Significant Court Decision on Fiscal State Aid
December 22, 2016
Possible Presage to ECJ Final Judgments in Apple, Starbucks, Amazon and Fiat Cases
Yesterday, the ECJ held that the General Court erred in law in concluding that a state measure granted to Spanish companies was not selective because the Commission had not identified a particular category of undertakings exclusively favoured by the tax measure concerned.
This judgment is supportive of the Commission’s arguments in the pending Apple, Starbucks, Amazon and Fiat cases and a first indicator of what the ECJ might ultimately decide. In these four cases, the Commission adopts a broad approach towards the reference tax system, which is deemed to be the general corporate income tax system of the respective Member States.
If the ECJ follows the same logic in the pending cases and the measures offered to Apple, Starbucks, Amazon and Fiat are found to derogate from the reference tax regime and to apply a different treatment to companies that are in comparable situations, then the Court could conclude that the measures are selective. This would appear to be the case even if the state measure is in principle open to all companies.