Skatteudvalget 2021-22
SAU Alm.del
Offentligt
2510586_0001.png
Ref. Ares(2021)5765922 - 21/09/2021
Offentligt
Europaudvalget 2021-22
EUU Alm.del - endeligt svar på spørgsmål 33
Offentligt
EUROPEAN COMMISSION
DIRECTORATE-GENERAL
TAXATION AND CUSTOMS UNION
Direct Taxation, Tax coordination, Economic Analysis and Evaluation
The Director
Brussels, 21 September 2021
TAXUD.D/BA/IM
TAXUD.D.1(2021)6525683
Ms Lise Bo Nielsen
Head of Corporate Tax
Danish Ministry of Taxation
by e-mail:
[email protected]
Subject:
Follow up on the Commission Recommendation of 14 July 2020 on
making State financial support to undertakings in the Union
conditional on the absence of links to non-cooperative jurisdictions –
your email of 31 August 2021
Dear Ms Nielsen,
I would like to thank you for your third set of 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 responses of 21 September and 15 December 2020 to your first
and second set of questions respectively, 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 request for clarification and the arguments
that your Services brought forward, I would like to make the following comments.
Regarding the existence of an unlawful 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 States - cannot be refused the financial support. In your
analysis, refusing the financial support in such circumstances would amount to an
unlawful restriction of the Freedom of Establishment.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: SPA3 06/055 - Tel. direct line +32 229-69785
[email protected]
SAU, Alm.del - 2021-22 - Endeligt svar på spørgsmål 155: MFU spm. om muligheden for at nægte udbetaling af hjælpepakker til firmaer i skattely, til skatteministeren
In support of this view, you make reference to a list of judgments by the Court of Justice
of the European Union (ECJ) in the field of ‘restriction’ on the fundamental freedoms
and you draw a distinction from the concept of discrimination. You argue that
“even
national measures which do not imply a difference in treatment (“discrimination”)
between purely internal situations and cross-border situations can be considered as a
restriction of the freedom of establishment.”
You also quote the recent case C-71/20, VAS Shipping ApS of 8 July 2021 where the
ECJ confirmed in point 22 that the term ‘restriction’
“should be understood as measures
which, although applied without discrimination on grounds of nationality, may make it
more difficult or less attractive to exercise the freedom of establishment”.
We can agree that the notion of a direct tax restriction goes beyond a mere discrimination
on the grounds of nationality and covers measures providing for a difference in treatment
between domestic and cross-border activities, where the cross-border situations/activities
are treated less favourably. We would also wish to clarify that this line of thought has to
be placed within the contours of the concept of the Freedom of Establishment. In a
situation where the link to an EU listed jurisdiction involves indirect ownership, the right
of establishment of one (or more) EU-resident entity, which is interposed between the
Danish beneficiary (‘interposed entity’) and the entity in the EU listed jurisdiction, is not
affected. This is because
the criterion of exclusion from the State financial support in
Denmark is not the place of residence of the interposed entity but the residence of
the ultimate beneficial owner, i.e. of the entity in the EU listed jurisdiction.
The latter
being outside the EU, the Freedom of Establishment is out of scope. It follows that the
concept of ‘restriction’, as analysed and delineated by the ECJ is not applicable within
this set of facts. It would have been applicable if the exclusion from financial support
were contingent upon conditions linked to characteristics and circumstances associated
with any EU-resident interposed entities (which, for instance, is the case in C-299/02,
Commission v. Kingdom of the Netherlands).
Furthermore, it should also be noted that the one (or more) EU-resident interposed
entity/entities would itself/themselves not be eligible for the financial support in its/their
own Member State of establishment in accordance with the Commission’s
Recommendation. In other words,
none of the EU-resident entities in the chain of
control between the Danish beneficiary and the entity in an EU listed jurisdiction is
eligible for the financial support in their respective Member State. This cannot be
seen as a restriction on the right of establishment of these interposed entities in
Denmark.
Finally, even if nevertheless the ECJ found a restriction, this would be justified by the
need to ensure fiscal supervision and prevention of tax evasion and money laundering in
connection with jurisdictions that have failed the EU listing criteria and therefore suffer
fundamental failures in the fields of tax transparency and harmful tax competition.
We sincerely hope that the above points clarify your doubts in connection with the
Commission Recommendation of 14 July 2020.
You also addressed a second question, which involves whether the Commission’s
interpretation of the notion of ‘restriction’ on the Freedom of Establishment is limited to
the issues covered by the Recommendation or should be understood as applicable in all
contexts. Although the principles that permeate the fundamental freedoms are common,
as a matter of principle, in all fields of the single market, it is obvious that these have to
be interpreted in line with the features of each policy area where there is EU law.
2
SAU, Alm.del - 2021-22 - Endeligt svar på spørgsmål 155: MFU spm. om muligheden for at nægte udbetaling af hjælpepakker til firmaer i skattely, til skatteministeren
2510586_0003.png
I hope that the explanations above bring more clarity to the issues that your Services have
raised. In this regard, I wish 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.
Yours sincerely,
(e-signed)
Benjamin ANGEL
c.c.:
Ms Lise WINTHER JENSEN ([email protected])
Ms Kim LUNDGAARD HANSEN ([email protected])
Ms Kristina ELLEGAARD RASMUSSEN ([email protected])
Ms Jasna VOJE
Mr Bernardus ZUIJDENDORP
Ms Ioanna MITROYANNI
3
Electronically signed on 21/09/2021 12:43 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482