EUU, Alm.del - 2020-21 - Endeligt svar på spørgsmål 51: Spm. om oversendelse af korrespondance mellem EU-Kommissionen og de danske myndigheder, til skatteministeren, kopi til udenrigsministeren

Europaudvalget 2020-21
EUU Alm.del
Offentligt

Ref. Ares(2020)7624380 - 15/12/2020

EUROPEAN COMMISSION

DIRECTORATE-GENERAL

TAXATION AND CUSTOMS UNION

Direct Taxation, Tax coordination, Economic Analysis and Evaluation

The Director

Brussels,

TAXUD.D/BA/IM

TAXUD.D1(2020)8555727

Lise Winther Jensen

Special Advisor

International Coordination

Danish Ministry of Taxation

by e-mail:

[email protected]

Dear Ms Jensen,

I would like to thank you for your follow up questions on the Commission

Recommendation of 14 July 2020 regarding making State financial support to

undertakings in the Union conditional on the absence of links to non-cooperative

jurisdictions.

As for our response of 21 September 2020 to your first set of questions, I would like to

reiterate 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 follow-up questions, I would like to make

the following comments:

Article 49 TFEU prohibits

“restrictions on the freedom of establishment of nationals

of a

Member State in the territory of another Member State”.

It is therefore clear that a host

Member States cannot discriminate against persons or legal entities from another

Member State who wish to establish themselves in the host Member State, just as the

Member State of origin cannot discriminate when a person or legal entity previously

established in its territory desires to establish itself in another Member State.

A discrimination can be direct or indirect. An indirect discrimination involves treating

residents and non-residents in an equal manner, but makes it

de facto

much easier for

residents to comply with the rules.

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 51: Spm. om oversendelse af korrespondance mellem EU-Kommissionen og de danske myndigheder, til skatteministeren, kopi til udenrigsministeren

There can only be a restriction or discrimination when the party that desires to establish

itself in another Member State (the non-resident) is treated less favourably than a

resident. There is no longer discrimination if a non-resident is treated in the same manner

as a resident. In such a case, there is no violation of Article 49 TFEU.

If you bring this line of thought within the context of the Recommendation, the Act

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.

In this regard, I would like to reiterate the point made in our response of 21 September:

not treating these situations as identical but only refraining 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

(“reverse

discrimination”)

which is allowed but not required under the Treaty freedoms.

The above interpretation is of general application as it arises from primary EU law and is

in no way limited to the Recommendation of 14 July 2020 or specific aspects thereof.

We can give an affirmative answer to your request for confirmation on whether the

Recommendation applies in situations where the undertaking in question benefits from a

non-selective economic advantage. Indeed, the Recommendation is meant to cover State

support provided to companies irrespective of their form and is not limited to cases that

would potentially qualify as State Aid.

I hope that these explanations bring some more clarity to

the Commission’s views.

I should like to thank you once again for your firm engagement in actively contributing

to the fight against tax evasion and avoidance in the internal market.

Yours sincerely,

(e-signed)

Benjamin ANGEL

c.c.:

Ms Nina LEGAARD KRISTENSEN ([email protected])

Ms Lise BO NIELSEN ([email protected])

Ms Kim LUNDGAARD HANSEN ([email protected])

Ms Clare SOUTHWORTH

Mr Bernardus ZUIJDENDORP

Ms Ioanna MITROYANNI

Electronically signed on 15/12/2020 15:42 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482