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State Aid and the Free Movement Provisions · Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst · Annotation by Marc Custers and Boyd Wolffers

Annotation on the Judgment of the Court of Justice (First Chamber) of 2 May 2019 in Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst.

DOI https://doi.org/10.21552/estal/2019/4/14

Marc Custers, Boyd Wolffers


This annotation explores the relation between the free movement provisions and State aid in the light of the A-Fonds Case. In A-Fonds, the Court of Justice of the European Union dealt with the question whether a national court may conclude that a measure infringes the freedom of capital with respect to a measure that had been declared State aid by the Commission. A finding that the national court may test the contested measure against the free movement provisions (for the years that the measure constituted existing aid) would have as its result that the measure must be made available to comparable foreign taxpayers. Existing aid should in that case be extended. But that would not have been the only result: such conclusion would have broad consequences. The CJ rules in the A-Fonds Case that the national court may not test the contested measure against the free movement provisions, but has ruled differently in other Cases when dealing with the same issue. This annotation provides an analysis of the different approaches that the CJ took when deciding whether a State aid measure may be tested against the free movement provisions together with the consequences of the different approaches.
Keywords: Free movement provisions; Freedom of capital; Existing aid; New aid; National courts; Direct taxation.

Marc Custers and Boyd Wolffers are both lawyer (advocaat) at Loyens & Loeff, the Netherlands. For correspondence: <mailto:marc.custers@loyensloeff.com> and <mailto:boyd.wolffers@loyensloeff.com>.

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