In a recent decision on an appeal, the European Court of Justice (ECJ) has decided the so-called new Spanish tax lease regime does not constitute state aid. The appeal was brought forward by the Netherlands Maritime Technology Association, as was the initial case.
Previously, the Commission of the European Union raised concerns about the former Spanish tax lease regime. These concerns were that the system was used exclusively in transactions involving shipping companies purchasing vessels from Spanish shipyards. According to the Commission, all those transactions also involved leasing companies and wealthy Spanish taxpayers grouped together under the aegis of structures put in place by Spanish banks. The Commission considered, inter alia, that the early depreciation scheme provided for contained an element of selectivity, since it required an authorisation from the tax authority covering all the effects of the leasing contract. Also for applying the tonnage tax regime after using the accelerated depreciation scheme required upfront approval from the Spanish tax authorities.
Subsequently, the Spanish authorities modified the Spanish tax lease regime. The most important change is that application no longer requires prior approval from the Spanish tax authorities, the requirements to apply for the scheme were introduced in tax law. Considering the amendments, the Commission ruled that the (amended) Spanish tax lease was in accordance with the EU stated aid regulations.
In a previous ruling, the ECJ concluded that the Spanish tax lease does not provide for a selective advantage within the meaning of the state aid regulations. In the current appeal, the ECJ upholds this ruling. The ECJ considers the previous ruling has correctly considered all arguments brought forward and has correctly applied the regulations regarding EU state aid.
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