The Recovery of the Illegal Fiscal State Aids: Tax Less to Tax More

Abstract:

The Apple case has recently shown the tax community and the public opinion that Member States may be forced to recover illegal fiscal State aids. Subject to various and sometimes complicated legal regimes, these illegal fiscal State aids designate the tax advantages that have been granted to taxpayers without being notified to the Commission, the tax advantages that have been notified to the Commission but implemented before its authorization, and the tax advantages that have been maintained after a review that conducted the Commission to decide that they are no longer compatible with the internal market.

As the goal pursued is to restore the ex-ante equilibrium and to act as if the aid violating Article 108 TFEU had never been granted, the calculation of the amount of the tax that has to be levied is sometimes complicated. And the recovery procedure can, at the very least, lead to enriching the State. Because European law recognizes few rights for the taxpayers, the financial consequences of the State’s infringement of Article 108 TFEU weigh heavily on companies that were supposed to be supported. It would be otherwise only if the Court of Justice granted them the possibility of incurring State responsibility.