EU State Aid Effect on National Tax Legaslation

Abstract

Member states in the European Union have seen an increased pressure to harmonize their taxation systems the last few years. Part of this pressure has come to surface because of an increased political desire to make sure that multinational companies pay their “fair share” of taxes. Today, some multinationals companies receive state aid, through special agreements with the member states, and some member states have state aid directly in their Tax-legislation, which can be basis for unfair competition. This master thesis examines the effect of state aid in national tax legislation within the European Union has on national tax legislation in member states. The European Commission issued a task force in 2013, to investigate state aid through the member states' taxation systems and has since then started 11 in-depth investigations. 8 of the investigations have been finalized. The European Commission is seeking to make state aid illegal with use of ‘’The Treaty on the Functioning of the European Union’’ (TFEU) art. 107, which has built in 5 cumulative requirements that has to be met, for a state aid scheme to be illegal. One of the requirements is basis for a lot of discussion: the selective requirement. In 7 of the 8 finalized cases, the European Commission concluded that the state aid was illegal, cases which all has been appealed to the General Court, and most of these cases seems to be settled on the selective requirement. The European Commission must prove that an aid scheme is selective, and it seems that the European Commission in some of the cases will have difficulties in winning the argument. For the European Commission to be able to make more aid schemes illegal, it seems that a new law, specific for state aid through the taxation system, will be required. Only one of the 7 cases has been settled in General Court. This case concerned a scheme in Belgium called “excess profit”, which made it possible for multinational companies, to lower their taxable income. The Court never discussed the 5 requirements, because Belgium argued that before a scheme can even be considered to be illegal, according to TFEU art. 107, it must first be concluded the scheme is even an aid scheme. The court agreed with Belgium and concluded that 3 cumulative requirements had to be meet, to conclude an aid scheme was in place. In this case the court concluded that none of the 3 requirements was meet, and therefore the scheme could not be considered an aid scheme. Because of this case it was concluded that 8 cumulative requirements have to be meet, before and aid scheme can be illegal. Even though member states, can feel more pressure to harmonize their taxation system, it seems like the European Union does not have the legislation to illegalize state aid through the taxation systems, in the way intended. The member states still have a degree of freedom, do construct their own taxation system, and to some degree give state aid.