AG Kokott’s opinion sheds light on the relationship between treaty freedoms and the state aid rules – opining that if a tax measure comprises both a breach of a treaty freedom due to non-application to cross-border transactions, and unlawful aid in relation to domestic transactions, the courts should not extend it to cross-border transactions. However, she follows the General Court in the ‘Spanish goodwill’ cases in emphasising that state aid is only present where a beneficial fiscal measure is limited to a clearly identifiable category of undertakings. The Austrian goodwill measure was not so limited and was thus not state aid. The CJEU is likely to agree. It will be interesting to see if it also agrees the same applies to the Spanish goodwill measure in the Commission’s appeals in Autogrill and Santander.
