Il ridimensionamento del principio di ‘libera concorrenza’ nella disciplina degli aiuti di Stato operato dalla sentenza Fiat Chrysler Finance Europe

The article comments favorably on the judgment of the Court of Justice of 8 November 2022, Fiat Chrysler Finance Europe, which annulled the judgment of the General Court of 24 September 2019, in joined cases T 755/15 and T 759/15, Fiat Chrysler Finance Europe, and the Commission Decision n. 2016/2326, FIAT. With this ruling, the Court expresses itself for the first time on the qualification of tax ruling issued in the Member States as determinations that can involve the granting of State aid, clarifying that they can only constitute State aid when there is a detournement from the normal tax system of the State which must be identified without excluding parts of the internal legislation. In the present case, having confirmed the legitimacy of a Commission Decision which identified the reference tax system by excluding a part of the Luxembourg legislation, the General Court adopted a flawed judgment which was annulled by the Court of justice together with the Commission Decision. Furthermore, the Court of justice adds that, in assessing advance tax rulings and ascertaining the possible presence of State aid, the Commission cannot rely on the European arm’s length principle, the existence of which has never been affirmed by the Court, nor rely on documents extraneous to the national legal system such as the OECD guidelines and model Conventions if they have not been expressly referred to by the national legislator. The introduction of evaluation criteria extraneous to domestic law would in fact entail the introduction of provisions for the harmonization of legislation in violation of the principle of conferred powers.