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Judgment By Formula: Regulatory Form and the Differentiation of Fiscal Measures and Non-Fiscal Measures in EU State Aid Law journal article

Christopher McMahon

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 4 - 14

The State aid rules apply to a wide range of interventions on the internal market that take a variety of different forms. This poses challenges for the case law on the identification of aid within the meaning of Article 107(1) TFEU as it seeks to adapt the standards it applies to different circumstances while avoiding formalism. Criticisms in the academic literature of the application of the prohibition on aid to fiscal measures are frequently premised on the assumption that the rules should apply in a different way to such measures on account of their relationship with the sovereignty of Member States in the field of taxation. The manner in which the law on the application of the State aid rules to fiscal measures remains unsettled. This article examines a substantial doctrinal obstacle to any form of differentiation in the standards used to identify fiscal and non-fiscal measures in the form of two related maxims which recur throughout the case law. The first holds that aid is defined in relation to its effects. The second is that regulatory technique is irrelevant to the classification of a measure as aid. This article will chart the development of these established formulae in the case law and explain their relationship to one another, arguing that they represent a significant, but not absolute impediment to the articulation of distinct standards to identify aid in the form of fiscal measures. Keywords: Effects; Objectives; Selectivity; Fiscal Measures; Taxation; Article 107(1) TFEU; Formalism


Digital Service Taxes under State Aid Scrutiny journal article

Federico Fichera

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 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.


Belgian Ports Carry Out Economic Activities and Should Be Liable to Corporate Tax · Case T-696/17 Belgian Sea Ports · Annotation by Jessica Bracker and Schéhérazade Oozeerally journal article

Annotation on the Judgment of the General Court of 20 September 2019 in Case T-696/17 Havenbedrijf Antwerpen NV and Maatschappij van de Brugse Zeehaven NV v European Commission

Jessica Bracker, Schéhérazade Oozeerally

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 212 - 219

The Case T-696/17 Belgian Sea Ports relates to an action for annulment introduced by the port authorities of Antwerp and Bruges against the European Commission Decision 2017/2115 which found that Belgian port operators had benefited from incompatible State aid through an exemption from corporate tax. This case is of interest in that it sheds light on the difficulties of establishing that an entity is not an ‘undertaking’ in circumstances where the latter performs mixed activities which are both economic and non-economic in nature. Moreover, it provides yet another confirmation that the application of the ‘three step’ analysis for the assessment of selectivity is not always a straightforward exercise. Lastly, it confirms that an aid beneficiary cannot rely on an unlawful aid received by a third party to allege a breach of the principle of equal treatment.


The Spanish Hydroelectric Tax: Asymmetrical Taxation with Environmental Flavour · Joined Cases C-105/18 to C-113/18 UNESA · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the Court (Fifth Chamber) of 7 November 2019 in Joined Cases C-105/18 to C-113/18 UNESA

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 352 - 358

The Spanish tax Canon por la utilización de aguas continentales para la producción de energía eléctrica -guided by a (called into question) environmental objective- taxes only a kind of electricity producers (hydroelectric producers using inland waters located in the territory of more than one autonomous community) on the basis on the environmental damage they cause employing the inland water. In contrast, hydroelectricity producers operating within river basins encompassing a single autonomous community, the rest of electricity producers whose source of electricity production is other than water (which are both direct competitors) and even all the installations which use water for purposes other than the production of hydroelectricity are not liable to the tax. The Spanish Supreme Court referred the matter to the Court of Justice on for a preliminary ruling. However, the Court of Justice conducted a misguided analysis of selectivity through the reference framework method and concluded the inexistence of selectivity and, hence, of State aid.


Progressive Turnover Taxes under the Prism of the State Aid Rules: journal article

Effective Tools to Tax High Financial Capacity or Inconsistent Tax Design Granting Selective Advantages?

Rita Szudoczky, Balázs Károlyi

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 251 - 270

Turnover-based progressive taxes are increasingly popular among the Member States. However, these taxes raise concerns regarding their compatibility with the EU State aid rules. Although there are multiple State aid concerns that deserve attention depending on the actual design of such taxes, the core issue is whether the ability to pay principle can serve as a legitimate objective underpinning turnover taxes and thus justify the different treatment of high-turnover and low-turnover undertakings. This question requires the careful assessment of de facto selectivity because in the case of progressive turnover taxes potential selectivity could only arise from the general construct of the tax in the absence of a derogation from a reference system. This article proposes an alternative test for the de facto selectivity boiling down in essence to the examination of the consistency of the tax. Furthermore, it analyses digital turnover taxes for their consistency with their declared objectives. Finally, the article explores how the Court’s unnecessarily strict approach to the admissibility of State aid questions in preliminary ruling procedures when the main proceeding concerns an individual tax notice could be eased.


Multi-rate Turnover Taxes and State Aid journal article

A Prelude to Taxes on Company Size?

Phedon Nicolaides

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 226 - 238

In order to determine whether a tax measure is selective, it is necessary to determine first the reference tax system. The General Court has recently ruled that the reference system is that which is defined by Member States and includes such components as the tax base, the tax rates, and the various bands of taxable income, profit, or revenue. The Commission may not identify a hypothetical or artificial reference system. The General Court has also ruled that differentiation of tax payers is not necessarily selective as long as it follows from the objective of the system and that the progressivity of tax rates is a form of differentiation that is not necessarily selective. In this connection, progressive tax rates on profit can be justified according to the ability to pay. This article argues, however, that progressive taxes on turnover are unlikely to correspond to ability to pay. It also warns that Member States may be tempted to target company size under the pretext of levying progressive taxation. Keywords: State aid; Turnover; Taxation; Progressive rates; Selectivity


Economic or Non-Economic, that is the Question · Case T-747/17 UPF · Annotation by Jakub Kociubiński journal article

Annotation on the Judgment of the General Court (Sixth Chamber) of 30 April 2019 in Case T-747/17 Union des Ports de France v European Commission

Jakub Kociubiński

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 366 - 371

The Case T-747/17 Union des Ports de France (UPF), an annulment action brought against the European Commission (EC, the Commission) Decision declaring the tax exemption in favour of French ports constitutes a State aid within the meaning of Article 107(1) TFEU, deserves attention primarily for the Court’s view of the differentiation between beneficiaries’ economic and non-economic activities according to which there is no threshold of non-economic activities carried out by one entity required to categorize it as entirely non-economic. The Case also involves distinguishing between individual aid and aid scheme; an assessment of the effect on competition and trade between Member States and the application of principles of proportionality and sound administration. The admissibility hinges on whether the EC Decision addressed to France could be of ‘direct and individual’ concern to a professional association – UPF. Keywords: Taxation, Economic Activity, Non-Economic Activity, State Prerogatives


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 journal article

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.

Marc Custers, Boyd Wolffers

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 561 - 566

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.



ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Taxation and Limits to State Aid: the Case Law of The CJEU on Regional Selectivity and Its Application by Spanish Courts journal article

Saturnina Moreno González

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 340 - 353

This work illustrates the Commission’s initial position and the evolution of EU case law regarding “regional, geographical or territorial” selectivity in tax matters, the issues raised by said case law and the interpretation and application made by Spanish judicial courts in this respect. Keywords: Regional Selectivity; Tax Benefit; Symmetrical and Asymmetrical Distribution of Tax Competences; Right of Proof.

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