicing by an energy company. The District Court decided that the invoicing was not wrongful and dismissed the collective claim for damages in its entirety. The first court judgment actually awarding collective damages under the WAMCA is yet to come. We expect the more ‘classic’ routes to collective redress – such as those currently utilised in cartel damages litigation, which remains a flourishing practice – to continue to remain important. The future may bring even more mass damage cases, for instance following new European legislation in the field of ESG such as the Corporate Sustainability Reporting Directive and Corporate Sustainability Due Diligence Directive.

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Until the advent of new technology and the imminent enforcement challenges posed by AI, the product liability regime that applied at the European Union (EU) level had served the EU well for close to 40 years.

At the national level, the rules among EU Member States implementing the Product Liability Directive (PLD – Directive 85/374/EEC) harmonised the liability of producers for defective products. These rules coexisted with other extra-contractual liability rules that can also be invoked by those who have suffered damage. As a result, in relation to liability claims in the EU, there are three avenues currently available for compensation claims (complementary pillars of liability), namely: compensation based on a fault-based liability claim; reliance on a strict liability claim; or actions based on claims against the producer of a defective product.

The European Commission (the ‘Commission’) published in September 2022 a proposal for a new Directive on liability for defective products, which would revise, repeal and replace the Product Liability Directive. A new (revised) Product Liability Directive (‘revised PLD’) was formally signed on 23 October 2024 and published on 18 November 2024, with its new rules applying to all products placed on the EU market or put into service after 9 December 2026.

This article seeks to assess whether the revised PLD is capable of achieving specific objectives in terms of: accommodating the latest technological advances, circular economy business models and global value chains; ensuring that liability rules reflect the nature and risks of products in the digital age and in the circular economy; promoting undistorted competition (eg, to ensure that a level playing field exists between EU and non-EU manufacturers); ensuring that businesses and consumers are subject to fair and predictable rules; instilling confidence in the safety and reliability of AI-enabled and other innovative products and services; ensuring that consumers’ health and property are afforded a high level of protection for any harm caused by hazardous products, including digital products and AI systems; reducing disproportionate obstacles to achieving effective compensation (by easing the burden of proof in complex cases and easing restrictions on making claims), and ensuring that a fair balance exists between manufacturers/economic operators and consumers (without discouraging investment and innovation in AI-powered products and other emerging digital technologies); and maintaining an appropriate balance between the interests of claimants and defendants before Member State courts.

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The Norwegian Transparency Act is Norway’s first piece of legislation to impose human rights due diligence obligations on companies, and joins the ranks of several legislative acts on business and human rights adopted globally in the last decade. The Act builds on international soft law standards, including the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights. It contains three main obligations: a duty to conduct due diligence covering human rights and decent working conditions in the companies’ own operations, supply chains and business partner relationships; a duty to report on the due companies’ diligence; and – notably – a duty to answer to information requests from the public.

The Transparency Act applies both to Norwegian companies as well as some foreign companies that meet certain criteria and exceed further specified thresholds.

In July 2025, the Act will have been in force for three years. The first years of the Act’s operations have largely been hallmarked by companies adapting to new requirements and gradually strengthening their human rights due diligence. However, in September 2024, the first infringement fee was issued to a company for failing to comply with the Act. Although the decision was overturned by the appellate body in February 2025, it illustrates that in-scope companies now face a real risk of sanctions for non-compliance.

This article provides a general overview of the Transparency Act, and reviews its first years of operations, including the first penalty that was issued in 2024 and overturned in 2025, as well as the Norwegian Ministry of Children and Families’ ongoing evaluation of the Act. Throughout its analysis of the Transparency Act, the article compares the scope and nature of its obligations with those of similar legislation in other countries and regions, in particular with the recently adopted European Union Corporate Sustainability Due Diligence Directive.

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