稅務中國家援助條款的運用
The State Aid Provisions of the TFEU in Tax Matters
這篇主要是之前三篇國家援助的總結，摘自Lang的Introduction to European Tax Law on Direct Taxation的第四章，撰寫者是Alexandra Miladinovic. 歐盟國家援助與稅務相關的問題中很大一部分是轉移定價，比如蘋果(Ireland)和星巴克(The Nertherlands)案，所以對State aid的清晰理解是非常重要的。
Chapter 4 – The State Aid Provisions of the TFEU in Tax Matters
Alexandra Miladinovic
目錄
I. Background to the EU Prohibition of State Aid 1
II. The Code of Conduct 2
III. The Application of the Prohibition of State Aid in Tax Matters 3
IV. General Issue Raised by the Application of State Aid in Tax Matters 3
A. The Prohibition of State Aid and Direct Taxation. Harmonization of Direct Taxes through the Backdoor? 3
B. The Prohibition of State Aid and Indirect Taxation 4
V. The Prohibition of State Aid under Art.107(1) TFEU 5
A. Undertaking 5
B. Advantage 5
C. State Origin 6
D. Selectivity 6
E. Distortion of Competition and Effect on Trade 7
VI. Exemptions from the Prohibition of State Aid under Art.107(2) and (3) TFEU 8
A. Legal Exemption under Art.107(2) TFEU 8
B. Discretionary Exemptions under Art.107(3) TFEU 8
VII. De minimis Limitation and Genral Block Exemption Regulation 9
VIII. The State Aid Control System under Art.108 TFEU 9
A. Overview of the Procedural Aspect of State Aid 9
B. The Procedural Treatment of Existing Aid 10
C. The Procedural Treatment of New Aid 11
D. The Formal Investigation Procedural under Art.108(2) TFEU 12
E. The Consequences of Unlawful Aid 12
IX. Overview of the Procedural Treatment of State Aid 14
I. Background to the EU Prohibition of State Aid
Para.303, competition policy was developed to ensure fair competition, proper functioning of markets, competitive economy.
Art.107(1):
Para.304, 4 cumulative conditions: 1) confer and advantage 2) state resource 3) selectivity: certain undertakings or the production of certain goods 4) affect competition and trade between MS
Para. 305, 運用primary law「禁止國家援助」來解決稅收問題。除此以外，也用soft law比如communications, notices, non-binding instruments來tackle harmful tax competition, promote good governance, combat corporate tax avoidance. 最相關的soft law是，Notice on the Notion of State Aid ，解釋更清晰
Para.306, 講這個Notice on the Notion of State Aid比之前的範圍更廣，解釋更清晰
Para307, 禁止國家援助的目的有兩個：1) 防止公共資源的浪費 2) 它防止了有效的私人投資被擠出市場
Para.308, 但是國家援助不是隻有負面現象。Public intervention is fully justified. Target market failure, complement private spending. 當市場沒有辦法公平地提供貨物和服務時，國家援助時有用的。「好的援助」需要被允許如果市場不能提供更好的替代品，並且它會誘導它的受益者去承擔它們本沒有必要承擔的經濟活動。所以才會有art.107(2)(3)
Para.309, 委員會對成員國頒布國家援助起到首要批准的作用。首先證明，如果不是state aid的話，該受助對象不能夠在內部市場生產該goods or service. 如果委員會不批准，成員國不可以將這項國家援助生效。委員會的決定遵從General Court和ECJ.
II. The Code of Conduct
Para.310, code of conduct for business taxation構成了一個重要的soft law, 來preventing harmful tax competition. 它沒有法律的約束力not legally binding，是一個成員國的政治承諾political commitment. State aid和Code of Conduct may apply in parallel, 也就是說，一項稅收舉措可能在Code of Conduct下解釋成有害的，但是不影響它作為一項State Aid.
Para.311, the code of conduct concerns measures affecting the location of business activity. A group of companies也算，所以也會受到影響。那些和其他相關成員國相比，使用低稅率、零稅率，都對code of conduct算是有害的。
Para.312, 判斷一項稅收措施是否違反Code of Conduct:
1) 這個優勢不會影響國內稅基
2) 這個優勢有沒有涉及實質性的經濟活動
3) 跨國集團公司是否遠離國籍認可的準則，e.g. OECD
4) 這些稅收措施是否缺乏透明度，法律、行政層面
Para.313, code of conduct可以起到不採用有害的新稅收措施 (standstill obligation), 重新檢驗現存法律和措施，並儘快消除有害措施 (rollback obligation). State aid和code of conduct有一些範圍看上去是非常相似，但是在法律結果上會非常不同。
III. The Application of the Prohibition of State Aid in Tax Matters
Para.317, 在稅務事項中，典型的state aid is granted via legislation. 有in an abstract way (general state aid), 也有targeted measures individually address particular taxpayers (targeted state aid). 最近，有從general state aid 到 targeted state aid 轉變的傾向。
Para.318, 盧森堡稅務局稅務裁定事項，有關集團內部轉移定價被認定為arm』s length獨立交易，所以是合法的。
Para.319, 對 「Luxembourg Leaks」/」LuxLeaks」進行調查， 包括比利時、愛爾蘭、荷蘭、盧森堡。這些案子構成了非法state aid.
Para.320, OECD Transfer Pricing Guidelines 「is unlikely to give rise to State aid」.
Para.321, the commission』s decision in the transfer pricing cases have been heavily criticized both from a legal and political perspective. 委員會在轉移定價案子中的決定，從法律和政治角度嚴重指責了它。並且委員會認為，ALP原則在《歐盟運作條約》第107(1)中就有體現。
Para.322, 「LuxLeaks」 and BEPS project, 委員會提出了a tax transparency package to fight tax evasion and avoidance. 它包含了mandatory automatic exchange of tax rulings and country-by-country reporting to enhance transparency in the field of transfer pricing.
IV. General Issue Raised by the Application of State Aid in Tax Matters
A. The Prohibition of State Aid and Direct Taxation. Harmonization of Direct Taxes through the Backdoor?
Para.323, 成員國不想要放棄他們在直接稅收方面的主權，直接稅不像被統一的間接稅-增值稅、關稅那樣，直接稅徵稅許可權保留在各個成員國內。直接稅非常達成一致，但是各個成員國仍然需要尊重歐盟的原則，不能以稅收主權唯由忽視歐盟法，尤其是國家援助這塊。
Para.324, 越來越關注企業稅中識別援助。國內法如何限制成員國想要保留的稅權。因為這個原因，委員會嚴重批評擴大MS的competence。有個論點被討論過，其實直接稅暗中因為這個競爭法而被統一了。
Para.325, 為了保證競爭，《歐盟運作條約》art.116有一個legal competence, 允許理事會通過majority vote來解決成員國的competence，來消除扭曲競爭。但是，this legal basis沒有在稅法領域被使用過。
B. The Prohibition of State Aid and Indirect Taxation
Para.326, 之前國家援助的重點在direct business taxation，現在開始也關注indirect taxation.
Para.327, 因為間接稅在歐盟內基本上被統一了，最重要的問題變成了extent to which a measure can be attributed to the State. VAT, excise taxes都已經被統一了。當一國遵從歐盟法將其轉化為國內法時，這不會構成國家援助。只有當歐盟法給成員國自由裁量權的時候，成員國才對相關措施負責，這個時候國家援助就可能出現。
C. The Prohibition of State Aid and the Fundamental Freedoms
Para.328, the prohibition of state aid is to ensure that free competition in the internal market is not distorted. state aid: ensure MS do not provide selective advantages to certain undertakings to the detriment of others. Fundamental freedoms: remove barriers to free movment of persons, services, goods, capital.
Para.329, prohibition on state aid is much broader than that of the fundamental freedoms. Fundamental freedoms prohibit discrimination of cross-border activities. State aid prohibition also applies in purely domestic situations. 其實，fundamental rights和prohibition of state aid是硬幣的兩面，比如說，將居民納稅人置於更優位置的措施，不會是fundamental freedoms, 而可能是state aid.
Para.330, 但是，即使歐洲委員會通過了一項國家援助，不代表它不和fundamental freedoms衝突。
Para.331, 如果一個國家措施同時full wihthin the scope of the fundamental freedoms and prohibition of state aid確實會有問題產生。兩者的legal consequence是相對的：state aid consequence where the beneficiaties』 advantage is removed and neutralized, the primacy of fundamental freedoms may force MS to extend the application of the more advantageous rule to all taxpayers. 這個矛盾還沒解決。
Para.332, 「severability test」: elements of state aid leading to preferential treatment - 國內商品用state aid不用fudamental freedoms.
Para.333, severability test可以用，但是fundamental freedoms和state aid prohibition之間的相互作用還是不是分得很清楚。it could be questioned whehter approval of an aid measure may constitute a proper justification ground based on the rule of reason.
V. The Prohibition of State Aid under Art.107(1) TFEU
4 conditions to constitute state aid: 1) grant an advantage 2)out of state resources 3)particular undertakings on a selective basis 4)distort competition and affect trade. Undertaking 也需要注意。
A. Undertaking
Para.335, the prohibition of state aid applies only when the beneficiary is engaged in economic activities. 什麼是economic activity? An economic activity is any activity consisting in offering goods and services on a given market.
Para.336, economic activity is carried out directly in a given market, 也可以indirectly carried out by an entity exercising control over an operator who is directly engaged in the market. 所以，只持有股份的話，不算undertaking. 但是，如果是controlling entity exercises its control by being directly or indirectly involved in the management of the controlld undertaking, 這個controlling entity可以被認為參與後者的經濟活動，是一個undertaking. 所以這裡的重點是，到底有沒有economic activity.
Para.337, NGO或者public enterprises也可以是這種undertaking，只要他們參與經濟活動。
Para.338, art.106(2) TFEU是有關public enterprises的state aid prohibition. 有Services of general economic interest or having the charater of a revenue-producing monopoly的undertaking，是state aid. art.106(2) TFEU是 state aid prohibition的限制。這個限制不能affect the development of trade that will be contrary to the interest of the Union.
Para.339, tax privileges or other benefits granted to private persons, non-profit organization and public enterprises that do not engaged in economic activity are not covered by art.107(1) TFEU. 簡單來說，只要沒有經濟活動，就不會構成state aid.
B. Advantage
Para.340, aid is an advantage or benefit that improves the economic ot financial situation of an undertakning. 並且，an economic advantage是這樣的，如果不是因為國家幹預，光靠市場機制的話，不會得到。
Para.341, aid不看形式看影響。不一定是subsidy，也可以是其他形式，只要對她financial improes. 可以是direct payments, state guarantees, prositive aid (benefits), negative aid (tax exemptions)等
Para.342, fiscal state aid typically is granted in the form of negative aid - indirect grant of aid.
Para.343, tax advantages: reduction of tax base; a total or partial reduction in the amount of tax; deferment of tax collection, cancellation or special rescheduling of tax debt
Para.344, a refund of taxes unduly collected does not constitute state aid. Obligations on national authorities to compensate for damage they have caused to certain undetakings也不是state aid，因為不算是advantage
Para.345, 這幾年法律體系的趨勢愈加將advantage和selectivity兩個條件放在一起看，變成selective advantage.
C. State Origin
Para.346, the advantage granted directly or indirectly financed by State resources and imputable to the MS. A measure needs to be attributed to a MS.
Para.347, a loss of tax revenue is equivalent to consumption of state resources in the form of fiscal expenditure. Tax relief is a burden on the public budget. Tax benefits are always granted from state resources. Moreover, tax measures are usually the responsibility of national authorities, the advantage stems from state intervention and the condition of imputability is satisfied.
Para.348, a tax measure cannot escape categotization as aid where the beneficiary is subject to a specific additional or differet charge that is unconnected with the aid. Positive overall effect on budget revenue is not sufficient to rule out the condition of financing through state resources.
D. Selectivity
Para.349, the main criterion is selectivity: certain undertakings or the production of certain goods. Target group that benefits from the measure whilst other economic agents do not.
Para.350, 「certain undertakings」: a measure is also selective when its eligibility criteria set a group of beneficiaris apart from other economic agents based on common features, with the result that they are excluded from receiving th same benefit.
Para.351, 比如說，certain sectors of the economy (sectorial aid), certain business functions witihin a branch (horizontal aid), public undertakings carring out an economic activity, large or multinational companies, exporters, sectors that are subject to international competition, offshore companies, non-resident companies providing certain services within a group
Para.352, a selective advantage may be provided through tax provisions of a legislative, regulatory, administrative nature, or as a result of a discretionary practice in the part of the tax authorities. 所以， the misapplication of a tax provision by the tax authorities to the advantage of a tax payer 構成selectivity.
Para.353, advance pricing agreements or tax rulings are not considered to be selective, only because they are obtained on an individual basis.
Para.354, different types of selectivity. Maetial and regional selectivity. De juere and de facto selective measures. Measuers are de jure selective if the different treatment is based on formal criteria laid down in national legislation. De facto selectivity exists where a measue is selective in its effect even though it applies on the basis of apparently objective and general legal term.
Para.355, selectivity test – general and selective mesures; derogation test – material selectivity (3 steps): 1) common or normal tax system is identified. 2) whether the tax measure at issue devaites from the 「normal」 tax system 3) whether the derogation or differentiation within that system may be justified by the nature or general scheme of the tax system
Para.356, the application of the 3-step test determing a benchmark identified based on which treatment or derogation can be estabished.
Para.365, selectivity的定義正在轉變，making the distinction between generla measures and selective measures more difficult in practice. 並且，an advantage is not selective if it is not directed at a particular category of undertakings but rather at a particular type of transaction. The selectivity criterion can be satisfied even where the measure is available to all undertakings and its application only depends on the choice of undertakings to perform the transaction concerned.
E. Distortion of Competition and Effect on Trade
Para.366, a tax measure is considered state aid only if it is a cause of distortion of competition that affects trade between MS. 2 criteria
Para.367, Actual, potential, distortions of competion that are liable to affect trade. MS have to inform the Commission in advance of any plans to grant ot alter state aid, which requires commission to make a decision before the real effects of an aid. Sufficient that the aid be capable of distorting competition or affecting trade.
Para.368, competition is considered distorted and intra-EU trade affected if the aid strengthens the competitiveness of the recipient.
Para.369, 上述這種aid may influence trade between MS by reducing the opportunities for undertakings from other MS to penetrate the domestic market. Enable undertaking to penetrate the markets of other MS in the future.
Para.370, whenever aid is granted by a MS to certain undertakings, these two criteria are fulfilled. 所以, these conditions一般不會被委員會全面檢查，CJEU也是assume他們符合了state aid的要求。
Para.371, comaprable or rival tax rules in other MS possibly distorting competition or affecting trade is not relevant in the assessment of state aid. Each measure must be assessed individually in the context of the tax system of the state concerned.
VI. Exemptions from the Prohibition of State Aid under Art.107(2) and (3) TFEU
Para.373, the granting of an aid is not automatically contrary to the TFEU. Exceptions must be contrusted narrowly.
A. Legal Exemption under Art.107(2) TFEU
Para.374, aet.107(2) TFEU specifies 3 instances in which aid is automatically compatible with the internal market (legal exemption).
Social character; natural disasters or exceptional occurences; federal repulic of germany – such aid is required to compensate for economic damages
Para.375, social aid, the beneficiaries are lower income groups that need financial support
Para.376, natural disasters or exceptional occurrences, it is necessary that the aid be granted to beneficiaries suffering from substantial and unpredictable circumstances that are out of the ordinary
Para.377, 以上這些aid, it is definately compatible with the internal market and automatically exempted from the state aid prohibition. 但是這不意味著成員國沒notify the Commission.
B. Discretionary Exemptions under Art.107(3) TFEU
Para.378, art.107(3) TFEU defines 5 instances in which state aid may be compatible with the internal market. State aid is not automatically exempted but may be authorized by the Commission.
VII. De minimis Limitation and Genral Block Exemption Regulation
Para.383, de minimis aid is not state aid within the meaning of art.107, since the amount is considered to be too low to have an effect on trade or competition in the internal market.
Measures will be exempt from the notification requirement if the total amount of aid granted by a MS to a single undertaking does not exceed EUR 200000 over any period of 3 fiscal years.
Para.384, several eceptions.
1) the ceiling of the de minimis exemption is higher with regard to undertakings providing services of general economic interest and lower for undertakings performing road freight transport for hire or reward.
2) some sectors, such as agricultural and fishery deduction, are exluded from the de minimis exemption.
3) export-related activities
Para.385, 儘管不用notify，但是還是有義務要履行。
Para.386, transparency, euqal treatment, effective monitoring. De minimis limitation applies only to aid in respect of which it is possible to calculate precisely gross grant equivalent ex ante using market interest rates without the need to undertake a risk assessment (transparent aid)
Para.387, General Block Exemption Regulation (GBER), certain categories of aid compatible woth the internal market and exempting them from the notification requirement if particular conditions are fulfilled: aid in favor of SMEs, R&D, environmenntal protection, employment, training and regional aid.
Para.388, GBER, without prior authorization. 目前，95% of all MS aid measures are implemented under the GBER. The GBER rules for environmental tax reductions are of major relevance in the field of tax law.
Para.389, measures that fall under the GBER can be implemented directly, without prior approval. The GBER conditions are interpreted very strictly. 但是，如果GBER condition沒有達到，不意味著 the measure is incompatible state aid， 它只意味著notification obligation applies.
VIII. The State Aid Control System under Art.108 TFEU
A. Overview of the Procedural Aspect of State Aid
Para.390, article 108 TEFU provides for the procedural rules of the EU State Aid control system. Under this system, a clear distinction has to be made between existing aid and new aid. This differentiation is of great relevance as Art.108 TFEU provides for different procedures for these two categories.
Para.391, existing aid is aid that was in operation before the establishment of the EU or before the date the MS concerned acceded to the EU.
Para.392, existing state aid, only a pro futuro monitoring procedure of the Commission under art.108(3) TFEU takes place. A negative decision concerning existing aid, is directed at the future and obliges the MS to stop granting the aid that was previously accepted.
Para.393, new aid means all aid that is not existing aid. Aid that is introduced after a MS』s accession to the EU is new aid. New aid, a stricter state aid procedure applies. Art.108(3) TFEU provides for the prohibition of implementation or a standstill obligation, meaning that the MS』s authorities and courts may not implement the intended measures prior to the Commission』s approval.
Para.394, the purpose of this preventive review procedure for new aid is to enable the Commission to evaluate measures before they are implemented to prevent undesirable burdens on the internal market.
Art.108(2) TFEU and the Procedural Regulation provide for a formal investigation procedure that is to be started by the Commission if the suspicious of State aid still exists after a preliminary investigation.
B. The Procedural Treatment of Existing Aid
Para.395, art.108(1) TFEU, existing aid falls under the regime of constant review by the Commission. MS have to submit annual report on all existing aid schemes. Estimation of the budgetary revenue lost. Existing aid may be implemented as long as the Commission has not found it to be incompatible with the internal market. (repressive monitoring system)
Para.396, commission considers that existing aid is not compatible with the internal market, it may propose any appropriate measures required, which is not legally binding, preliminary to the formal investigation procedure.
Para.397, individuals can propose an investigation procedure be initiated. 但是，they have no right to claim the initiation of a formal investigation procedure under art.108(2). 並且，如果commission開展了調查程序發現現存援助和內部市場不協調，this negative decision only has effect for the future. 如果MS繼續使用和內部市場不協調的國家援助，a request for recovery is possible.
C. The Procedural Treatment of New Aid
Para.398, 對於新的援助來說，the procedural demands are higher. Art.108(3), MS must inform the Commission of any plans to grant or alter new aid (notification obligation). 這個notification obligation範圍比較廣，any measure that creates the suspicion of State aid.
Para.399, the notification has to take place in a timely manner so that the commission can decide on the measure before it is put into effect. 所以， 只要commission沒有宣佈這項措施和內部市場兼容，它就不可以被實施 (prohibition of implementation). This standstill obligation is provided for in Art.108(3) TFEU and is effective during the whole investigation procedure until the final decision is made.
Para.400, 如果那項援助is implemented without prior notification, it is at least formally illegal. Measures potentially constituting state aid should be notified to the Commission before their legal adoption in the respective MS.
Para.401, exceptions to the notification requirement. De minimis aid, aid covered by the GBER, aid granted on the basis of an authorized aid scheme.
Para.402, standstill obligation in art.108(3) is directly applicable in the MS, conferring rights on individuals that the national courts are bound to safeguard.
Para.403, if the national court has doubts whether a measure fulfills all the criteria of art.107(1) TFEU, it may request that the CJEU give a preliminary ruling on the subject under Art.267 TFEU.
Para.404, control system of new State aid, 「triangle of power」 consisting of the European Commission, the GC and CJEU, and national courts. Supervision of aid – commission; decision – GC, appealed before CJEU; ensure the effectiveness of the notification obligation and safeguard the rights that individuals enjoy (resulting from the direct effect of the standstill obligation)
Para.405, notification of a new measure, the Commission initiates a preliminary examination procedure within 2 months. The period can be only extended with the consent of the MS concerned. 在preliminary examination之後，如果the commission comes to the conclusion that the measure does not constitute aid or the measure is aid but falls under an exception, or the measure is aid but falls under an exception provided for by the TFEU, decision not to raise objections. 否則， the commission 根據art.108(2) TFEU decides to initiate the formal investigation procedure
Para.406, 如果the commission does not reach a decision within 2 months, the aid is deemed to be authorized. 除非，the commission takes a decision to open the formal investigation procedure within a period of 15 working days following the receipt of such notice.
D. The Formal Investigation Procedural under Art.108(2) TFEU
Para.407, art.108(2) TFEU, formal investigation procedure apply both existing aid and the new aid regime. 在preliminary examination後，the Commission has doubts about the compatibility of the aid, and cannot definitely conclude the aid is not contrary to the state aid prohibition, 然後就formal investigation procedure.
Para.408, within 1 month, all parties may submit their comments. The length of the investigation depends on whether the Commission performs a more detailed investigation. 但是，after taking all relevant information into consideration and all doubts have been removed, the Commission should concluded its examination within a period of 18 months.
Para.409, the formal investigation procedure ends with a final decision. 1) no aid decision 2) positive decision 3) conditional decision 4) negative decision. Final decisions should be sufficiently reasoned.
Para.410, actual recipient, potential aid recipient may challenge a negative or conditional decision. Competitors of the beneficiary must demonstrate they have a significant role in the state aid procedure and that their position in the market is significantly affected by the aid to have legal standing. MS do not need to meet particular requirements.
Para.411, whether an aid fulfilling art.107(1) is compatible with the internal market lies within the exclusive power of the Commission, but subject to review by the EU Courts. As to the scope of juridical review, it needs to be distinguished: the CJEU exercises a comprehensive review of whether a measure falls within the scope of Art.107(1). There is no margin of discretion, and it is subject to full juridical review. The state aid criteria remain within the Commission』s margin of discretion.
E. The Consequences of Unlawful Aid
Para.412, unlawful aid, the Commission starts the procedure against the MS. 1, the Commission request the MS to provide complete information 2, ensure the effectiveness of standstill obligation, issue an interim suspension injunction 3, the commission may also adopt a decision to provisionally recover any unlawful aid until it has come to its final decision.
Para.413, unnotified but compatible aid – it may find that the measure not duly notified is aid that is compatible with the internal market; unnotified incompatible aid – the aid not notified is not compatible with the internal market
Para.414, negative decisions are taken in cases of unlawful aid. Effective competition need to be restored and aid has to be recovered. Recovery is not meant to be a penalty, but a consequence of the finding that the aid is unlawful.
Para.415, a formal investigation procedure, unnotified aid measure is incompatible with the internal market. By means of a recovery decision, the Commission may only provide for recovery of aid that is both formally or materially unlawful but not for aid which is just formally unlawful.
Para.416, the recovery decision is directly applicable for the MS addressed, which has to ensure full recovery under its domestic procedural laws.
Para.417, the recovery of aid also includes interest to compensate for the advantage in time, i.e. the interest advantage. The aid to be recovered thus includes interest payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery.
Para.418, formally unlawful aid, national courts must order recovery of interest even where the aid is compatible with EU law and the Commission has issued a positive decision. The aid should have been granted at a later point in time, causes competitors to suffer from the measures』 effects earlier than would have had to. 但是，art.16 procedural regulation only applies to negative decisions, the formally unlawful aid depend solely on national law. This fact might reduce the effectiveness of both the notification and standstill obligation.
Para.419, 當實行recovery decision, 要follow procedural and substantive provisions of their national law. 所以，the application of national procedural law must comply with the requirements of the principle of effectiveness and principle of equivalence.
Para.420, the enforcement of the recovery order depends on the procedural rules and remedies available in the respective MS』s legal system and is thus different in each State. National courts must order recovery even though the decision has been appealed.
Para.421, limitation to the recovery of state aid. 1, commission can only order recovery of unlawful and incompatible aid granted within a period of ten years. 2, recovery does not have to take place if it would contradict general principle of EU law, or if it is absolutely impossible for the MS to recover the aid.
Para.422, principle of legitimate expectations is one of the most commonly invoked pleas against recovery orders, but rarely succeeds before EU Courts.
Para.423, the necessity to recover unlawful state aid has been criticized as curtailing economic prosperity in the internal market. 1, 長期看，exposure to retroactive payment demands could discourage economic players from pursuing business within the EU. 2, recovery could be particularly problematic in the area of tax law. 3, retroactive taxation based on primary law without any legal basis in the national tax law might conflict with the rule of law.
IX. Overview of the Procedural Treatment of State Aid
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