Institutional evaluation of the Commission's state aid measures against passive tax competition ; Evaluation institutionnelle des actions de la Commission en matière d'aides d'Etat contre la concurrence fiscale passive
Within the European Union, the Member States have generally retained powers in the field of direct taxation and use them to attract investment, thereby creating competition on the tax law market. In the past, this tax competition has taken the form of positive action by the Member States (e.g. introduction of favourable tax systems for certain categories of undertakings or activities) to which taxpayers responded by planning their activities. It can be seen that this tax competition has evolved in order to encompass a different form, characterised by a Member State's (too) passive attitude towards (aggressive) corporate tax planning. This contribution examines how the latter phenomenon of passive tax competition is addressed by European law and, in particular, by the rules on state aid which the Commission mobilised against it since 2013. This mobilisation has given rise to a number of criticisms that the Commission's actions imply a substantive misinterpretation of Article 107(1) TFEU and in particular of the requirement of selectivity that upsets the vertical and horizontal structure of the EU legal order. The purpose of this article is to analyse exclusively the merits of this wave of criticism and thus to assess the Commission's actions from an institutional point of view. ; Within the European Union, the Member States have generally retained the powers in the field of direct taxation and use them to attract investment, creating thus competition in the tax law market. In the past, this tax competition has in the form of positive actions by states (eg introduction of tax regimes favorable for certain categories of enterprises or activities) to which taxpayers reacted by planning their activities. We observe that this tax competition has evolved to encompass a different form, which is characterized by the (too) passive attitude of a member vis-à-vis the (aggressive) tax planning of companies. This contribution examines how this last phenomenon of passive tax competition is apprehended by European law and in ...