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Another combo: on fiscal State aid and geoblocking

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Last week I also did what Pablo calls a “combo” speaking first (on Tuesday) on State aid and taxation at a Lexxion seminar, and then (on Thursday) at iTechLaw’s European Conference in Madrid (pictured above). I guess it was useful to try to clear my head from what was happening in the real world.

At iTech Law’s conference I talked about geoblocking, particularly regarding intangible content protected by copyright, focusing in particular on the Pay TV investigation (on which as you know I am involved representing the UK’s independent producers and therefore perhaps not objective). I didn’t really say anything you haven’t read from me before on this blog, so I won’t sum it up again.

The slides are available here: itechlaw-madrid-november-2016_lamadrid

At Lexxion’s seminar on fiscal State aid I talked about two streams of quite a few joined cases on which my firm and I are involved regarding the Spanish financial goodwill (Santander/ Autogrill) and tax lease cases. The first saga has attracted a lot of attention as commentators –and the Commission- have tried to tie its fate with that of the investigations into tax rulings. I had avoided commenting publicly on the case but I feel more at liberty to do it now that the ECJ has announced that it will deliver its Grand Chambre Judgment on 21 December; no one can argue now that we are trying to influence the Court via our writings.

Pablo did write a comment on AG Wathelet’s Opinion (which suggested the ECJ to quash the General Court’s Judgment annulling the Commission’s decision) noting that the AG was proposing nothing short of a revolution (see here). One of the comments to that post suggested that this was not the case as what would have allegedly created this revolution would be the General Court’s Judgment. In essence, the crux of the discussion boils down to deciding whether in order to identify a given measure as “selective” the Commission needs to identify one or various categories of undertakings benefitted.

AG Wathelet thought that this requirement would open the possibility for tax benefits to artificially escape from State aid control (paras. 89-90 of the Opinion). The reason why I cannot be convinced is not only that there are a few Judgments that the Opinion directly contradicts (mentioned by Pablo and distinguished in a pretty striking manner in the Opinion itself) but also, and perhaps more tellingly, that until now no one has yet given us an example of a single State aid identified in the past 60 years that would have escaped State aid control under the test verbalized by the General Court in the Santander and Autogrill Judgments. In reality that case (as well as the tax lease stream of cases) do not bring about anything new; they only verbalize what was already implicit –given its obviousness- in the case law and the decisional practice.

The only reason why it was necessary to verbalize the principle in these two cases only had to do with the way in which the Commission investigated the measure. In the goodwill case the Commission thought it would be able to identify de facto selectivity, and when it realized that was impossible it felt forced to stretch the law concluding that a measure can selective even when it is open both de iure and de facto to anyone. The only way out following the opening of the case was to endorse the tautology that a measure is selective when it gives an advantage to some (regardless of who those are or how they are selected), thus blurring –again- the notions of advantage and selectivity.

Another of the problems of this approach (a perhaps even more serious one, not discussed in the Opinion but importantly underlined by AG Kokott in a parallel case) is that it would turn virtually every fiscal measure in every Member State into a selective measure and, hence, would also, thereby, turn the Commission into a tax co-legislator). In the tax lease case, the original sin contaminating the conclusion has to do with the last minute contrivances to limit the effects of the recovery order to investors (for more of my views on this case see the comments below this post). If the measure wasn’t selective as regards the investors, one cannot claim that they were the beneficiaries  -much less the sole ones- simply because they received a small fraction of a fiscal advantage generated by the measure.

My slides for this talk are available here: lamadrid_-goodwill-tax-lease

Btw, last week Lexis Nexis also published an all-you-need-to-know practice note on State aid and corporate taxation that I have co-written together with my colleague Miguel Angel Bolsa; it’s available here.

Written by Alfonso Lamadrid

15 November 2016 at 12:02 pm

Posted in Uncategorized

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