Cases C-106/09P and C-107/09P European Commission v. Government of Gibraltar and the United Kingdom
| Author | Olivier Van den Broeke |
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| DOI | http://doi.org/10.1177/1023263X1201900309 |
| Subject Matter | Case Note |
19 MJ 3 (2012) 447
CASE NOTE
Cases C-106/09P and C-107/09P European Commission v. Government of Gibraltar
and the United Kingdom
Olivier Van den Broeke*
§1. IN T RO DUCT ION
Article107 TFEU provides that a id granted by a Member State ‘in any form whatsoever’
which distorts compet ition by favouring certai n undertak ings or the production of
certain goods sha ll be incompatible with t he internal market. is mea ns that di rect
taxation, alt hough falli ng within t he ambit of Member States’ scal autonomy, cannot
escape scrutiny i n light of the EU rules on st ate aid. Indeed, it is irrelev ant whether the
measure is a tax me asure, since Ar ticle107 TFEU applies to aid mea sures ‘in a ny form
whatsoever’.
To be termed aid, four cumulative criteria must be ful lled.1 e main criterion
identi ed by the Commission was the selectivit y or speci city criterion. is implied
that a measure is speci c or selective if it ‘favours certa in undertaki ngs or the production
of certain good s’, unless it can be justi ed by ‘t he nat ure or gene ral sche me of t he sy stem ’.
erefore, the common tax system needed to be as certained in order to deter mine
whether the measu re provided an exception to the application of the ta x system in favour
of certain undertakings.
Over the years, this de nition of selectivity has la rgely survived. However, there
have been some signi cant developments in a ssessing the selectivity of a t ax measure.2
In analysing t he selectivity of a me asure it is now necessary to a scertain t he relevant
reference fra mework rst. In this light, it must be determined wh ich undertakings are
* Student-researcher 2011–2012, Research Group Bu siness & Law, Law Faculty, Antwer p University.
1 Notice of the Comm ission on the applicat ion of the state aid ru les to measures rel ating to direc t
business ta xation, [1998] OJ C 384/3. A report on its implementation has a lso been issued, namely in
2004: COM (200 4) nal 434.
2 A er the 1998 notice, t he material sele ctivity a ssessment has evolved (sig ni cantly) in the CJEU’s
judicature. e main evolution can be fou nd chronologica lly in the follow ing cases: C ase C-143/99
Adria Wien Pipe line [2001] ECR I-8365; Case C-4 87/09P British Aggregates Association [20 08] E CR
I-10505; Case C-279/08P Dutch Nox [2008] ECR II-591; and the Cases C-106/09P and C-107/09P
Commission v. Gover nment of Gibraltar.
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