Commission Finds French Tax Break Contrary To State Aid Rules
By by Ulrika Lomas, Tax-News.com, Brussels
19 December 2003

As a result of a study launched in August 2002, the European Commission has found that a special tax regime applied in France for the acquisition of failing companies is incompatible with the EU’s state aid rules as laid down in the Treaty as it does not guarantee that the aid is proportionate with the investment necessary to rescue the firm.

In a statement, the Commission explained the reasoning behind the decision:

"The special tax regime applicable in France to takeovers of ailing companies under Article 44f of the General Tax Code provides for total exemption of profits for a period of two years in the case of companies newly set up to take over the assets of companies which have been, or are about to be, wound up. To qualify for this exemption, the takeover must involve a company the transfer of which has been ordered by a court or which is on the brink of insolvency. Moreover, under Articles 1383 A, 1464 B and 1464 C of the General Tax Code, companies exempted from corporation tax under Article 44f may also be exempted from trade tax ("taxe professionnelle") and property tax ("taxe foncière") for two years. The Commission was not notified in advance of this regime, which has been in force since 1989."

"In its decision the Commission takes the view that the French tax regime cannot be treated as a general measure because it applies only to newly established companies which meet certain conditions (industrial activity, takeover of the assets of bankrupt or ailing companies). It should be noted that in its 1996 judgment on Basque tax holidays the Court of First Instance endorsed the Commission's approach whereby measures granted to newly established companies are selective. The approach in this instance is not, therefore, new. Given that the regime constitutes state aid, its compatibility was examined in the light of Article 87(3) of the Treaty."

"The Commission considers that the regime cannot be authorised under the provisions concerning aid for the rescue and restructuring of firms in difficulty since it does not guarantee that the aid granted is limited to the strict minimum required to rescue or restructure the company in question in accordance with the relevant rules. Given that it takes the form of exemptions from corporation tax, the amount of aid depends solely on the company's ability to generate profit."

"Lastly, given that the regime is not limited to small and medium-sized companies, the Commission takes the view that it cannot be approved under the Council Regulation on state aid to small and medium-sized enterprises."

"Having concluded that the regime is incompatible with the state aid rules, the Commission has ordered its abolition and the recovery of incompatible aid granted within that framework. However, since the amount of aid received depends mainly on the recipient's profit-generating capacity, the Commission does not rule out the possibility that recovery may not be necessary in certain specific cases."

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