歐盟智慧財產權創新研究開發之稅收獎勵與國家補貼探討

美國布魯金斯研究院（Brookings Institution）資深經濟研究員、哈欽斯財政與貨幣政策中心（Hutchins Center on Fiscal and Monetary Policy）主任，大衛．魏瑟（David Wessel），於2018年3月23日出版的哈佛商業評論登載一篇名為「谷歌害了美國經濟?」之時事觀察文章，雖知以谷歌之名僅是意喻，其泛指所有美商科技明星企業，是否「成也蕭何，敗也蕭何?」作者以谷歌為例，指出蘋果、星巴克、亞馬遜、臉書等明星產業都有集中化之趨勢；這些大企業「善用」自身資本規模與軟實力，無聲地擊退潛在競爭者，造成「美國經濟普遍出現競爭太少的現象」，而呈現少數獨占鰲頭之集團公司掌控美國市場甚而全球經濟。不可否認的事實，這些科技巨擘自千囍年後，近20年確實帶領全球邁向另一波經濟成長，更翻轉了硬體產業在全球經濟之比重，但亦享受了巨大事業體所能操控市場之絕對利益，相對的市場機制失靈卻因此而生。呼應前述產業現象，以知識經濟為主要事業之跨國科技企業，完美利用現行法規或舊制，佐以寬鬆租稅優惠政策，達成合法避稅之效果，如本文所探討之「專利盒」制度，其原為歐盟成員國所實施之鼓勵智慧技術創新所授予之稅收優惠，隸屬歐盟競爭法之國家補貼項目。因應歐洲經合會之稅基侵蝕與利潤移轉行動計畫（OECD BEPS Action），歐盟執委會對在歐盟國有市場力量之科技企業展開調查，近期判決諸多美商企業因違反歐盟國家補貼法而須補繳累計獲取之稅收減免總額，故此引起國際間關注。雖然歐盟法於成員國間具有優位性，考驗執委會如何在二個體制下，兼容會員國實施的經濟發展策略所造成之不公平競爭及市場失靈問題與挑戰。再，英國脫歐後，歐盟如何協調與運作競爭法執法雙作業之人力、成本與效率。以上都是值得探討的實務問題。總而言之，以往普遍認為智慧財產權、租稅、競爭法等應無直接關聯，在美商跨國企業陸續遭受歐盟執委會不公平競爭之調查與處罰的同時，由OECD BEPS 15項行動方案之第1項「因應數位經濟的挑戰」、第8項「無形資產移轉訂價指引」亦即智慧財產權)，接續2017年全球同步推行之「反避稅」條款 (以權利金利潤移轉為首要)，在在可見智慧財產權、租稅優惠、競爭法等關聯性，及當前國際組織與各國政府支持規範智慧化產業及防止激進租稅規劃之決心。當全球產業結構改變，消費者行為與習慣不再僅限於觸摸得到的商品，相關的國家經濟制度與規範將涵蓋更廣泛多型態的智慧財產產品，市場機制的改變與快速律法制定應對，將是各國當務之急。

關鍵字

競爭法；國家補貼；專利盒；專利聯盟； OECD ； BEPS ；反避稅；不公平競爭

並列摘要

The Senior Economic Researcher at the Brookings Institution, Director of the Hutchins Center on Fiscal and Monetary Policy, Mr. David Wessel, who published an article regarding “Is Lack of Competition Strangling the U.S. Economy?" on March 23, 2018 in the Harvard Business Review, although it is only a metaphor in the name of IT star companies, indeed it means the harm made by some of American high technology enterprises, citing a Chinese saying " the success or failure of the affair is all due to the very same person ". The author takes Google as an example, pointing out that the star companies such as Apple, Starbucks, Amazon, Facebook and so on have intended to be industry centralized; these big companies "utilize”" their market power and high-tech capability to quietly repel other potential competitors, resulting in “the phenomenon of least competition in the US market.” The high-tech multinational companies dominate the US local market as well as the global market. It is undeniable that these technology giants have led the world to another level of economic growth in the past 2 decades since the beginning of the year 2000. They have turned over the weight of the hardware to software in the global economy, yet they also have enjoyed the absolute interests of the huge business to control the market, thus the corresponding market has eventually resulted. Responding to aformentioned industrial phenomenon, the multinational technology enterprises which mainly rely on smart technology in current digital economy, perfectly use of the leakage of current regulations or the old public system, and the preferential taxation policy to achieve the effect of legal tax avoidance, such as the "patent box" system discussed in this article. “Patent box”, it is the tax incentives implemented in a number of EU member states to encourage smart technology innovation; it is a part of the EU's competition law belonged to State Aid program. In response to the OECD BEPS Action Program, the European Commission has conducted an investigation of technology companies who own the control power in the EU market, and recently sentenced some US companies which violate the EU State Subsidy Act. As a result, those companies are necessary to pay back the total amount of tax credits obtained; the case has drawn lot of attentions and concerns. Although the EU law has superiority among member states, it is a challenge for how the Executive Committee is compatible with the unfair competition and market failure problems caused by the economy development strategies implemented by the member states under two different public systems. Furthermore, another challenge, after the Brexit, how does the EU with UK coordinate and manage communication, manpower cost and efficiency while involving in the the competition law enforcement. These are all practical issues worth to be exploring and discussed. In short, it has been widely believed that intellectual property rights, taxation, competition laws, etc. should not be directly related. Yet it can be seen in the case of US based multinational enterprises that have been subjected to investigation and punishment by the European Commission due to unfair competition, in addition OECD BEPS’s First Action to address the topic of "In response to the challenges of the digital economy", Action 8 for the "Guidelines of transfer price for intangible assets”, and the "anti-tax avoidance" clause enforced (contributed by the income of royalties), all of them have evidenced that the intellectual property rights, tax incentives, competition law are all related since now. Also seeing the strong intention of international organizations as well as governments supports the movement to cultivate intelligent industries and the prevention of corporates’ aggressive taxation plans. When the global industrial structure changes, consumer behaviors and habits are no longer limited to the products obtained by touch, the relevant national economic systems and norms that will cover an even wider variety of types of intellectual property goods, changes in market mechanisms and rapid law formulation will become a top priority for all national institutes.