Veronika E. Korom

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 2, Seite 277 - 283

The General Court's decision in Apple’s Irish tax case confirmed that the European Commission is competent to review national tax rulings for whether they confer a selective advantage on a tax payer. Further, the GCEU validated the legal tests on which the Commission relied in reaching its State aid decision. However, the GCEU found that the Commission had failed in its assessment of the specific facts of this case and in particular failed to show the existence of a selective advantage. It therefore annulled the Commission’s decision. Given that the GCEU ruled in favour of the Commission on virtually all points of law but censured the Commission on questions of fact, the Commission’s appeal to the CJEU is likely to face significant challenges on both admissibility and substance.

Marianne Clayton, Maria Segura

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 2, Seite 301 - 303

Birgit Haslinger, Julia Schiestl

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 1, Seite 154 - 158

Wout De Cock

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 1, Seite 180 - 183

Wout De Cock, Tom Bonne

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 1, Seite 158 - 160

Benjamin Linke

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 3, Seite 442 - 444

Federico Fichera

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 4, Seite 479 - 491

Digital companies, on which contemporary economies are largely based, rely heavily on intangible assets and data processing. They are also able to carry out their activity without a physical presence in the market, which creates a separation between the country where these companies make their profits and the country in which those profits are taxed. It has thus become important to develop an efficient strategy to tax these operators. In 2018, the European Union made an attempt to do so and the Commission introduced a proposal for a directive on the introduction of a Digital Service Tax (DST). Due to lack of the required unanimity in Council, such a proposal was not adopted. In the meantime, however, some Member States have introduced their own national DSTs, clearly inspired by the Commission's proposal. This paper investigates whether such fiscal measures constitute State aid and, in light of recent case-law, it concludes that this is probably not the case. However, in consideration of the peculiarities of such taxes, it is argued that they might still be found to trigger Article 107(1) TFEU in accordance with said jurisprudence. From a broader perspective, it is also argued that the approach used by the CJEU when ruling on fiscal aid should be less formalistic and should give more consideration to the potential effect that these could have on competition within the Internal Market. Keywords: Digital Service Tax; digital taxation; Fiscal State aid; GAFA; selectivity.

Raymond Luja

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 4, Seite 578 - 584

The Andres judgement has often been seen as a Milestone on selectivity, but in essence it is not. It rather deals with the absence of an advantage. In this contribution the author revisits Andres and concludes that, from a transactional perspective set forth in Sigma Alimentos Exterior, the outcome could well have been different. He also points out that Andres opened up a loophole to the state aid regime that could be exploited by providing targeted relief to over-inclusive anti-abuse measures. He concludes that it is primarily up to national legislators and domestic courts to guard against disproportional tax measures. Milestones Preview: this annotation is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Irene Agnolucci

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 2, Seite 193 - 198

The turnover-based taxes imposed by Hungary on Vodafone, Tesco and Google are found not to be State aid by the CJEU. Indeed, the Court states that a taxpayer cannot rely on the argument that the exemption enjoyed by other taxpayers constitutes State aid, in order not to pay a tax. Nevertheless, instead of relying on the criteria enshrined in Article 107 TFEU, in order to constitutes State aid the relevant test to pass is whether a tax is directly hypothecated to an aid measure. Furthermore, the three judgments touch upon the relationship between State aid control and the free movement provisions. Although the issue is not openly addressed by the Court, the two sets of rules are analysed concurrently rather than alternatively. As for the analysis on the free movement, the Court finds that the establishment of a steeply progressive tax does not discriminate per se between home companies and the ones established abroad and thus the Hungarian law complies with EU law.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 3, Seite 329 - 338

In its long-awaited ruling on 18 June 2019, the General Court (GC) annulled the Commission's State aid Decision in the Micula case where the Commission considered that the damages payment by Romania of an ICSID award constituted State aid. In the GC's opinion, the payment of the adverse arbitration award by a Romania does not constitute illegal State aid. Unfortunately, the GC's reasoning is tied to the timing of the measure taken by Romania, which took place before Romania acceded to the EU, and the rest of the compelling substantive pleas were not assessed. Moreover, the GC did not rule on whether the compensation of the withdrawal of the tax incentives for the post-accession period constitutes State aid given that the Commission failed to distinguish between compensation for the period predating accession and post-accession. For this reason, this judgment does not put an end to the Micula saga as long as the Commission has lodged an appeal before the Court of Justice. Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentives, damages compensation, enforcement