Det materiella selektivitetstestet i samband med skatteåtgärder
Sammanfattning: In World Duty Free Group , the CJEU clarified that it has developed two methods in its case law for the purpose of assessing selectivity in tax measures: the three-step approach and the Gibraltar method. The three-step approach may be used when the tax measure in question takes the form of a tax advantage that derogates from an ordinary tax system. In turn, the Gibraltar method may be used when the tax measure in question does not constitute a derogation from an ordinary tax system, but is an integral part of that system. However, the CJEU’s way of reasoning in World Duty Free Group  suggests that, in order to establish selectivity, it is not necessarily essential to apply a certain method. It is essential to acknowledge that an APA may lead to a selective tax advantage either because it departs from the normal system of taxation or due to application of a State aid scheme. The former case considers granting of individual State aid, while the latter consider granting of State aid due to application of a State aid scheme. This ought to have consequences for how the selectivity test should be applied. Moreover, the methodology applied by the CJEU in P Oy  supports the view that it should always first be examined whether State aid has been granted due to application of a State aid scheme. EU State aid law aims only at correcting such distortions in the Internal market that result from granting a State aid. Consequently, in accordance with the division of competences between the EU and its Member States, it falls within Member States’ sphere of competence to take tax measures that are general, and thus do not fall within Article 107(1) TFEU. This is the case even if the tax measure in question would be classified as ‘harmful tax competition’—as long as it is not to be determined as selective. When it comes to fighting harmful tax competition and aggressive tax planning, approximation measures within the field of direct taxation would be more suitable to that end than EU State aid law. However, such measures would require that the Council decided on those unanimously.
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