0 Bozza Tesi Completa

UNIVERSITÀ DEGLI STUDI DI BERGAMO Dottorato di Ricerca in Economia e Diritto dell'impresa - Business and Law - XXXIII Ciclo - THE TAXPAYER PROTECTION IN EU STATE AID LAW Relatore: Chiar.mo Prof. Gianluigi Bizioli Tesi di Dottorato Elena MICELI Matricola n. 1051907 ANNO ACCADEMICO 2019 / 2020 TABLE OF CONTENTS INTRODUCTION ............................................................ 1 CHAPTER I FISCAL STATE AID 1. The concept of State Aid in the field of taxation: introduction............................................................................. 13 2. The interplay between State Aid prohibition and direct taxation: an historical view…………………………………………… 26 3. The methodology of State Aid review of tax measures. ....... 37 3.1. State Aid criteria: selectivity and advantage. ........... 39 3.2. The three-step test: reference system, derogation and justification. ...................................................................... 53 4. Overview on recent trends: the EC investigations and decisions and the review of tax rulings under State Aid rules. ............... 73 5. What is the taxpayer's perspective? A -still- unresolved issue......................................................................................... 99 CHAPTER II THE TAXPAYER'S POSITION IN STATE AID INVESTIGATION PROCEDURE 1. The procedural rules. ............................................................. 105 II 2. Benchmark: the fundamental rights as general principles of EU law and the possible application of the EU Charter of fundamental rights. ............................................................... 119 SECTION I THE TAXPAYER'S RIGHT TO BE HEARD 1. The principle of a good administration in EU Charter of fundamental rights............................................................. 146 2. The taxpayer's position in State Aid investigation procedure........................................................................... 158 3. The taxpayer's procedural rights. ...................................... 162 4. Is there an asymmetry with the recognition of protection of complaints' rights? ............................................................ 174 SECTION II THE TAXPAYER'S RIGHT TO PRIVACY AND CONFIDENTIALITY 1. The right to privacy and confidentiality in the EU Charter of fundamental rights............................................................... 180 2. The right to access to documents and files.......................... 192 3. The (im)balance between the right to privacy and to access and the need to transparency in State Aid investigation procedure. ........................................................................... 199 4. Final remarks. ..................................................................... 209 III CHAPTER III THE TAXPAYER'S POSITION IN STATE AID RECOVERY PROCEDURE 1. The Recovery of Fiscal Aid: rules, purpose and limits. ........ 216 SECTION I THE COMPATIBILITY WITH THE GENERAL PRINCIPLES OF EU LAW 1. The role of the general principles in EU tax law. ............... 229 2. Legal Certainty: characters and application in European legal system.................................................................................. 233 2.1. What is the notion of Fiscal Aid after the European Commission decision on tax rulings? A question of legal certainty……………………………………………...... 244 2.2. The Arm's length principle. .................................... 260 3. The protection of legitimate expectations. The standard in the general application of the fiscal European law. .................. 283 3.1. The principle 's application within the fiscal State Aid field. .............................................................................. 300 4. Concluding remarks. ............................................................ 331 SECTION II OPEN QUESTIONS ON RECOVERY LEVEL 1. The specific questions raised in the context of recovery of Fiscal Aid. ........................................................................... 339 IV 2. Limitation period: deadline for recovery and interruption of the prescription. ........................................................……...344 3. Quantification of recoverable Fiscal Aid. Tax credits and restoring the status quo. ....................................................... 347 4. Recovery interests. ............................................................... 353 CONCLUSION ........................................................... 356 BIBLIOGRAPHY ........................................................ 371 V VI Introduction The competition policy of the European Union was developed to ensure fair competition, proper functioning of markets and a competitive economy within the internal market. At the centre of the European legal system is the concept of an internal market, defined in Article 26 of the Treaty on the Functioning of the European Union (hereinafter, TFEU) as "an area without frontiers in which the free movements of good, persons and capital is ensured in accordance with the provisions of the Treaties". State aid prohibition, together with the prohibition on cartel agreements and abuse of dominant market position, is aimed at ensuring the protection of the internal market. Traditionally, in the field of State aid law, there has always been an attempt to strike a balance between two conflicting demands which are, on the one hand, the protection of free competition and the internal market and, on the other, the protection of national sovereignty and autonomy of the Member States regarding the choices of internal economic and fiscal policy. While it is true, in fact, that direct taxation falls within the competence of the Member States, it is equally true, and peacefully accepted, that the Member States must exercise their fiscal competence in compliance with Union law1. 1 To understand European competence in the area of direct taxation, it is relevant to examine the principles governing European competences. The fundamental of European competences is laid down in Article 5, which establishes the principles of conferral, subsidiarity and proportionality. Under the principle of conferral, the Union may act only within the limits of competences conferred upon it by the Member States in the Treaties to attain the objectives set put therein. Competences not conferred upon the Union in the Treaties remain with the Member States. The two other principles, that are key to tax harmonization, limit the exercise of legal competence. The principle of subsidiarity requires that the European Union execute its competence only if and in so far as the objectives of the proposed action cannot be sufficiently 1 In a multilevel context, the definitive consolidation of the single market required more and more the exercise of a direct action on national scales by the European institutions. This implied the breaking of the traditional intervention schemes based on the competence-attribution binomial 2 . In recent years, in fact, the European Institutions began to implement their coordination action through the expansive exercise of skills and powers already expressly attributed by the Treaties in relation to distinct sectors of intervention. Beyond the strictly political critical issues, it immediately became evident that the European approach led to an inevitable compression of the taxing power of the Member States and the relative territorial autonomies. In this sense, the search for a tax regime common to the Member States of the European Union seemed increasingly inseparable from European control over State aid 3. During the years, in fact, the continue interaction between State aid discipline and national tax legislation have contributed to transform the prohibition on selective aid under Article 107 (1) TFEU, not only a powerful policy tool in the hands of the European Commission, but also a substantial constraint to tax achieved by the Member States. The principle of proportionality requires that European action not exceed what is necessary to achieve European objectives. There are a few additional principles that indirectly affect European competence in the field, both direct and indirect, taxation and potentially limit the tax sovereignty of Member States. Among these, the prohibition of direct and indirect discriminatory taxation of foreign products and direct and indirect fiscal protection of domestic production play an important role in preventing protectionism (Article 110 TFEU). The inverse principle is the prohibition of direct and indirect tax subsidies on products exported to another Member State (Article 111 TFEU). 2 EUSEPI S., L’incidenza della normativa in tema di aiuti di Stato sull’autonomia tributaria degli Stati membri alla luce del nuovo modello di finanziamento, in Riv. dir. trib., 2, 2016. 3 JURY F., Le règime des aides d'Etat: un moteur efficace de la politique fiscale européenne, in Revue del'Unione Europèenne, 620, 2018, 427. 2 sovereignty in the Member States of the European Union4. The Commission began to deal systematically with the applicability of prohibition on State aid to taxation, no longer considering it only one of the possible profiles inherent in the prohibition of State aid, but as the precise objective of its action, orienting the extension of the scope of this prohibition to the achievement of further and different objectives, essentially the approximation of direct taxes and the fight against erosion of the tax base 5 . This is closely connected with the fact that Article 115 TFEU, that is the legal basis underlying the approximation

Load more