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The Excess Profit Exemption System · Joined Cases T-131/16 and T-263/16 Belgium v Commission · Annotation by François-Guillaume de Lichtervelde Journal Artikel

Annotation on the judgment of the General Court (Seventh Chamber, Extended Composition) of 14 February 2019 in Joined Cases T‑131/16 Belgium v Commission and T-263/16 Magnetrol v Commission

François-Guillaume de Lichtervelde

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 3, Seite 382 - 390

As the first State aid case involving tax rulings to reach the General Court, the judgment regarding the Belgian ‘excess profit exemption’ regime was highly anticipated. Instead of investigating separately the tax rulings granting the exemption, the Commission had intended to frame the case at the higher level and went after an ‘aid scheme’. The Court did not follow this qualification and set aside the Commission’s Decision. While the judgment inflicted a blow to the enforcer’s approach, the Court did not take a position on the most sensitive questions raised by this case. The boundaries of EU State aid control with respect to tax rulings thus still remain unclear. However, the judgment established that Belgium enjoyed a margin of discretion in adopting the rulings that granted the excess profit exemption. This finding, which was fatal to the Commission’s scheme-based theory, may now support the Commission’s case that the rulings are ‘selective’ and could therefore amount to State aid. In that sense, the judgment may ultimately have done more harm than good to Belgium’s case against the Commission’s investigation. Keywords: Excess Profit Exemption; Tax Rulings; Aid Scheme; Individual Aid; Belgium; Discretion; Selectivity.


The National Transparency Registers in Action Journal Artikel

Katrine Lillerud

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 3, Seite 239 - 248

National registers on individual aid grants above €500 000 became mandatory from 1 July 2016. The European Commission hopes the registers will promote compliance, raise awareness on aid granted and function as a disciplinary measure. They count on the registers to ensure better control at the national level, by incentivising beneficiaries to comply and by providing enough information for competitors to check whether aid was lawfully granted. This article provides a case study of how the national registers function in Norway, Iceland and Liechtenstein. The three European Economic Area States are an interesting case study as they are the only countries that have opted for their own national transparency registers, whilst the EU Member States all use the Commission’s portal. The findings show that the transparency registers currently do not provide the information required for competitors to assess the compatibility of an aid measure with the internal market. Almost all the published aid measures lack a link to the national legal basis or the granting authorities’ decision on the individual aid measure. These shortcomings are easily corrected. However, if left unattended, they arguably render block exempted aid unlawful. Currently, the effect of the national registers appears to be that they induce competitors to apply for aid rather than litigate on it. Keywords: Ex post evaluation; Block exemptions; National transparency registers; Individual aid; Privatization of State aid enforcement; Transparency communication

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