Trust Bloomberg Tax for the international news and analysis to navigate the complex tax treaty networks and global business regulations.
A May 31 judgment from the EU’s second-highest court sends a message that European governments have little chance of appealing government-aid decisions by alleging a short-term competitive disadvantage from staggered edicts, practitioners said.
State-aid decisions can’t merely be appealed on the grounds that similar tax breaks continue to exist in other EU countries, even if they provide a temporary advantage or disadvantage, the EU’s General Court of the Court of Justice said in the ruling.
Raymond Luja, professor at Maastricht University in the Netherlands and of counsel to law firm Loyens & Loeff in Amsterdam, told Bloomberg Tax the ruling highlights that state-aid decisions don’t have to exist in a broad, coordinated view.
“What the Court is saying with this judgment is: ’Look, we’re faster in some countries than others; we need to prioritize because we have limited resources and we focused on the Netherlands first—so be it,’” he said May 31.
The case ( T160/16) centers on the commission’s 2016 order that the Netherlands scrap legislation that exempted certain public companies, such as seaports, from the country’s corporate tax regime, while not simultaneously ordering France, Germany, and Belgium to revoke similar exemptions.
After the decision, six publicly owned Dutch port companies were required to start paying corporate income tax from Jan. 1, 2017, while their competitors in Belgium and France only had to do so a full year later, on Jan. 1, 2018, as a result of two separate state aid decisions. Belgian port companies are appealing this state aid decision before the European Court of Justice.
The appeal was made by the six Dutch seaport companies, which included the Port of Rotterdam Authority and the Amsterdam Port Authority, and was supported by the Dutch government.
Jasper Korving, senior tax manager at Deloitte Netherlands, said the arguments by the Dutch government showed it realized fully well that the corporate tax exemption for ports couldn’t be maintained.
“The entire argumentation is based on this fundamental idea: ’Yes, we can see that this constitutes state aid, but it is so unreasonable to only punish us for this, while giving more time to other countries that aren’t responding to requests for information’” from the commission, he said May 31.
“I hope that this will send a message to Brussels that countries do understand that something can be state aid. But when a relatively small sector is at stake such as the port industry, it might be advisable to say: ’OK, let’s investigate them all at the same time’ rather than taking a staggered approach,” Korving said.
A spokesman for the Rotterdam Port Authority told Bloomberg Tax in a May 31 email that the company was disappointed the Court didn’t hold up its arguments for a “coordinated approach.”
“Such a coordinated approach, in our view, would have led to one common starting date for the levying of corporate tax” on seaports in concerned member countries, Port Authority spokesman Leon Willems said. As a result, Dutch seaports have had to become liable for tax before competing ports in neighboring countries, he said.
The obligation to start paying corporate tax should apply to all European ports at the same time, he said, adding that “when this is not the case, the competitiveness of Dutch seaports is affected.”
Tthe Port of Rotterdam authority has estimated it will face an annual tax bill of 60 million euros under the new regime.
Because of the new costs, Dutch ports are likely to charge those costs onto clients and hike up their prices for storage and transshipment services. “That is a possibility,” Korving said.
So though the competitiveness of Dutch ports shouldn’t be influenced at the European level, given that Belgium and France also are being forced to subject their ports to corporate income tax, it remains to be seen what the recent state-aid decisions will mean for the competitiveness of European ports regarding their global competitors, Korving said.
“The question is: how will this change the international picture? We’ll have to see whether European seaports will have a competitive disadvantage compared to Shanghai, Hong Kong and U.S. seaports,” he said, noting that ports in these locales aren’t having to grapple with government-aid questions.
To contact the reporter on this story: Linda A. Thompson in Brussels at email@example.com
To contact the editor on this story: Penny Sukhraj at firstname.lastname@example.org
Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)