State aid policy as a tool against harmful tax competition between EU Member States

The theme of this thesis is the relationship between harmful tax competition measures and prohibited fiscal State aid. The aim of this thesis is to present a targeted examination of the use of State aid rules against national tax measures, e.g. tax schemes and tax rulings, following the adoption of the EU Code of Conduct for Business Taxation in 1997. The fiscal State aid decisions and judgments to be covered are divided in two parts. The first part includes certain Commission decisions and ECJ judgments of the (early) 2000s, which are labelled the “first wave”. The second part consists of all the recent Commission decisions and investigations into tax schemes and individual tax rulings, most notably the Apple, Fiat, Starbucks and Amazon investigations, which are labelled the “second wave”. The characteristics and common threads of each wave are set out, the similarities and differences between the two waves are dissected, and their nexus to the EU’s fight against harmful tax competition is explored. It is argued that an important factor connecting the two fiscal State aid waves is the link they share to the fight against harmful tax competition. It is also maintained that the first wave cases that were linked to this fight have substantially influenced State aid doctrine, and have also had the effect of rendering State aid rules a more effective tool against harmful tax competition by ‘weakening’ their major limitation, i.e. the selectivity requirement. This trend could continue should the ECJ endorse the Commission’s novel and creative approach in the second wave of fiscal State aid decisions, especially as regards its expansive interpretation of Forum 187 and the advantage condition of Article 107 TFEU. It is, lastly, asserted that the Commission’s novel approach is not legally sound.