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Turnover-based Taxes in EU State Aid Control: The ‘Hypothecation Test’ and Its Relationship with Free Movement · Cases C-75/18 Vodafone Magyarország, C-323/18 Tesco-Global Áruházak and C‑482/18 Google Ireland · Annotation by Irene Agnolucci journal article

Annotation on the Judgments of the Court of Justice of the European Union (Grand Chamber) of 3 March 2020 in Cases C-75/18 Vodafone Magyarország, C-323/18 Tesco-Global Áruházak and C‑482/18 Google Ireland

Irene Agnolucci

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 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.


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.

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