Progressive turnover-based tax systems and EU state aid law: Case C-562/19 P Commission v Poland and Case C-596/19 P Commission v Hungary

In Commission v Poland (C-562/19) and Commission v Hungary (C- 596/19) the Court of Justice of the European Union ruled that progressive tax systems based on turnover do not by definition provide selective advantages to undertakings with lower turnovers in violation of EU state aid law. The European Commission had declared a Polish tax on retailers and a Hungarian tax on advertisement incompatible with Article 107(1) TFEU because the progressive, turnover-based taxes favoured undertakings with smaller turnovers over those with larger turnovers. The General Court annulled both Commission decisions because such advantages were inherent to the content and objectives of the general tax system, which was for Poland and Hungary to define. The Court of Justice dismissed the appeals by the Commission, affirming that Member States are free, in line with their fiscal autonomy, to opt for a progressive and/or turnover-based tax system. While turnover-based corporate taxation may have market-distortive effects, the Court was right to dismiss the Commission’s appeals. The principles of fiscal autonomy and legal certainty require an assessment of selectivity in light of Member States’ own definition of the content and objectives of their tax systems.