Hans Arno Petzold

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 161 - 164

The European Commission has put forward a proposal for a Council regulation aimed at ‘temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID-19 outbreak’. This is not the place to discuss political or financial implications of the idea of a Basic European Unemployment Insurance. But it gives the opportunity to have a look at options for short-time work compensation, based on a case study of the German model, and the State aid relevance of such compensation. Keywords: COVID-19, SURE Initiative, short-time work Ccmpensation, State aid, selectivity, Germany

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

François-Guillaume de Lichtervelde

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 382 - 390

As the first State aid case involving tax rulings to reach the General Court, the judgment regarding the Belgian ‘excess profit exemption’ regime was highly anticipated. Instead of investigating separately the tax rulings granting the exemption, the Commission had intended to frame the case at the higher level and went after an ‘aid scheme’. The Court did not follow this qualification and set aside the Commission’s Decision. While the judgment inflicted a blow to the enforcer’s approach, the Court did not take a position on the most sensitive questions raised by this case. The boundaries of EU State aid control with respect to tax rulings thus still remain unclear. However, the judgment established that Belgium enjoyed a margin of discretion in adopting the rulings that granted the excess profit exemption. This finding, which was fatal to the Commission’s scheme-based theory, may now support the Commission’s case that the rulings are ‘selective’ and could therefore amount to State aid. In that sense, the judgment may ultimately have done more harm than good to Belgium’s case against the Commission’s investigation. Keywords: Excess Profit Exemption; Tax Rulings; Aid Scheme; Individual Aid; Belgium; Discretion; Selectivity.

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 313 - 338

Phedon Nicolaides

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 15 - 28

This paper identifies a significant shift in the approach for determining whether a tax measure is selective. The European Commission, in its decisions on tax rulings, has found that the selective nature of the rulings stemmed from the fact that they endorsed arrangements whose terms deviated from those that would have been agreed under normal conditions of competition. Unlike its other decisions on tax rulings, the Commission in the Engie case does not examine whether Engie benefitted from treatment that was not available to other companies. Instead, the Commission bases its finding of selectivity on the fact that Engie minimised its tax liability. This is an ‘outcome-based’ approached rather than a ‘treatment-based’ approach which requires comparison between companies in similar situations. Without a benchmark of comparison, an outcome-based approach is meaningless. In addition, the Commission breaks new ground by finding a selective advantage in favour of Engie in the non-enforcement by Luxembourg of anti-abuse rules. The Commission asserts that Luxembourg should have refused to issue the tax ruling. Keywords: Selectivity; tax rulings; anti-abuse rules.

Leigh Hancher

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 470 - 488

Until relatively recently, only a handful of State aid cases raised the question of who should discharge the burden of proof. In the past twelve months the issue has begun to surface more regularly. This article examines the role of presumptions in understanding how the burden of proof is allocated in State aid cases before the European courts. Presumptions are a well-established tool in EU competition law. In theory it is for the party alleging that a State aid has been granted — usually the Commission — to show that the State measure confers a selective advantage on the beneficiary. Depending on what ‘hat’ the Member State is wearing when it confers a benefit, the evidentiary burden may shift back to itself to rebut a presumption as to how it has or intends to intervene. This contribution examines the role of presumptions and the allocation of the burden of proof depending on whether the State claims that it acts as a market investor, whether it exercises a public prerogative or whether it arranges the provision of services of general economic interest. Finally, the article briefly considers the burden of proof on third parties, especially in cases where the state authorities have not actively engaged in the rebuttal of a presumption by the Commission.

Ilkka Aalto-Setälä, Sami Hartikainen

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 573 - 574

Philipp Werner, Lucia Stoican

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 101 - 109

The NOx case demonstrates that selectivity continues to be the lynchpin in the assessment of State aid measures. Even though the case has not provided much guidance, it has shown tendencies that were confirmed in later case law: a wide interpretation of selectivity; uncertainty about the application of the selectivity criterion by the Commission, the GC and the CJEU; and divergent views of the CJEU and the GC. For the sake of legal clarity, the CJEU should have clarified which factors it deemed pertinent to determine the ‘similarity’ of undertakings subject to the NOx scheme. This would have provided clarity for the determination of the correct ‘reference framework’ in future cases, which in turn would have made it easier to identify ‘comparable’ market situations. We are focusing in this note on two of the conditions for the existence of State aid under Article 107(1) TFEU, namely selectivity and State resources. Keywords: Material Selectivity; State Resources; Comparability; Reference Framework; NOx Emissions.

José Luis Buendía Sierra

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 85 - 92

This case note examines the analysis of ‘Selectivity’ undertaken by the ECJ and AG Jääskinen in Paint Graphos and subsequent case law. In that case, the ECJ set out some clear limits on the notion of selectivity: Selectivity is ultimately about finding a material discrimination between similar situations and not merely about a formal exception to an alleged general rule. Hence, the Commission can no longer assume the presence of selectivity without, first, defining correctly the reference system ‘strictu sensu’ or universe of situations that are similar, both from a legal and factual perspective. The Commission would also need to prove that the measure gives an advantage to the beneficiaries compared with other undertakings in the same situation. It is only at this stage that we could speak of ‘prima facie’ selectivity. Keywords: Selectivity; Fiscal Aid; Comparability; Reference System; Burden of Proof.

Lorenzo Panci

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 353 - 367

The notion of material selectivity is key to defining the reach of State aid control. I will argue that the ECJ progressively endorsed an increasingly extensive interpretation of the selectivity requirement (which culminated in the Gibraltar judgment), making it easier for the European Commission to demonstrate its fulfilment. One of the consequences of this evolution was that State aid control became easier to use to pursue policy objectives. This was especially true in the context of taxation, despite the lack of harmonisation in this field. However, at the outset of the Gibraltar judgment, the General Court appeared to have taken a position that preserves the policy choices made at national level and this was possible by interpreting the selectivity condition as more difficult to fulfil. On the other hand, it appears that the Commission reacted to the Gibraltar judgment by using State aid control to pursue its policy objectives, in particular to contrast harmful tax competition among MS. Will the European Court of Justice endorse the approach taken by the Commission? Keywords: Selectivity; Gibraltar; Tax Rulings; Tax Competition.