The Rebus of Selectivity in Fiscal Aid: A Nonconformist View on and Beyond Case Law

Abstract

The application of State aid rules to tax measures has become highly controversial, particularly in the last decade; a number of theoretical difficulties and a fierce criticism surround this topic today. The conceptual framework currently deployed by the State aid legal doctrine is insufficient to address the phenomenon of fiscal aid in its entirety. This has resulted in a case-by-case approach by the courts that has generated inconsistencies and legal uncertainty. The author shares his views on how the current legal standards should be revised, also in terms of law policy, e.g. by taking the underlying objectives of the Treaty into full account. The goal being to foster the development of a new approach to assess fiscal aid, built on the distinction between truly macroeconomic measures and measures that (also or mainly) pursue more specific goals. To this end, some broad categories of fiscal measures are discussed. Drafted in a deliberately concise manner, this opinion article does not provide an exhaustive account of the European Union (EU) case law or the decision-making practice of the Commission. Rather, also considering the number of appeals currently pending against Commission decisions and the General Court’s judgments on these issues, reference to specific cases is limited to what is necessary to provide examples of the broad categories of fiscal measures under discussion.