State Aid Prohibition – the new GAAR in town

8 Pages Posted: 1 Jun 2021

See all articles by Joachim Englisch

Joachim Englisch

University of Muenster - Faculty of Law

Date Written: May 25, 2021

Abstract

The Engie decision of the General Court of 12 May 2021 has added a new dimension to the Union law prohibition of State aid: It can act as a pervasive substance over form doctrine without the limitation to “wholly artificial arrangements” inherent to conventional anti-abuse rules and principles of Union law. Art. 107 (1) TFEU has thus potentially become the capstone of the European anti-avoidance architecture. And while it would not come as a surprise if Engie or Luxembourg appealed the judgement, it is far from certain that the Court of Justice of the EU (CJEU) would annul it, because the General Court’s rationale is indeed well-founded in the expansionist tendencies of fiscal State aid jurisprudence of the CJEU. This short paper explores the key findings of the Court, and analyses how CJEU case law has paved the way for a “State aid GAAR”, where the Court could or should have decided differently, and the overall implications of the Engie judgement.
This paper will be published as an editorial to EC Tax Review 4/2021.

Keywords: State aid, tax avoidance, abuse, GAAR, Engie, tax rulings

JEL Classification: K34

Suggested Citation

Englisch, Joachim, State Aid Prohibition – the new GAAR in town (May 25, 2021). Available at SSRN: https://ssrn.com/abstract=3857451 or http://dx.doi.org/10.2139/ssrn.3857451

Joachim Englisch (Contact Author)

University of Muenster - Faculty of Law ( email )

Universitaetsstr. 14-16
Muenster, 48149
Germany

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