EStAL - European State Aid Law Quarterly

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The search returned 5 results.

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.

Julie Leroy

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 325 - 336

This article, like my PhD thesis on which it is based, focuses on the recovery of unlawful fiscal State aid in Belgium. Currently, Belgium has no general legal framework for recovery procedures: neither for non-fiscal, nor for fiscal State aid. To the contrary, for the recovery of fiscal State aid, ad hoc-legislation was adopted in the past. On the one hand, the research evaluates if there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium, in the execution of a recovery decision from the European Commission. In order to make this evaluation, the existing ‘tax law route’ and ‘civil law route’ for fiscal recovery procedures are charted. Those routes are tested against ten evaluation criteria, which are deducted from EU law and national law. This evaluation clearly shows that there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium. Consequently, on the other hand, this research makes recommendations regarding the content and design of the new proposed framework. It is, amongst others, recommended to adopt general legislation that applies to all future fiscal recovery procedures in Belgium. Despite its focus on Belgium, several aspects of the research are also interesting for other EU Member States. Keywords: EStAL PhD Award; PhD research; recovery of unlawful (fiscal) State aid; Belgium; current framework; recommendations for new framework.

Yvette Lind

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 290 - 296

The article concerns the Swedish aviation tax which was introduced in 2018. A tax policy approach is applied to not only consider tax technicalities but also the ideals and goals of the tax from the perspective of the Swedish legislature. Resulting in an inclusion of not only legal aspects but also a consideration of how politics and economics influences the design of such a tax. The author concludes that there are several potential State aid problems with the present design of the tax, eg too low tax rates in order to fulfil its environmental policy objective, an exemption of transit and transfer passengers that distorts the competition between airlines and which is not justified or exempted from State aid rules. Keywords: aviation taxes, fiscal State aid, emission offsetting, carbon offset, polluter pays principle, Sweden

Niels Tack

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 101 - 104

Fausta Todhe

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 249 - 263

In its recent State aid Decisions, the Commission claimed that an (autonomous) arm’s length principle, independent from the one originating in the OECD framework, is embedded in Article 107(1) TFEU as a tool to ensure the protection of the principle of equality. Considered a novelty, the Commission’s approach has been challenged not only by the appeals submitted from the interested parties but also from a number of practitioners and academics. Although the last words remain still with the Courts, the purpose of this article is to join the debate and bring a personal view on the matter. It therefore reviews the recent State aid Decisions on individual aid in order to determine the potential embedding of an (autonomous) arm’s length principle in European State aid law. Keywords: Fiscal State aid; Arm’s length principle; Tax rulings

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