Análisis del requisito de ventaja selectiva en sede de ayudas de estado de naturaleza fiscal

Abstract

Until the late 90s the legal regime of the State aids in the fiscal area was purely marginal. The application of State aids rulings found an obstacle in the direct tax system, due to the fact that this one was an exclusive competence of the Member States, governed by the rule of unanimity in the adoption of measures related to the above mentioned area. It was Mr. Monti, Commissioner of Competition in the EU, who completely changed this idea at the end of the 90s, fostering the application of the State aid rules of the TFUE (ex-TCE) to the measures related to the direct tax system, in addition to the studies on harmful tax competition developed in the OECD. The fiscal State aids were regarded as an instrument of fiscal negative harmonization. In the area of fiscal State aids, the notion of selective advantage is of great importance. This concept can be divided into three parts. First, the measure must grant an advantage to the recipient, namely, it has to make up an exception or derogation to a fiscal regime of reference, which we will name benchmark, in consequence of which it the company must receive a clear-cut economic benefit; second, the measure has to be selective, not in the traditional sense – a measure not applied to all the subjects – but in the sense of the Adria-Wien ruling: it has to apply only to the subjects that are in a comparable situation in terms of the aims of the measure; finally, the measure does not have to be justified by the structure of the fiscal system...