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

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.

Ilkka Aalto-Setälä, Sami Hartikainen

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

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 447 - 457

The General Court annulled the Commission’s Decision qualifying as State aid a tax regime granted by Spain to certain Spanish professional football clubs (namely, FC Barcelona, Real Madrid FC, Athletic Bilbao and Club Atlético Osasuna). The General Court took the view that the Commission had not proven that the tax regime had the effect of conferring an actual economic advantage on these four clubs. This judgment is highly significant because, without ruling on most of the substantive issues of the Case, it is the first time that criteria on the burden and standard of proof incumbent on the Commission are so clearly stated, particularly in the field of State aid. Moreover, this General Court’s approach is supported by recent and later Case law under which the Commission is required to carry out a complete analysis of all the factors that are relevant to the measure at issue. Keywords: Burden of proof; Standard of proof; Tax advantage; Football; Sports.

Guilherme Galdino

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 510 - 518

Given that special charges have not been addressed properly, one intends to answer whether it is better to consider the aid as the non-imposition or the tax exemption, or as the tax itself. To address this issue, the cumulative application of free movement of rights and State aid rules is examined, mainly, in light of the possible consequences. Not only is the concept of negative State aid discussed, but also the legal reasoning and consequences appropriate to its application are analysed. The author argues that State aid rules should, by analogy, be applied to special charges, considering the tax itself the aid because: the selective analysis is maintained; it is possible to define an appropriate remedy; and it can be applied to situations involving also free movement rights. Keywords: Special Charges; Negative State aid; Asymmetrical taxes.

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.

Péter Staviczky

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 61 - 70

In April 2018, the General Court issued the first ever judgment in EU law dealing with the legal requirements for applying injunctions in State aid cases, more specifically suspension injunctions. The Commission rarely uses these measures; therefore it is beneficial to know how the EU judicature sees the legal boundaries of these legal concepts and where the limits for the Commission are to use them properly.

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.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 377 - 381

Without ruling on the merits of the Case, the General Court annulled the Commission’s Decision qualifying as State aid a tax regimen granted by Spain to the major Spanish professional football clubs Real Madrid, F.C. Barcelona, Athletic Club de Bilbao and Club Atlético Osasuna. Following the action for annulment from F.C. Barcelona, the General Court took the view that the Commission had not sufficiently proven that the tax regime had the effect of conferring an actual economic advantage on these four clubs. Keywords: State aid; Burden of proof; Standard of proof; tax advantage; tax rate.

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