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7 The Guidelines´ Criteria on State Aid for Environmental Protection and Energy 2014-2020

7 The Guidelines´ Criteria on State Aid for Environmental Protection and Energy 2014-2020

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applicable Directive, if any. Otherwise, the necessity will depend on the impact of

the national tax on production costs as well as on the possibility to pass on the tax to

consumers and reduce profit margins. The aid should be proportionate. Proportionality will be assessed in light on whether (and to what extent) the beneficiaries can

further reduce their consumption or emission, pay a part of the national tax or enter

into environmental agreements to reduce pollution.61

The key criteria presented along the text of the Guidelines to ensure compatibility, is that the aid contributes, at least indirectly, to an improvement of the level

of environmental protection and that the tax reductions and exemptions do not

undermine the general objective pursued. The positive effects of the aid should

outweigh its negative effects in terms of distortions of competition, taking account

the polluter pays principle established by article 191(3) TFEU.62 The Commission

authorises aid schemes for maximum periods of 10 years, after which a Member

State can re-notify the measure if the Member State re-evaluates the appropriateness of the aid measure concerned.

Both previous (2008) and current (2014) environmental Guidelines distinguish

between harmonized and non-harmonized taxes and refer specifically to the ETD.

In the first case, the Commission can apply a simplified approach to assess the

necessity and proportionality of the aid. Once the beneficiaries have paid at least the

Community minimum tax level set by the applicable Directive; the choice of

beneficiaries is based on objective and transparent criteria; and the aid is granted

in principle in the same way for all competitors in the same sector, if they are in a

similar factual situation, the Commission will consider the aid necessary and

proportionate. Otherwise,—if the beneficiaries pay less than the Union minimum

tax level set by relevant applicable Directive and for all other non-harmonized

environmental taxes—, the necessity, proportionality and their respective effects at

the level of the economic sectors concerned will be subject to an in-depth assessment under the guidelines’ objective criteria specified on paragraphs 176–180 of

the 2014 Guidelines.

Some scholars point out that the Guidelines’ provisions with respect to reductions of environmental taxes and green levies are inadequate in several respects. In

particular, they are considered to be weak regarding the necessity and proportionality criteria and rather vague, allowing much leeway to Member States.63

Besides, we can add that the concept of “environmental tax” defined in the

Guidelines—and also in the GBER—checked against the notion of “energy tax”,

demonstrates that a specific configuration is used in the field of State aid. The latter

stems from the reference to both the taxable base and the beneficial effects—from

an environmental point of view—obtained from the tax concerned. In our opinion,



61



See European Commission (2014a), para. 167–179.

See among others, European Commission (2014a), para. 48 and 168.

63

See Nicolaides and Kleis (2014). See also Nicolaides (2014), p. 164. The author states “it is (. . .)

puzzling how exemption from environmental taxes can protect the environment. Moreover, the

justification for this exemption is often based on weak reasoning”.

62



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M. Villar Ezcurra



this way of articulating the concept of “environmental tax” causes legal uncertainty,

and excludes certain energy taxes and their incentives, which fall outside environmental policies.64



3 Energy Taxes Versus Environmental Taxes

Following Article 2 (119) of the GBER and Article 1.3 (15) of the 2014 Guidelines,65 environmental tax means:

A tax with a specific tax base that has a clear negative effect on the environment or which

seeks to tax certain activities, goods or services so that the environmental costs may be

included in their price and/or so that producers and consumers are oriented towards

activities which better respect the environment.



Although most of the energy taxes can also be considered to be environmental

taxes, the concepts of ‘environmental taxes’ and ‘energy taxes’ cannot be considered two overlapping concepts. Besides, the concept of environmental taxes is not

clear-cut, different terms are used (i.a. environmental taxes, green taxes, eco-taxes,

environmental related taxes) and there are at least three different definitions of

environmental taxes both in the international and European context.66

This absence of clear-cut definition of environmental taxes leads to a large

number of practical and conceptual problems, in particular because of the legal

references to “environmental taxes” in the area of energy taxation.67 For example,

because if an “energy tax” is deemed to be “environmental” (to be understood as

defined in the legal context of State aid for environmental protection), it can be

considered compatible with the internal market on the basis of Article 107

(1) TFEU, the GBER68 and the European Commission’s Guidelines on State aid

for environmental protection and energy (2014–2020).69 Then, the exclusion of



64



See Villar Ezcurra and Wegener (2015).

There is also a common definition of “environmental protection” in both texts, in particular in

Article 2, para. 101 GBER and European Commission (2014b), para. 19. Although the definitions

are not exactly the same, their slight differences do not affect substance. In both cases, there is a

broad definition including measures addressed, among others, the fight against climate change,

sustainable and efficient use of energy and promotion of renewable energy sources. See European

Commission (2014a), para. 2 and 3.

66

See Pitrone (2014).

67

Some authors categorise these problems in two categories: “The first set of issues may in part be

attributed to the continuing difficulties in defining with any degree of real certainty the actual

scope of the concept of an “aid”. The second issue is to be attributed to the lack of transparency

which has traditionally characterised the relationship between state interventions in publicly

owned or controlled firms”. See Hancher et al. (2006), p. 458.

68

European Commission (2014b).

69

European Commission (2014a), See earlier contributions on this topic in Villar Ezcurra (2013,

2014).

65



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certain energy taxes and their incentives, which fall outside the scope of the

“environmental policies” or the “harmonized taxes” from the particular regulatory

framework, is at least, theoretically possible.

In our view, there is a need to assess whether the EU legal references to

“environmental taxes” suits the purpose and effectiveness of the special treatment

of energy taxation in the field of State aid. It may also be necessary to consider

which formula could offer better compatibility and greater efficiency in light of

State regulatory objectives, taking into account that this area is characterised by

significant litigation.70

We consider it desirable to dissociate the exclusive environmental purpose of

energy taxes from their treatment with regard to State aid. The objective would be

to evolve into a conceptual model where taxes on energy are specifically treated as

such (in line with the climate change and energy policies goals), and where tax

incentives are subject, in turn, to the same treatment as environmental protection

measures or other measures justified on grounds of protection of industrial sectors,

technology development, combating relocation or other relevant measures.



4 Some References to Landmark and Recent Cases

in the Energy Tax Field

In the history of EU State aid evolution, the case-law of the CJEU has played a

crucial role in setting up rulings to ensure compliance with EU law.

Member States’ taxes must be approached basically from the requirements of the

State aids Treaty rules as being interpreted by the CJEU. Unstable soft law affects

the exercise of tax sovereignty and State aid rules cannot be intended as a full

substitute for the positive approximation of the energy tax system of the Member

States.71 Besides, under the so-called ‘balancing test’, it is held that economic

analysis should be of a different order and purpose when it is concerned with the

actions of Member States as opposed to firms.72



70

In other words, energy taxes and energy incentives are not always able to achieve or improve

environmental protection. However, some of them may be aimed at achieving other legitimate

public policy objectives such as ensuring a competitive, sustainable and secure energy system in a

well-functioning Union energy market.

71

See Traversa and Flamini (2015), p. 330.

72

Under the balancing test, in assessing tax incentives and exemptions the Commission will

consider the positive impact of the aid (achieving the environmental protection objective, appropriate instruments, necessity and proportionality of the aid) in reaching an objective of common

interest against its potentially negative effects (such as distortion of trade and competition between

Member States). See European Commission (2005).



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It is remarkable that several landmark cases in the area of taxation, like

PreussenElektra,73 Adria Wien-Pipeline,74 British Aggregates,75 Transportes

Jordi Besora76 and Kernkraftwerke Lippe-Ems GmbH,77 or more recent cases like

Republic of Austria v. European Commission,78 deal with energy taxes or levies.

These cases represent a significant step towards the clarification of the notion of

State aid and its compatibility with the internal market. However, at the same time,

these judgments show how puzzling the topic of energy taxation is.79 Moreover,

new trends in the case-law, for example the effects-based approach, according to

which only the effect of the measure on the undertaking is relevant, and not the

cause or the objective of the State intervention, may lead to new legal issues.80

According to settled case-law, in the absence of harmonization of particular tax

provisions, Member States are not prohibited from granting tax advantages in the

form of exemptions or reduced rates, in favour of certain products or undertakings.

Indeed, tax advantages of this kind may serve legitimate economic, environmental

and social purposes81 and differential treatment of economic activities may be

justified by reference to their respective statutory and regulatory conditions.82

However, under EU State aid law, the objectives of the measure are not taken

into account. It is indeed common ground that the tax measure is examined only in



73

Case C-379/98, PreussenElektra v. Schleswag, Judgment of 13 March 2001 (EU:C:2001:160),

para. 58.

74

Case C-143/99, Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer Zementwerke

GmbH v Finanzlandesdirection f€

ur K€

arnten, Judgment of 8 November 2001 (EU:C:2001:598),

paras. 52–55.

75

Case C-487/06 P, British Aggregates Association v Commission of The European Communities

and United Kingdom, Judgment of 22 December 2008 (EU:C:2008:757), paras. 85 and 89.

76

Case C-82/12, Transportes Jordi Besora SL v Generalitat de Catalunya, Judgment of

27 February 2014 (EU:C:2014:108), paras. 32–36.

77

Case C-5/14, Kernkraftwerke Lippe-Ems GmbH v. Hauptzollamt Osnabr€

uck, Judgment of 4 June

2015 (EU:C:2015:354), paras. 48–54 and 79.

78

Case T-251/11, Republic of Austria v. European Commission (EU:T:2014:1060), Judgment of

11 December 2014 paras. 160–171.

79

As Michael Honore´ pointed out “regrettably, the Court of Justice does not offer such clarification

very often. Instead, case-law is in this field (taxation) is mostly characterized by a case-by-case

approach, with many questions left unanswered. Moreover, The General Court and the Court of

Justice often disagree on the exact scope of State aid in the area of fiscal aid, which does not make

life easier for companies and authorities trying to navigate in the State aid universe”. See Honore´

(2015), p. 308.

80

See Case C-173/73, Italy v Commission, Judgment of 22 December 2008 (EU:C:1974:71), para.

13, and C-487/06 P, British Aggregates v Commission (EU:C:2008:419), paras 85 and 89. The

effects-based approach contribute towards the policy goal of “less and better targeted aid” and is

helpful in terms of increasing the effectiveness and predictability of State aid control. See

Friederiszick et al. (2008), pp. 2 and 54.

81

Case C-148/77, Hansen jun. & O.C. Balle GmbH & Co. v Hauptzollamt Flensburg, Judgment of

10 October 1978 (EU:C:1978:173), para. 16.

82

Case C-353/95P, Tierce´ Ladbroke SA v Commission, Judgment of 9 December 1997 (EU:

C:1997:596), para. 35.



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the light of its effects (which prevail over its objectives). The CJEU has constantly

maintained that Article 107 (1) TFEU defines aids in relation to their effects and

neither economic, nor fiscal nor environmental objectives can be taken into account

for the appraisal of State aid. The question arises as to whether the objective

pursued by the tax measure could be taken into account.

In that regard, it should be noted that the commonly known as the ‘three-step

analysis’ cannot be applied in certain cases to analyse material selectivity, taking

into account only the practical effects of the measures concerned. This means that

in some exceptional circumstances, in order to apply State aids rules, it is also

necessary to evaluate whether the boundaries of the system of reference have been

designed in a consistent manner (is the levy itself the right reference system as it

was stated in Adria-Wien Pipeline?83) or, on the contrary, in a clearly arbitrary or

biased way, so as to favour certain undertakings which are in a comparable situation

with regard to the underlying logic of the system in question.84

CJEU case-law therefore seems to indicate that only the effect of the measure on

the undertaking is relevant and not the cause or the objective of the State intervention.85 Yet, in Adria-Wien Pipeline, the ecological considerations underlying the

national legislations at issue were relevant and “do not justify treating the consumption of natural gas or electricity by undertakings supplying services differently

than the consumption of such energy by undertakings manufacturing goods”

because “energy consumption by each of those sectors would be equally damaging

to the environment”.86 Similarly, in the British Aggregates case, the Court rules that

“it is appropriate to examine whether within the context of a particular legal system

that measure constitutes an advantage for certain undertakings in comparison with

others which are in a comparable legal and factual situation”.87 In some cases the

Court refers to the objectives pursued by the “system” in question whereas in others



83



The advantageous terms granted in this case to undertakings manufacturing goods were intended

to preserve the competitiveness of the manufacturing sector within the EU. Then, providing an

energy taxes rebate for an entire sector of the economy, such as the manufacturing sector, would be

regarded as entailing a State aid. See Case Adria-Wien Pipeline GmbH and Wietersdorfer &

Peggauer Zementwerke GmbH v Finanzlandesdirection f€

ur K€

arnten, Judgment of 8 November

2001 (EU:C:2001:598), paras. 52–55.

84

See European Commission (2016), para. 129 and case-law references.

85

See Case C-173/73, Italian Republic v Commission of the European Communities, Judgment of

2 July 1974, (EU:C:1974:71) para. 13, and C-487/06 P, British Aggregates Association v Commission of the European Communities, Judgment of 22 December 2008 (EU:C:2008:757) paras.

85 and 89.

86

See para. 52. The advantageous terms granted in this case to undertakings manufacturing goods

were intended to preserve the competitiveness of the manufacturing sector within the

EU. Conversely, in Stadtwerke Schw€

abisch Hall GmbH v Commission, the CJEU held that the

treatment of tax reserves for the decommissioning of nuclear power stations and the safe disposal

of nuclear waste in Germany did not constitute State aid since it was based on generally applicable

provisions allowing for the creation of reserves by all undertakings satisfying the relevant criteria,

see Case T-92/02, Judgment of 26 January 2006 (EU:T:2006:26) para. 93.

87

See Case C-487/06 P, British Aggregates Association v Commission of The European Communities and United Kingdom, Judgment of 22 December 2008 (EU:C:2008:757), para. 82.



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M. Villar Ezcurra



cases the Court mentions the objectives pursued by the “measure” in question. As it

has been observed, this can bring about different outcomes.88

Regarding the features of an “energy tax” (although based on the harmonizing

Directive of hydrocarbon taxes), the CJEU held that the concept must be related to

its legal set-up for its admission as “environmental tax”, especially in the case

Transportes Jordi Besora. Since every tax necessarily pursues a budgetary purpose,

the mere fact that a tax is intended to achieve a budgetary objective cannot, in itself,

suffices to preclude that tax from being regarded as having a ‘specific purpose’

within the meaning of article 3(2) of Directive 92/12. According to the CJEU “a tax

such as the IVMDH could be regarded as being itself directed at protecting the

environment (. . .) only if it were designed, so far as concerns its structure, and

particularly the taxable item or the rate of tax, in such a way as to dissuade

taxpayers from using mineral oils or to encourage the use of other products that

are less harmful to the environment”.89

In Kernkraftwerk Lippe-Ems case, regarding the German nuclear fuel tax,90 the

CJEU clarified that article 14(1)(a) ETD is to be interpreted “as not precluding

national legislation which levies a duty on the use of nuclear fuel for the commercial production of electricity”. The Court points out two main reasons: firstly, the

nuclear fuel that is the subject of the German Law (KernbrStG) does not constitute

an energy product’ for the purposes of the ETD and it is not, therefore, covered by

the exemption laid down in this article of the Directive. Secondly, it cannot be

applied by analogy to the nuclear fuel that is the subject of KernbrStG.91 Besides,

this case is also interesting due to the selectivity criteria analysis held by the Court.

The Court stated as follows:

methods of producing electricity, other than based on nuclear fuel, are not affected by the

rules introduced by KernbrStG and that in any event, they are not, in the light of the

objective pursued by those rules, in a factual and legal situation that is comparable to that of

the production method based in nuclear fuel, as only that method generates radioactive

waste arising from the use of such fuel.92



The arguments raised on Eurallumnia SpA case may solve the question

concerning the respective powers of the Council and the Commission in the area

of the harmonisation of legislation, on the one hand, and in the area of State aid, on

the other.93 The CJEU held that in the State aid area, the Council powers must be

88



See Micheau (2014), p. 287.

See Case C-82/12, Transportes Jordi Besora SL v Generalitat de Catalunya, Judgment of

27 February 2014 (EU:C:2014:108), para. 32.

90

See Case C-5/14, Kernkrafwerke Lippe-Ems GmbH v Hauptzollamt Osnabr€

uck, Judgment of

4 June 2015 (EU:C:2015:354).

91

See Case C-5/14, Kernkrafwerke Lippe-Ems GmbH v Hauptzollamt Osnabr€

uck, Judgment of

4 June 2015 (EU:C:2015:354), paras. 47–48 and 53.

92

See Case C-5/14, Kernkrafwerke Lippe-Ems GmbH v Hauptzollamt Osnabr€

uck, Judgment of

4 June 2015 (EU:C:2015:354), para. 79.

93

See in the Euralluminia SpA. Case C-272/1P, Judgment of 10 December 2013 (EU:C:2013:812)

and T-90/06 RENV, Judgment of the General Court of 21 March 2012 (EU:T:2012:134).

89



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interpreted and applied strictly and should not deprive the Commission of the right

to exercise its powers. 94

Finally, interesting issues on State aids and energy taxation are extensively

considered in the case T-251/11, concerning parafiscal levies in the Austrian

Green Electricity Act.95 The CJEU held that, while extra cost or additional cost

are comparable to a special tax levied on electricity, the rules governing reductions

of energy taxes under EU law cannot be applied to para-fiscal charges by analogy.96

It is important to highlight that the Court stated, in this case, that the whole

Austrian scheme is a State aid incompatible with the internal market, against the

Community guidelines on State aid for environmental protection. The Court

stressed that the exemption does not reflect harmonization at EU level regarding

taxation in the area of renewable energy.



5 Concluding Remarks

On the way to fiscal integration in Europe, harmonization of tax law did not succeed

in the field of energy taxation, except for the minimum level of taxation regarding

taxes included on the scope of the ETD. Conversely, de facto indirect tax harmonization in an effective manner has taken place through the action of the European

Commission against Member States, which—according to the Commission—

infringe the basic State aids set of rules constituting the internal market by using

tax incentives.97

Currently, the legal framework on energy taxation and State aids distinguishes

between harmonized and non-harmonized taxes. Besides, automatic aid energy

schemes in the form of tax advantages should continue, under the GBER and the

2014 Guidelines, to be subject to a specific condition concerning the proof of the

incentive effect, due to the fact that this kind of aid is granted under different

procedures than other categories of aid.98 It is also remarkable that there is not

common understanding of what constitutes or does not constitute an “environmental tax” in the 28 EU countries. Even more, we do not have a categorization of

“energy taxes” or “energy tax incentives or reliefs”.

The analysis of legal context and CJEU case-law also shows that the EU State

aid control rules of environmental and energy taxes involves a constant balance

between different goals and values. Among those goals, the most important ones



94



See Case C-272/12P, European Commission v. Ireland and others, Judgment of 10 December

2013, (EU:C:2013:812), para. 50.

95

See Villar Ezcurra (2015).

96

See Case T-251/11, Republic of Austria v. European Commission, Judgment of 11 December

2014 (EU:T:2014:1060), para. 68 and 169 and case-law referred on these paragraphs.

97

See Fantozzi (2003).

98

See Recital 20 of the GBER.



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M. Villar Ezcurra



may be environmental protection, competition and trade, and, in an indirect way,

competitiveness of national and European industries.



References

Anto´n Anto´n A, Villar Ezcurra M (2014) Inherent logic of EU energy taxes: towards a balance

between market protection and environmental protection. In: Kreiser L et al (eds) Environmental taxation and green fiscal reform: critical issues on environmental protection, vol

XV. Edward Elgar Publishing Limited, Cheltenham, pp 55–68

Boesherz D (2004) Community State aid policy and energy taxation. EC Tax Rev 12(4):214–219

Buchan D (2015) Energy policy: sharp challenges and rising ambitions. In: Wallace H, Pollack

MA, Young AR (eds) Policy-making in the European Union, 7th edn. Oxford University Press,

Oxford, pp 344–366

Council of the European Union (1998) Resolution annexed to the ECOFIN Council conclusions of

1 December 1997, O.J. No. C 2 of 6 January 1998

Council of the European Union (2015) Council Regulation (EU) No 2015/1588 of 13 July 2015, on

the application of Articles 107 and 108 of the Treaty of the Functioning of the European Union

to certain categories of horizontal State aid (codification) (L 248/1, 24.9.2015)

Ekins P, Speck S (2008) Environmental Tax Reform in Europe: energy tax rates and competitiveness. In: Chalifour NJ et al (eds) Critical issues in environmental taxation. International and

Comparative Perspectives, Vol. V. Oxford University Press, Oxford, pp 77–105

Englisch J (2013) State aid and indirect taxation. In: Rust A, Micheau C (eds) State aid and tax law.

Kluwer Law International, Alphen aan den Rijn, pp 69–86

Englisch J (2015) Energy taxation and key legal concepts in the EU state aid concept: looking for a

common understanding. Energy Tax Incentives and the GBER regime. Documento de Trabajo

Serie Polı´tica de la Competencia No. 51/2015. CEU Instituto Universitario de Estudios

Europeos Universidad de San Pablo, Madrid

European Union (2015) Withdrawal of Commission Proposals (OJ C 80/17, 7.3.2015)

European Commission (1997) Proposal of the Commission for a Council Directive restructuring

the Community framework for the taxation of energy products, Brussels, 12 March 1997

(COM (97) 30, final)

European Commission (1998) Commission Notice on the application of the State aid rules to

measures relating to direct business taxation (OJ C, 384, 10.12.1998)

European Commission (2003) Council Directive 2003/96/EC of 27 October 2003, restructuring

the Community framework for the taxation of energy products and electricity (OJ L

283, 31.10.2003)

European Commission (2005) Communication from the Commission Consultation Document on

State Aid for Innovation, Brussels, 21 September 2005, COM (2005) 436 final

European Commission (2011) Proposal for a Council Directive amending Directive 2003/96/EC

restructuring the Community framework for the taxation of energy products and electricity,

Brussels, 13.4.2011, COM(2011) 169 final, 2011/0092 (CNS)

European Commission (2013) Commission Regulation No. 1407/2013 of 18 December 2013

(OJ L 352/1, 24.12.2013)

European Commission (2014a) Guidelines on State aid for environmental protection and energy

2014-2020 (JO C 200, 28.6.2014)

European Commission (2014b) Commission Regulation (EU) No 651/2014 of 17 June 2014,

declaring certain categories of aid compatible with the internal market in application of articles

107 and 108 of the Treaty (OJ L 187, 26.6.2014)

European Commission (2015) Taxation trends in the European Union, Data for the EU Member

States, Iceland and Norway. Eurostat Statistical Books, Italy



Energy Taxation and State Aid Law



219



European Commission (2016) Draft Commission Notice of the notion of State aid (OJ C 262/1,

19.7.2016)

European Parliament and Council of the European Union (2012) Directive 2012/27/EU of the

European Parliament and of the Council of 25 October 2012 on energy efficiency, amending

Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/

EC, OJ L 315, 14.11.2012

Fantozzi A (2003) The applicability of State aid rules to tax competition measures: a process of

“the facto” harmonization in the tax field? In: Sch€

on W (ed) Tax competition in Europe. IBFD,

Amsterdam, pp 121–132

Friederiszick HW, R€oller L-H, Verouden V (2008) European state aid control: an economic

framework. In: Buccirossi P (ed) Handbook of antitrust economics. MIT Press, Cambridge,

pp 625–669

Hancher L, Ottervanger T, Jan Slot P (2006) EC State aids, 3rd edn. Sweet & Maxwell, London

Hasselknippe H, Christer Christiansen A (2004) Energy taxation in Europe: current status–drivers

and barriers–future prospects. Fridtjof Nansen Institute, Norway

Honore´ M (2015) State aid and taxation – all clear? Editorial. Eur State Aid Law Q 14(3):306–308

Jaeger T (2015) From Santander to LuxLeaks – and back. Eur State Aid Law Q 14(3):345–357

Klok J (2002) Negotiating EU CO2/energy taxation, Political economic forces and barriers.

Institute of Local Government Studies, AKF Forlaget, Denmark

Lang M (2012) State aid and taxation: recent trends in the case law of the ECJ. Eur State Aid Law

Q 11(2):411–421

Maillo J (2016) Seeking the rationale behind the current concept of Fiscal State Aid: the EC Draft

Notice and beyond. In: Pistone P, Villar Ezcurra M (eds) Energy taxation, environmental

protection and State aids: tracing the path from divergence to convergence. IBFD, Amsterdam,

pp 227–244

Micheau C (2014) State aid, subsidy and tax incentives under EU and WTO law. Wolters Kluwer

Law & Business/Kluwer Law International, Alphen Aan Den Rijn/New York

Nicolaides P (2004) Fiscal State aid in the EU: the limits of tax autonomy. World Competition 27

(3):365–396

Nicolaides P (2014) In search of economically rational environmental State aid: the case of

exemption from environmental taxes. Eur Competition J 10(1):155–166

Nicolaides P, Kleis M (2014) A critical analysis of environmental tax reductions and generation

adequacy provisions in the EEAG 2014-2020. Eur State Aid Law Q 13(4):636–649

Olsen B (2012) Gaining intergovernmental acceptance: legal rules protecting trade. In: Milne J,

Andersen M (eds) Handbook of research on environmental taxation. Edward Elgar Publishing,

Cheltenham/Northampton, pp 192–210

Pitrone F (2014) Defining “environmental taxes”: input from the Court of Justice of the European

Union. Bull Int Tax 69(1):58–64

Schlegel I (2014) The future of European energy taxes in the context of environmental policy

instruments. Carbon Clim Law Rev 8(2):115–124

Sch€on W (2012) State aid in the area of taxation. In: Hancher L, Ottervanger T, Slot PJ (eds) EU

State aids, 4th edn. Sweet & Maxwell, London, pp 321–362

Soares C (2007) Energy tax treatment of undertakings covered by emission trading. EC Tax Rev

16(4):184–188

Traversa E, Flamini A (2015) Fighting harmful tax competition through EU State aid law: will the

hardening of soft law suffice. Eur State Aid Law Q 14(3):323–331

Villar Ezcurra M (2013) State aids and energy taxes: towards a coherent reference framework.

Intertax 41(6–7):340–350

Villar Ezcurra M (2014) EU State aid and energy policies as an instrument of environmental

protection: current stage and new trends. Eur State Aid Law Q 13(4):665–674

Villar Ezcurra M (2015) Avances en la relacio´n de tributo ambientales y ayudas de Estado al hilo

de la sentencia del Tribunal General de la Unio´n Europea de 11 de diciembre de 2014.

Quincena Fiscal (14/2015): 151–181



220



M. Villar Ezcurra



Villar Ezcurra M, Wegener P (2015) Energy taxation and key legal concepts in the EU State aid

context: looking for a common understanding. Documento de Trabajo Serie Polı´tica de la

Competencia No. 50/2015. CEU Instituto Universitario de Estudios Europeos Universidad de

San Pablo, Madrid



Marta Villar Ezcurra is Professor of Tax Law at the San Pablo CEU University, Madrid, PI

Project (2004-58191-P) and Coordinator of a Jean Monnet Project (ETSA-CE Ref. 553321-EPP-12014-1-ES-EPPJMO-PROJECT), RID: 0-7484-2015.



Intellectual Property, Taxation and State

Aid Law

Ce´cile Brokelind



Contents

1

2

3

4



Purpose Statement and Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intellectual Property Rights in the Context of EU Competition Law . . . . . . . . . . . . . . . . . . . . .

R&D&I Policy: Whose Competence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

EU State Aid Law and Tax Incentives for IPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.1 Selectivity of Tax Incentives for IPR Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.2 Justification on the Ground of Economic Policy Grounds . . . . . . . . . . . . . . . . . . . . . . . . . .

4.3 IP Boxes, Harmful Tax Competition and Territoriality . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.4 Interim Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 How to Design an IPR Tax Incentive in Line with State Aid Rules? . . . . . . . . . . . . . . . . . . . . .

6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



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Abstract This contribution on Intellectual Property, Taxation and State Aid Law

investigates whether some tax incentives for Research and Development—and

Innovation (R&D or R&D&I) adopted by EU Member States are in line with the

legal framework of State Aid rules in the context of the EU policy objectives and of

article 179 TFEU. The main issue is to know whether output tax incentives such as

Patent Box regimes could be considered as selective State aid by the ECJ. The

chapter considers this issue both prior to any amendments suggested by the OECD

BEPS Action 5, and after potential implementation of the modified nexus approach.

The result of this investigation shows that some features of the patent box regimes

could trigger the application of article 107 (1) TFEU. Additionally, a notification

under the State aid modernization rules would not lead to a positive decision as

several doubts remain on how output tax incentives such as Patent box regimes

remedy the market failures for which a State aid is granted, i.e. increasing R&D&I

in the EU (and not in one Member State only).



C. Brokelind (*)

Lund University, Lund, Sweden

e-mail: cecile.brokelind@har.lu.se

© Springer-Verlag Berlin Heidelberg 2016

I. Richelle et al. (eds.), State Aid Law and Business Taxation, MPI Studies in Tax

Law and Public Finance 6, DOI 10.1007/978-3-662-53055-9_12



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