EU State Aid and National Taxation: Moving Towards Harmonization

Abstract

Freedom of the Member State to set up their own tax systems and pursue different tax policies is strained by the Treaty provisions. Various tax measures may distort competition in the internal market and thus constitute State aid. This article explores the application of State aid rules to national tax provisions and establishes a link between the wide interpretations of selectivity criterion in the State aid definition on the one hand, and the Commission's aim to combat harmful tax competition between Member States on the other. In the wake of the ongoing financial crisis, national governments are forced not only to exercise expenditure cuts and fiscal discipline, but also to impose tax increases. However, the current interpretation of the Commission and the European Court of Justice enables almost any tax measure to fall into scope of State aid provisions, which leads to legal uncertainty and opening up the floodgates of the EU State aid supervision. The article submits that this tendency is due to aim to tackle harmful tax competition between the Member States. However, State aid provisions are not an adequate tool for such a task. Recent case law of the Court will be analyzed and it will be argued that different interpretation of the selectivity criterion will not solve the Court and the Commission's overly wide application of the State aid rules. Instead, especially after the Gibraltar case, the Court is telling us that the next step should be harmonization of direct taxation.