EUU, Alm.del - 2020-21 - Endeligt svar på spørgsmål 1: Spm. om oversendelse af svar fra Kommissionen omtalt i ministerens svar på EUU alm. del spørgsmål 298 (folketingsåret 2019-20), til skatteministeren, kopi til udenrigsministeren

Europaudvalget 2020-21
EUU Alm.del
Offentligt

Ref. Ares(2020)4935318 - 21/09/2020

EUROPEAN COMMISSION

DIRECTORATE-GENERAL

TAXATION AND CUSTOMS UNION

Direct Taxation, Tax coordination, Economic Analysis and Evaluation

The Director

Brussels

TAXUD.D.DIR(2020)5645301 BA/IM/

Nina Legaard Kristensen

[email protected]

Dear Ms Legaard Kristensen,

I would like to thank you for the request for clarifications that your Services submitted to

the European Commission with regard to the Recommendation adopted on 14 July 2020

on making State financial support to undertakings in the Union conditional on the

absence of links to non-cooperative jurisdictions.

I would like to express the Commission’s appreciation and support to Denmark for being

amongst the first Member States to introduce rules that refuse state aid in the case of

links to non-cooperative jurisdictions for tax purposes. Putting in place an objective

mechanism to identify non-cooperative jurisdictions has been a priority of the

Commission in the last years.

Member States’ cooperation to implement this policy at

national level is essential to making this process effective.

The Recommendation is part of the Commission’s strategy for a speedy and fair recovery

in Europe. This goes hand in hand with the long-standing efforts to curb tax avoidance,

fraud and abuse and preserve the functioning of the Single Market.

I would like to confirm to you that the Recommendation represents the official position

of the Commission on the issues it deals with. All the relevant Commission Services,

including the Legal Service, contributed to the completion of this Act. As such, the

Recommendation reflects the Commission’s views on the interpretation and application

of the Union’s fundamental freedoms, as established in the EU

Treaties, and is addressed

to Member States. It does not prejudge, however, any future pronunciation of the

European Court of Justice on this issue.

Against this background and in view of your request for clarification and the arguments

that your Services brought forward, I would like to make the following comments:

(i)

Regarding the existence of an illegitimate restriction, you express the view

that undertakings should be refused State financial support only where they

are

directly

held by entities in listed jurisdictions. You thus advance the

argument that undertakings which are

indirectly

held by entities in listed

jurisdictions

–

notably, via entities of the same group in other EU Member

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

Office: SPA3 06/055 - Tel. direct line +32 229-69785

[email protected]

EUU, Alm.del - 2020-21 - Endeligt svar på spørgsmål 1: Spm. om oversendelse af svar fra Kommissionen omtalt i ministerens svar på EUU alm. del spørgsmål 298 (folketingsåret 2019-20), til skatteministeren, kopi til udenrigsministeren

States - cannot be refused the financial support. In your analysis, refusing the

financial support in such circumstances would amount to an illegitimate

restriction of the Freedom of Establishment.

A restriction of one of the freedoms presupposes that the transnational EU situation is

treated less favourably than the same situation which is entirely contained within one

Member State. The Recommendation, however, recommends Member States to treat both

the national situation

–

the Danish government granting State financial support to a

Danish undertaking held directly by entities in listed jurisdictions

–

and the transnational

EU situation

–

the Danish government granting State financial support to a Danish

undertaking held by one or more other undertakings resident in one or more other

Member States and ultimately held by entities in listed jurisdictions

–

in an identical

manner. It cannot therefore amount to a restriction of one of the Treaty freedoms.

Not to treat these situations as identical but only refrain from granting State financial

support to Danish undertakings directly held by entities in listed jurisdictions would

amount to a preferential treatment of the transnational situation which is something the

Treaty freedoms do not require.

Case C-299/02,

Commission v. Kingdom of the Netherlands,

seem to have been at the

origin of the confusion as to the compatibility of the Recommendation with the Treaty

freedoms.

In that case, the Dutch rules on ship registration imposed nationality criteria on the

director and a majority of the shareholders of the ship-owning company. There was

therefore a difference between the purely national situation where a Dutch ship owned by

Dutch shareholders is not in any way hindered by the nationality conditions and the

transnational situation where a ship to be registered in The Netherlands and owned by

foreign shareholders and managed by foreign directors may well be hindered by such

specific nationality requirements. It is therefore not analogous to the situation targeted by

the Recommendation.

(ii)

We can give an affirmative answer to your question on whether the

Recommendation applies in situations where the undertaking in question

benefits from an economic advantage even if no monies are directly paid to

such undertaking (e.g. tax exemption). Indeed, the Recommendation is meant

to apply to State support provided to companies irrespective of its form.

Regarding the point on shared ownership, we can confirm that it applies only

within the context of a group of controlled companies. More specifically, the

provision means that financial support should be refused to an undertaking

which is controlled by the same owner as another undertaking where the latter

is resident for tax purposes in an EU listed jurisdiction.

(iii)

I hope that the explanations above bring more clarity about the Commission’s views on

the issues that your Services have raised. In this regard, I would like to reiterate that the

input above is provided in the spirit of cooperation between the Commission and

Denmark. The official position of the Commission remains the full text of the

Recommendation, as approved by the College of Commissioners on 14 July 2020.

I should like to thank you once again for your firm engagement in the fight against tax

evasion and avoidance. My Services, and myself personally, remain at your disposal.

Yours sincerely,

(e-signed)

Benjamin ANGEL