Tải bản đầy đủ - 0 (trang)
3 Judgment of 17 December 2015 Regarding the Spanish Tax Lease System for Shipbuilding: Analysis and Future Perspectives

3 Judgment of 17 December 2015 Regarding the Spanish Tax Lease System for Shipbuilding: Analysis and Future Perspectives

Tải bản đầy đủ - 0trang

The Recovery Obligation and the Protection of Legitimate Expectations



277



and Santusa v. Commission), passed in the Spanish financial goodwill case analysed

earlier, starts by verifying whether there was compliance with the conditions for the

existence of aid in relation to the beneficiaries of the system (according to the

decision) i.e. the investors. In particular, the Court focuses its analysis on the issue

of selectivity.

According to the European Commission, the system was selective with respect

to the investors since, in the first place, it only applied to a certain type of

investment (in vessels) and moreover, it only concerned projects that could be

selected on a discretionary basis by the Administration. In addition, it only applied

to a specific activity: bareboat chartering by EIGs. The judgment analysed and

rejected each of the arguments, applying the reasoning set out below.

1-. The alleged selectivity because the STL would only apply to investments in

vessels.

The GCEU directly applied Autogrill v. Santander in support of its finding that,

since any company from any sector and of any size may invest in vessels, the

STL could not be considered to be selective (paragraph 143). The judgment

underlined the fact that, at least with respect to investors (the alleged beneficiaries of the aid), the system was undoubtedly a general measure (paragraph

148).

2-. The alleged selectivity because the STL only applied to projects that could be

selected on a discretionary basis by the Administration.

The Court concluded that the Administration’s alleged discretion to authorise

projects only referred to the characteristics of the assets (vessels), and not to the

nature of the vessels. In addition, it found that any company from any sector and

of any size could participate as an investor in the STL (paragraph 160). In this

regard, it observed that, in fact, the identity of the investors could be changed

after the project was authorised without the need to obtain permission from the

public authority (paragraph 162).

3-. The alleged selectivity because the STL only applied to the bareboat chartering

carried out by the EIGs.

The GCEU stated that this contention would make it necessary to sustain that

the EIGs and their investors would jointly exercise this economic activity but

that the Commission said something different and, in fact, found that the

investors did not carry on any shipping activity (paragraph 175). Given these

contradictions, the GCEU identified, at least, an absolute failure to give

grounds, which led it to reject the decision for this reason too.

In short, given the above, the judgment concluded that the Commission

completely failed to show that the STL was selective in relation to the investors

(paragraph 180). Since no selectivity existed, there could be no State aid.

In addition to considering that the element of selectivity did not exist (necessary

for there to be State aid), the judgment also concluded that there was no proof that



278



J.S. Pastoriza



the STL affected trade and competition within the EU. In this regard, if the

investors operated in all economic sectors, the Commission should have explained

with at least some reasoning how the distortion of competition in such a variety of

sectors could have occurred, and it did not do so.



6.4



Effects on National Recovery Procedures



The annulment of the Decision means that it, and any acts taken in enforcing it,

cannot be relied on. Thus, since the GCEU ruling, operators are not obliged to

return any amount whatsoever.

Nevertheless, as we will see, the Commission has appealed on a point of law to

the CJEU. Thus, in the meantime the national recovery procedures should stop or, at

least, be suspended until such time as the appeal on a point of law is decided. The

appeal has been given the case number C-128/16 P. It is very likely that the CJEU’s

analysis in this case will coincide with the analysis of selectivity in the appeal on a

point of law in the financial goodwill case.

In relation to the appeal, it is worth mentioning the judgment of the CJEU of

14 April 2016 in Case C-100/15, Netherlands Maritime Technology Association

v. Commission, which rejected the appeal on a point of law brought by a European

association against the new Spanish tax lease regime. This appeal essentially

contended that although it was true that any company could have participated in

the regime in question, the Commission and the GCEU should have determined the

existence of de facto selectivity based on the type of contracts and assets used. This

argument was rejected by the CJEU, and following this judgment the approval by

the Commission of the “new tax lease” is now final and unappealable. It remains to

be seen whether the CJEU will take a similar approach in the appeal brought by the

European Commission in the case referred to above.

In conclusion, in both the STL and the financial goodwill cases, we have

observed different effects, in practice, when evaluating a possible suspension in

the enforceability of recovery decisions. Thus, for example, in cases where there

has been a negative decision and subsequent appeal to the GCEU, recovery of the

aid has not been suspended, in application of the rules and legal principles on State

aid. However, in cases where a GCEU judgment has annulled a Commission

decision, the national judges have, in practice, resisted annulling the effects of the

recovery order, which is what EU law would, in practice, require of them. In the

examples analysed, both the Spanish tax authority and the courts have chosen to

wait until the appeals on a point of law have been heard, instead of annulling

provisionally the notices requiring devolution of the aid.



The Recovery Obligation and the Protection of Legitimate Expectations



279



7 Legislative Developments in Spain as Regards

the Recovery of Fiscal State Aid

As regards procedural matters arising under EU law, a new Title VII has been added

to the Spanish General Tax Act (Ley General Tributaria or “LGT”)53 through

which the procedures to be followed for the enforcement of Decisions for the

recovery of State aid of a fiscal nature are laid down54 (recovery procedure in

cases involving the regularisation of a tax obligation, on the one hand and recovery

procedure in other cases—which do not involve regularisation—on the other). This

new Title VII of the LGT had brought Spanish legislation into line with EU law as

regards unlawful and incompatible aid in implementation of the procedural Regulation, with express mention, for example, of the specific rules on limitation periods

applicable in this regard under EU law (10 years) or the fact that the breach of the

6 month period foreseen for the procedure in article 104 of the LGT does not

determine the expiry thereof (although the limitation period will not be deemed to

be interrupted as a result of the administrative actions taking place during that

period). Any late interest payable will also be governed by the provisions of EU law

(Regulation (EC) 794/2004).

The impossibility of requesting a postponement or payment in instalments of the

debts resulting from the enforcement of recovery decisions is established. Against

the decision or calculation resulting from the enforcement decision an ordinary

appeal may be brought and, where applicable, an economic-administrative claim. In

this regard, it is stipulated that, in the event of review, suspension is only possible if

a guarantee in cash is paid into the State entity known as the Caja General de

Dep

ositos.

Finally, when a court decision detects formal defects and orders that the matter

be returned to the administrative phase, the latter must end within the period

remaining for the conclusion of the period of 4 months established in the first

paragraph or within 2 months, whichever is greater.

As mentioned, the EU legislation on the recovery of tax aid has been codified in

Spain through these legislative developments. Until now it was not specifically

legislated for. These legislative changes are probably due to the numerous State

aid cases opened against the Kingdom of Spain in recent years and attempt to

bring Spanish law into line with EU requirements as regards the recovery of

State aid.



53



Act 58/2003, of 17 December, amended by Act 34/2015, of 21 September, on the issue of

recovery of State aid.

54

On this point see Moreno Gonza´lez (2015). In particular, the draft Bill for the reform of the LGT,

this point is examined in section 4, at 20 et seq of the digital edition.



280



J.S. Pastoriza



8 Conclusions

The first conclusion to be reached is that the Commission’s decision-making

practice in relation to the time limit for the protection of the principle of legitimate

expectations is inconsistent. It would, therefore, be desirable to have greater clarity

about the criteria for applying this principle.

Second, the case law of the EU Courts on this point is not settled, although there

would appear to have been a movement towards a more restrictive application of

the principle of legitimate expectations in recent years.

More specifically as regards the recovery of State aid, it should be noted that in

Spain, in the examples analysed, we have observed different effects when evaluating a possible suspension of the enforceability of recovery decisions. Thus, in cases

of a negative decision followed by an appeal to the GCEU, no suspension of the

recovery order takes place, in application of the legislation and legal principles on

State aid. However, in cases where a GCEU judgment has annulled a Commission

decision, the national judge will in practice resist annulling the effects of a recovery

order, although under EU law it should be annulled. In the examples given in this

chapter, both the Spanish tax authority and the courts have chosen to wait until the

appeals on a point of law have been resolved, instead of annulling provisionally the

aid recovery orders.

In this regard, in some cases companies have had to give bank guarantees in

order to appeal against the recovery orders issued in enforcement of Commission

decisions (mainly in the financial goodwill case). The fact that the GCEU has

annulled the Commission’s decisions in both cases has still not led to the companies

in question being released from these bank guarantees. This situation, coupled with

the uncertain application of the general principles of EU law by the European

Commission, may cause irreparable harm to many well-managed companies. The

purpose of the recovery of State aid is to return the competition situation to that

which existed before the State intervention in question. In turn, it would be

necessary to ensure that, in application of these EU law principles, what does not

ultimately happen is that the competitive situation of the companies involved is

actually made worse.

Ultimately, in the Spanish cases problems for the beneficiaries of the measures

have arisen in two ways. First, as a result of the application of the principles of

legitimate expectations and legal certainty and second, as regards material issues

concerning the definition of the concept of aid and how selectivity is defined. The

measures were considered selective by the Commission yet the GCEU held that

they were general in nature. Greater clarity and effectiveness in the application of

this concept would also be desirable to prevent the reoccurrence of such situations

in the future.



The Recovery Obligation and the Protection of Legitimate Expectations



281



References

Barciela Pe´rez JA (2010) El principio de proteccio´n de la confianza legı´tima en el a´mbito

tributario: jurisprudencia del TJUE. Revista Quincena Fiscal 22:1–15

Buendia Sierra JL (2015) State aid and tax rulings: an appropriate way to tackle aggressive tax

planning? Tax Plan Int Eur Tax Serv 17(12):9–12

Calvo Salinero R (2015) Sentencias del Tribunal General de la Unio´n Europea de 7 de noviembre

de 2014 en los asuntos T-219/10 Autogrill c. Comisio´n y T-399/11 Santander y Santusa

Holding c. Comisio´n. Anulacio´n de las decisiones de la Comisio´n Europea que consideraban

el artı´culo 12.5. TRLIS como ayuda de Estado. In: Pra´ctica fiscal para abogados. Los casos ma´s

relevantes en 2014 de los grandes despachos. La Ley

Council of the European Union (2015) Council Regulation (EU) No 2015/1589 of 13 July 2015,

laying down detailed rules for the application of article 108 of the Treaty of the Functioning of

the European Union (L 248/1, 24.9.2015)

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

measures relating to direct business taxations, OJEU C 384, of 10.12.1998

European Commission (2002) Commission Decision of 8 May 2001 concerning State aid

implemented by France in favour of the Bretagne Angleterre Irlande company. Brittany

Ferries, OJEU L 12, of 15.1.2002

European Commission (2004) Commission Regulation (EC) 794/2004 of 21 April 2004

implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the

application of Article 93 of the EC Treaty

European Commission (2006) Commission Decision of 20 December 2006, in the aid scheme

implemented by France under Article 39 CA of the General Tax Code – State aid C 46/2004

(ex NN 65/2004), OJEU of 30.4.2007 L 112

European Commission (2007a) Press Release IP/07/1469 of 10 October 2007 – State Aid:

Commission opens formal investigation into Spain’s tax schemes for the acquisition of shares

in foreign companies

European Commission (2007b) Notice from the Commission towards an effective implementation

of Commission decisions ordering Member States to recover unlawful and incompatible State

aid (2007/C 272/05), OJ C 272, 15.11.2007

European Commission (2009) Commission Notice on the enforcement of the State aid rules by the

national courts of 9 April 2009, OJEU C 85, 09 April 2009

European Commission (2011) State aid – Spain – State aid SA.21233 (11/C) (ex NN/11, ex CP

137/06) – Tax regime applicable to certain finance lease agreements also known as the Spanish

tax lease system – Invitation to submit comments pursuant to Article 108(2), of the Treaty on

the Functioning of the European Union, OJEU C 276 of 21.9.2011

European Commission (2012) Decision of 20.11.2012, State aid SA.34736 (2012/N) – Spain Early

depreciation of assets acquired through a financial leasing, C (2012) 8252 final

European Commission (2014a) Communication from the Commission. Draft Commission Notice

on the notion of State aid pursuant to Article 107(1) TFEU

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 Text with EEA relevance

European Commission (2014c) Commission Decision of 17 July 2013, on the aid scheme

SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain. Tax scheme applicable to

certain finance lease agreements also known as the Spanish Tax Lease System, OJEU of

16.4.2014, L 114

Garcı´a Novoa C, Lo´pez Go´mez A (2014) Reflexiones sobre el Tax Lease. Paper presented in

Jornada de la Asociacio´n Espa~

nola de Asesores Fiscales, Santiago de Compostela, 2014

Moreno Gonza´lez S (2015) La recuperacio´n de las ayudas de Estado de cara´cter tributario.

Panorama actual y propuestas de futuro. Revista Quincena Fiscal (6):1–60



282



J.S. Pastoriza



Norwegian Minister Letter (2009) Letter from the Norwegian Ministry of Trade and Industry to

the Commissioner Neelie Kroes of 13 Feb. 2009. http://www.regjeringen.no/upload/NHD/

Vedlegg/Brev/kroes_090213.pdf. Accessed 27 April 2016

Villar Ezcurra M (2014) State aid and tax lease regimes in the shipbuilding industry: lessons

learned from a Spanish case. Eur Tax 54(10):439–447



Juan Salvador Pastoriza is senior associate and professor of European Taxation Law at the

Centro de Estudios Garrigues and of the Universidad Complutense de Madrid.



Tài liệu bạn tìm kiếm đã sẵn sàng tải về

3 Judgment of 17 December 2015 Regarding the Spanish Tax Lease System for Shipbuilding: Analysis and Future Perspectives

Tải bản đầy đủ ngay(0 tr)

×