State aid - United Kingdom

Aid C 52/2001 (ex NN 51/2000) - Gibraltar qualifying companies

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(2002/C 26/04)

(Text with EEA relevance)

By means of the letter dated 11 July 2001, reproduced in the authentic language on the pages following this summary, the Commission notified the United Kingdom of its decision to initiate the procedure laid down in Article 88(2) of the EC Treaty concerning the abovementioned measure.

Interested parties may submit their comments on the measure in respect of which the Commission is initiating the procedure within one month of the date of publication of this summary and the following letter, to: European Commission Directorate-General for Competition

State Aid Registry

B - 1049 Brussels Fax (32-2) 296 12 42.

These comments will be communicated to the United Kingdom. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

The measure has not been notified to the Commission.

The State aid measure, which is the object of the initiation of procedure, is a measure in force in Gibraltar. The measure is established by the Income Tax (Qualifying Company) Rules of 22.9.1984: a company satisfying certain conditions (amongst which, no Gibraltarian or Gibraltar resident may have a beneficial interest in the shares of the company) can obtain a qualifying company certificate. Possession of this certificate will allow the company to be taxed on its profits at a prescribed rate that will be in any event lower than the normal corporate tax rate.

The purpose of this regime is to attract non-Gibraltarian companies to Gibraltar through considerable tax advantage. The measure appears to constitute aid as it fulfils the four relevant criteria.

Firstly, the measure affords the beneficiaries an advantage that reduces the costs they normally bear in the course of their business. According to point 9 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation(1), the tax advantage may be granted through different types of reduction in the company's burden and, in particular, through a reduction in the amount of tax. The relief from the obligation to pay the full amount of corporation tax appears to fulfil this criterion.

Secondly, the advantage must be granted by the State or through State resources. The grant of a tax reduction involves a loss of tax revenue which, according to point 10 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation, is equivalent to the use of State resources in the form of fiscal expenditure.

Thirdly, the measure must affect competition and trade between Member States. This criterion is fulfilled by the measure to the extent that these companies are able, actually or potentially, to trade with companies located in other Member States. This is all the more so that, on the basis of the information provided, the qualifying company may not, in normal circumstances, trade or carry on business in Gibraltar, with Gibraltarians or residents of Gibraltar.

Lastly, the measure must be specific or selective in that it favours "certain undertakings or the production of certain goods". The beneficiaries of the measure are companies in which no Gibraltarian or Gibraltar resident may have a beneficial interest in their shares. In addition, the qualifying company may not in normal circumstances trade or carry on business in Gibraltar with Gibraltarians or residents of Gibraltar. On the basis of these elements it can be presumed that the measure is selective, in so far as it favours foreign resident companies over others.

As stated in point 26 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation, "if non-resident companies are treated more favourably than resident ones" it is difficult to justify such an exception by the logic of the tax system. Despite the fact that qualifying companies are resident companies, the qualifying status is granted to them only on the basis that they are foreign-owned. Qualifying companies seem to be treated more favourably than other resident companies. Therefore, the application of a lower corporate tax rate does not appear to be justified by the logic of the tax system.

For these reasons, the measure seems to constitute an operating State aid. Furthermore, the State aid in question does not appear to fall within any of the exceptions laid down in Article 87(2) and (3) of the EC Treaty. Therefore, in the context of its preliminary assessment under Article 6 of Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, the Commission has doubts as regards the compatibility of the tax measure.

In accordance with Article 14 of Regulation (EC) No 659/1999, all unlawful aid can be subject to recovery from the recipient.

TEXT OF THE LETTER

"The Commission wishes to inform the United Kingdom that, having examined the information supplied by your authorities on the measure referred to above, it has decided to initiate the procedure laid down in Article 88(2) of the EC Treaty.

In 1997, the Ecofin Council adopted a code of conduct for direct business taxation with the objective of tackling harmful tax competition (OJ C 2, 6.1.1998). Following to the commitment taken by way of this code, the Commission published in 1998 a notice on the application of State aid rules to measures relating to direct business taxation (OJ C 384, 10.12.1998) stressing its determination to apply them rigorously and to respect the principle of equality of treatment. The current procedure is carried out within this framework.

I. PROCEDURE

1. Aid NN 51/2000 - Qualifying companies has not been notified to the Commission. As this measure does not seem to fall within any of the categories listed under Article 1(b) of Council Regulation (EC) No 659/1999(2), it has to be considered at this stage as a non-notified aid.

2. On 12 February 1999 the Commission has sent a first request for information in respect of a number of tax schemes applicable in Gibraltar. The Permanent Representation of the United Kingdom to the European Union provided an answer dated 27 July 1999. A second request for information was sent on 4 August 1999, the answer was dated 12 November 1999. A third request for information was sent on 23 May 2000, a reminder on 28 June 2000, the answer was dated 3 July 2000.

II. DETAILED DESCRIPTION OF THE MEASURE

3. According to the information transmitted, the rules on qualifying companies were introduced by the Income Tax (Qualifying Companies) Rules of 22 September 1984 and they are still applicable.

4. They allow a company or registered branch holding the status of qualifying company to be liable to taxation on its profits at a rate that is lower than the normal corporate tax rate.

II.A. Objective

5. The purpose of this regime is to attract companies in which no Gibraltarian or resident of Gibraltar has a beneficial interest to Gibraltar through considerable tax advantage.

II.B. The aid measure

Conditions

6. In order to obtain the qualifying company status, a company must fulfil the following conditions:

- it must have a paid up share capital of GBP 1000 or the foreign currency equivalent thereof,

- it must deposit GBP 1000 with the Gibraltar Government as security for future taxes,

- it must pay a fee of GBP 250 for a qualifying certificate,

- no Gibraltarian or Gibraltar resident may have a beneficial interest in the shares of the company,

- the company may not, without the prior consent of the Gibraltar Financial and Development Secretary, trade or carry on business in Gibraltar, with Gibraltarians or residents of Gibraltar. It may, however, trade with other exempt or qualifying companies.

Qualifying company status

7. A company, which fulfils the above conditions, obtains a qualifying company certificate. Once issued the qualifying company certificate is valid for 25 years.

8. On the basis of the information so far provided, a company holding this certificate will be liable to taxation on its profits at such a rate which will in any event be lower than the normal corporate tax rate, which currently stands at 35 %. The rate of tax applied will depend on the type of activity the company engages in (as to the exact rates applicable, please refer to the request for information as explained in points 26 and 27 here below).

9. Other benefits resulting from the qualifying status are the following:

- fees payable to non-residents (including directors) and dividends paid to its shareholders are subject to withholding tax at the same prescribed rate as the company,

- there is no stamp duty on the transfer of shares of a qualifying company.

III. ASSESSMENT OF THE MEASURE

10. To be considered an aid under Article 87(1) of the EC Treaty, a measure must fulfil the four following criteria.

11. Firstly, the measure must afford the beneficiaries an advantage that reduces the costs they normally bear in the course of their business. According to point 9 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation(3), the tax advantage may be granted through different types of reduction in the company's burden and, in particular, through a reduction in the amount of tax.

12. The relief from the obligation to pay the full amount of corporation tax seems to fulfil this criterion. Moreover, since the information provided was not complete, one should not exclude the possibility of other advantages.

13. Secondly, the advantage must be granted by the State or through State resources. The grant of a tax reduction involves a loss of tax revenue which, according to point 10 of the Commission Notice on the application of the State aid rules to measures relating to direct business taxation, is equivalent to the use of State resources in the form of fiscal expenditure.

14. Thirdly, the measure must affect competition and trade between Member States. This criterion seems to be fulfilled by the measure to the extent that these companies are able, actually or potentially, to trade with companies located in other Member States. This is all the more so that, on the basis of the information provided, the qualifying company may not, in normal circumstances, trade or carry on business in Gibraltar, with Gibraltarians or residents of Gibraltar.

15. Lastly, the measure must be specific or selective in that it favours 'certain undertakings or the production of certain goods'. The beneficiaries of the measure are companies in which no Gibraltarian or Gibraltar resident may have a beneficial interest in their shares. In addition, the qualifying company may not in normal circumstances trade or carry on business in Gibraltar with Gibraltarians or residents of Gibraltar. On the basis of these elements it can be presumed that the measure is selective, in so far as it accords privileged tax treatment to those non-Gibraltar-owned companies. It should be borne in mind that the identification of the abovementioned features regarding material specificity do not exclude the existence of other features that would confer specificity to the envisaged tax regime, like for example regional specificity.

16. As stated in point 26 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation, 'if non-resident companies are treated more favourably than resident ones' it is difficult to justify such an exception by the logic of the tax system. Despite the fact that qualifying companies are resident companies, it cannot be challenged that the qualifying status is granted to them only on the basis that they are foreign-owned. Qualifying companies are treated more favourably than other resident companies. Therefore, the application of a lower corporate tax rate cannot be justified by the logic of the tax system.

17. Finally, it should be recalled that the Act of Accession to the European Communities of, inter alia, the United Kingdom does not provide any exclusion as to the applicability of the relevant provisions on State aid (e.g. Articles 92 (now 87) and 93 (now 88) of the Treaty to Gibraltar.

IV. COMPATIBILITY OF THE AID

18. The measure appears to constitute aid in the meaning of Article 87(1) EC. It is therefore necessary to determine if such an aid is compatible with the common market under the exceptions laid down in Article 87(2) and (3) EC.

19. It appears that the exceptions under Article 87(2) EC cannot be applied in this case, as the aid is not aimed at the objectives listed in these provisions.

20. Under Article 87(3)(a), an aid is considered compatible with the common market when it is designed to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment. Since Gibraltar is not such an area, this provision does not apply.

21. As regards the exceptions laid in Article 87(3)(b) and (d), the aid in question is not intended to promote the execution of an important project of common European interest or to remedy to a serious disturbance in the economy of the United Kingdom, nor is it intended to promote culture or heritage conservation.

22. Lastly, it is necessary to examine if the aid can qualify for the exception laid down in Article 87(3)(c) which states that may be considered compatible an aid to facilitate the development of certain economic activities or of certain economic areas where such aid does not adversely affect trading conditions to an extent contrary to the common interest.

23. The rules according a qualifying company status are not related to an investment or to a job creation and constitute a permanent relief from charges that should be normally met by these companies in the course of their business.

24. The aid can, at this stage, be considered as an operating aid, the benefits of which will cease as soon as the aid is withdrawn. According to the constant practice of the Commission, such aid cannot be considered to facilitate the development of certain economic activities or of certain economic areas.

25. Since the aid does not appear to qualify for any of the exceptions provided for in the Treaty, in the context of its preliminary assessment as provided by Article 6 of the Regulation (EC) No 659/1999, the Commission has doubts about the compatibility of the aid with the common market.

26. In the light of the foregoing considerations, the Commission, acting under the procedure laid down in Article 88(2) of the EC Treaty, requests the United Kingdom to submit its comments and to provide all such information as may help to assess the aid, within one month of the date of receipt of this letter. The Commission would in particular like to gather the observations of the United Kingdom and interested parties on possible legitimate expectations of the sort that would pose an obstacle to the recovery of aid, in the event that this aid would be qualified as being illegal and incompatible.

27. In addition, it is reminded that the Commission has sent requests for information to the United Kingdom three times in the examination of this case (see point 2 above). As it appears from the relevant dates (indicated in the above point 2), the answers to the Commission's formal requests have been provided with considerable delay. Furthermore, the answers appear to be incomplete.

28. Given this context, the Commission requires, with reference to Regulation (EC) No 659/1999, Article 10(3), the United Kingdom to provide, within one month of the date of receipt of this letter:

(a) the full text of the 1984 edition of the Income Tax (Qualifying Companies) Rules;

(b) a complete and exhaustive list of all relevant texts of law which are or have been related to the 'qualifying companies' measure, i.e. indicate whether other texts than the Income Tax (Qualifying Companies) Rules of 22 September 1984 has been or is relevant;

(c) with reference to point 8 of this letter, please indicate which is the relevant text and provision to identify the different rates of tax applicable to qualifying companies. Please also provide a copy of this text and provision(s).

29. The Commission requests your authorities to forward a copy of this letter to the potential recipient of the aid immediately.

30. The Commission wishes to remind the United Kingdom that Article 88(3) of the EC Treaty has suspensive effect, and would draw your attention to Article 14 of Regulation (EC) No 659/1999, which provides that all unlawful aid may be recovered from the recipient."

(1) OJ C 384, 10.12.1998, p. 3.

(2) OJ L 183, 27.3.1999, p. 1.

(3) OJ C 384, 10.12.1998, p. 3.