New Limits to the Concept of Selectivity: The Birth of a 'General Exception' to the Prohibition of State Aid in EU Competition Law

摘要

This paper has examined three judgments of the General Court in 2014 and a Commission decision. They have all found that the tax measures in question were not selective and therefore did not constitute state aid. In essence, they limited the scope of the concept of selectivity. The detection of state aid in tax measures has always been based on a comparison between a reference system and a measure that forms an exception to that system. The mere fact that some undertakings benefit from the exception has been sufficient to prove the selectivity of the measure. In the two Spanish cases the General Court ruled that that was not sufficient. It is also necessary to demonstrate that the exception is limited to certain undertakings. The Court has made it possible for tax authorities to avoid granting state aid if their tax measures are formed as exceptions. However, it is necessary that such exceptions are open to all undertakings. It is now possible to have such a thing as a 'general exception'.