European Commission Adopts Decisions Requiring Taxation of Ports
The European Commission has required the Netherlands to abolish an exemption from corporate tax for its six seaports so as to align the regime with EU state aid rules. The commission has also proposed in two separate decisions that Belgium and France align their taxation of ports with state aid rules.
Public companies, when carrying out economic activities, compete with private players, who are subject to paying corporate tax. The commercial operation of port infrastructure constitutes an economic activity. Public companies when carrying out economic activities are subject to paying corporate tax, as are private companies, under EU rules.
“Ports are key infrastructure for economic growth and regional development,” said Commissioner Margrethe Vestager, in charge of competition policy. “I will soon present a proposal to facilitate unproblematic investments in ports that can create jobs, to exempt them from scrutiny under EU state aid rules. At the same time, the commission’s decisions today regarding the Netherlands, Belgium and France make clear that if port operators generate profits from economic activities these should be taxed under the normal national tax laws to avoid distortions of competition.”
Following complaints, the Commission asked the Netherlands in May 2013 to abolish provisions exempting certain public companies, including port operators, from corporate tax, because it was concerned that they may give the companies concerned an undue advantage over their competitors. In July 2014, the Commission opened an in-depth investigation.
In the course of the Commission’s investigation, on 4 June 2015, the Netherlands adopted a law making public undertakings subject to corporate tax as of 1 January 2016. However, the law maintained a tax exemption for six publicly-owned Dutch seaports: Groningen Seaports N.V., Havenbedrijf Amsterdam N.V., Havenbedrijf Rotterdam N.V., Havenschap Moerdijk, N.V. Port of Den Helder and Zeeland Seaports.
The EC considers that the Dutch legislation addresses its state aid concerns, except for the six Dutch seaports that remain exempted from corporate taxation. The commission concluded that this exemption also has to be abolished.
In July 2014, the commission informed Belgium and France about its concerns regarding their regimes for the taxation of ports.
In Belgium, a number of sea and inland waterway ports—Antwerp, Bruges, Brussels, Charleroi, Ghent, Liège, Namur and Ostende—as well as along the canals in Hainaut Province and Flanders are exempt from the general corporate income tax regime. These ports are subject to a different tax regime, with a different base and tax rates, resulting in an overall lower level of taxation for Belgian ports as compared to other companies active in Belgium.
Most French ports, notably the 11 grands ports maritimes of Bordeaux, Dunkerque, La Rochelle, Le Havre, Marseille, Nantes-Saint-Nazaire, and Rouen as well as Guadeloupe, Guyane, Martinique, and Réunion, the port autonome de Paris, and ports operated by chambers of industry and commerce, are fully exempt from corporate income tax.
The commission took the preliminary view that, in both Belgium and France, the existing regimes provide the ports with a selective advantage that may breach EU state aid rules.
The EC therefore proposed measures to Belgium and France to adapt their legislation, in order to ensure public or private ports pay corporate tax on their economic activities in the same way as other companies in Belgium and France, respectively. Each country now has two months to react.
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