The Commission therefore found that an out-of-court settlement such as the one awarded to Umicore, which had imposed a reduction in vat, fines and interest, was not available to all taxpayers, even if they disputed the merits of the offences attributed to them and therefore the selectivity test was met. Third, a transaction agreement does not, by its very nature, grant any benefit that can be covered by state aid rules. Any compromise decision is, by definition, to assess the risks to each of the parties involved by comparing a specific and immediate payment to the presumed or possible outcome of a dispute. With regard to the fact that the agreement does not define its legal basis, Belgium states that Article 84 of the VAT Code does not contain a binding form or content for VAT tax treaties. Therefore, there was no obligation to mention a legal basis or a formal justification in the agreement. In addition, the Commission expressed doubts about how the agreement was concluded. In particular, the fact that the agreement did not specify its legal basis and its formal justification from a legal point of view constituted a departure from the normal procedure for determining and settling a VAT debt generally applicable in Belgium. In principle, in cases where the authorities question the right of a person subject to the exemption, they issue him with an amending statement that is normally accompanied by a fine. In the event that the taxpayer objects to the tax claimed by the authorities and his objections do not convince the service concerned, the authorities should in principle notify him of an injunction and a 50% increase in the fine. Mr. Umicore explained that the interpretation of the concept of state aid as a lock-in in a tax agreement such as that concluded with the Special Tax Inspectorate would inevitably lead the Commission to overstep its powers by assuming jurisdiction over the collection of indirect taxes that it does not have and to encroach on the prerogatives of national courts which are the only ones competent to rule on tax disputes.
In this context, the Commission considers that a transaction agreement between a person subject to VAT and the Belgian tax authorities can only give rise to an economic benefit under the following conditions: the agreement provides for the payment of 423,000,000 BF, or about 10,485,896 euros, by VAT bond for the years 1995 to 1999 included. The agreement also provides that this amount will not be deducted from corporation tax. In this context, Umicore believes that the measure at issue clearly cannot strengthen its competitive position in the market in question, namely.dem silver pellet market. Therefore, Umicore considers that the agreement with the Special Tax Inspectorate does not infringe on competition or trade between Member States, so that Article 107, paragraph 1, of the treaty does not apply in this case.