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Keyword: Material Selectivity

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Spanish Goodwill – A Textbook on Material Selectivity Awaiting a Second Edition journal article

Andreas Bartosch

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 65 - 71

The Spanish Goodwill saga which has covered more than a decade of fluctuating litigation before the EU Courts has certainly made many of the different shades of the notion of material selectivity visible, some of which it moulded, some of which it re-affirmed. In this it will certainly go down in State aid history as a remarkable piece of jurisprudence. What it has not managed, glady so, is to end the magical mystery material selectivity surrounds itself with. And the latter is very much a blessing to our future debates and discussions.Keywords: Spanish Goodwill; material selectivity; taxMilestones Preview: this article is based on a chapter in the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Refining the Derogation Test on Material Tax Selectivity: The Equality Test journal article

Begoña Pérez-Bernabeu

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 582 - 597

The research focuses on the problems that the ECJ has found in recent cases at applying the classic three step selectivity test in the area of taxation. The Court is confronted with the Member States’ attempt to circumvent the State aid rules by creating ad hoc general tax systems so there is no general system against which the tax measures can be assessed. In order to avoid this circumvention, the ECJ has shifted its case law on material tax selectivity towards a new “comparability test” (also called “equality test”) based on a non-formalistic approach which takes into account the underlying objectives of the tax measure. This “comparability test” encompasses an objectives-based approach which provides Member States a higher degree of freedom. However it seems to be rather vague because it involves the difficult task of distinguishing permissible goals from impermissible goals which irretrievably leads us to a case-by-case analysis which does not provide the desirable degree of legal certainty and predictability. The main conclusion of this research is that the criterion of material tax selectivity is not definitively formulated in the ECJ case law but, on the contrary, it is open to refinements in order to meet the challenges that current and future State aid cases may raise. Keywords: Material Selectivity; Tax; Derogation; Equality Test.

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