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Do State Aid Rules Still Allow European Union Member States to Claim Fiscal Sovereignty?

This contribution provides an overview of the European Union (EU)’s fiscal aid regime. State aid rules impacted national tax policy from the 1960s onwards, although awareness really grew at the end of the 1990s and then again in recent years (2014– 2016). The author places the European Commission’s May 2016 guidance notice on what state aid is meant to be in the context of taxation. He also touches upon the Commission’s June 2016 Staff Working Paper on tax rulings and provides a brief overview of state aid procedure. Next he reflects on how foreign tax rules might (not) affect the net amount of tax benefits that is to be retroactively recovered in case of a finding of unlawfully granted state aid. Special attention will be given to Member State fiscal sovereignty in relation to the adoption and use of anti-tax avoidance measures, such as transfer pricing adjustments.