Commissioner Margrethe Vestager, in charge of competition policy, stated: "Ports are key infrastructure for economic growth and regional development. 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."
Cross-border competition plays an important role in the ports sector and the Commission is committed to ensuring a level playing field in this important economic sector.
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 should be subject to paying corporate tax, just like private companies are. These economic activities can be distinguished from other activities that linked to the operation of infrastructure for the exercise of the essential responsibilities of the State (e.g. safety, surveillance, traffic control), which fall outside the scope of EU state aid control.
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 (namelyGroningen Seaports N.V., Havenbedrijf Amsterdam N.V., Havenbedrijf Rotterdam N.V., Havenschap Moerdijk, N.V. Port of Den Helder and Zeeland Seaports).
The Commission 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 order to remove the resulting distortions of competition. The Netherlands now has two months to take the necessary steps to remove the exemption in order to ensure that from 1 January 2017 the six ports are subject to the same corporate taxation rules.
Belgium and France
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 (notably the ports of 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 takes 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.
Today, it has 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.
As announced in November 2015, the Commission is working on an extension of the General block exemption regulation (GBER) so as to cover non-problematic investments in ports and foster strategic investments in infrastructures that have the potential to create jobs in Europe.
Separately, the Commission is also continuing its investigation into the functioning and taxation of ports in other Member States and will take the necessary steps to ensure fair competition between all ports in the EU. The Commission has for example requested information on the financing of certain ports in Germany. This assessment is ongoing.
The exemption from corporate tax for Dutch public companies dates back to 1956. Similarly, the exemption from corporate tax for French ports dates back to 1942 and the Belgian favourable tax regime for ports also predates the entry into force of the Treaty of Rome, the founding Treaty of the EU, in 1958.
These measures are therefore considered as "existing aid" and their assessment is subject to a specific cooperation procedure between the Member States and the Commission. When existing aid seems to be in breach of EU state aid rules, the Commission, as a first step, informs the Member State concerned about its concerns. In light of the reply, the Commission may then propose appropriate measures to the Member State to bring the measures in line with EU state aid rules.
Today's proposals to Belgium and France are such second steps. If the two Member States do not accept the proposal, the Commission may, as a third step, open an in-depth investigation to verify the compatibility of the existing aid. If the Commission concludes that the regime is not compatible with EU state aid rules, it may require the Member State to put an end to existing aid that distorts competition in the Single Market. Today's request to the Netherlands is this final stage in the existing aid procedure.
The non-confidential versions of the decision will be made available under the case numbers SA.25338, SA.38393 and SA.38398 in the State Aid Register on the competition website once any confidentiality issues have been resolved. New publications of state aid decisions on the internet and in the Official Journal are listed in the State Aid Weekly e-News.