Convergence of the Analysis of National Tax Measures under the EU State Aid Rules and the Fundamental Freedoms
This article demonstrates how the methods of analysis applied by the EU Courts for testing the compatibility of national tax measures with the EU free movement provisions, on the one hand, and the EU State aid rules, on the other, gradually converge. First, the concept of selectivity under the State aid rules is interpreted by the EU Courts (and the EU Commission) very similarly to the concept of discrimination insofar as it is considered to describe measures that treat objectively comparable situations differently. Second, the analysis under the State aid rules allows prima facie selective measures to be justified just like the free movement provisions admit the justification of discriminatory measures. Apart from this common basic pattern, the article points out further parallels between the methods of analysis under the two regimes, such as the choice of the comparability criterion, the multiple comparisons which are carried out at the different stages of the analysis, the nature of the accepted justification grounds and the role of the proportionality test. The purpose of highlighting these parallels is to identify the areas where similar conceptual problems require similar solutions under the two regimes and also those areas where the remaining differences between the two regimes necessitate different approaches.
Keywords: Fiscal State aid; Free Movement Provisions; Tax Measures; Selectivity; Comparability; Public Interest; Proportionality.