Commissioner Margrethe Vestager, in charge of competition policy, said: "Ports play a key role in the EU's economy. Our competition rules reflect that and allow Member States to support the construction or upgrade of port infrastructure through investment aid. However, tax exemptions shouldn't distort competition by giving an unfair advantage to some ports over others in Europe."
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.
The main activity of ports is the transfer of people and cargo, as well as the provision of infrastructure to shipping companies, shipbuilders and other companies. This commercial operation of port infrastructure constitutes an economic activity, for which ports should pay corporate tax, just like other companies do. However, ports also carry out certain activities that are linked to the exercise of essential State responsibilities such as safety, surveillance and traffic control. Such activities fall outside the scope of EU state aid control.
A corporate tax exemption for ports that earn profits from economic activities provides them with a selective advantage compared with their competitors in other Member States and therefore involves state aid within the meaning of the EU rules.
In Belgium, a number of sea and inland waterway ports (notably the ports of Antwerp, Bruges, Brussels, Charleroi, Ghent, Liège, Namur and Ostend, as well as ports 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 on their commercial activities as compared to other companies in Belgium.
In France, most ports, notably the 11 "grands ports maritimes" (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. This self-evidently results in an overall lower level of taxation for French ports on their commercial activities as compared to other companies in France.
In January 2016, following its investigation into the functioning and taxation of ports in EU Member States, the Commission asked Belgium and France to bring their corporate tax law into line with EU state aid rules by abolishing their tax exemption for ports. As Belgium and France have not agreed to align their tax laws as the Commission proposed, the Commission has now opened in-depth investigations to assess whether its initial concerns are confirmed or not.
The opening of an in-depth investigation gives an opportunity for the two Member States and interested third-parties – such as beneficiaries or competitors - to comment on the state aid assessment of the tax exemptions, in particular as to the assessment of the economic nature of ports' activities and the effect on competition and trade. It does not prejudge the outcome of the investigation.
As both the Belgian and the French measures already existed before the establishment of the EU in 1958, the aid is regarded as "existing aid". This means that the Commission cannot ask Belgium and France to recover aid granted in the past, nor any aid granted up until the moment that a final decision is adopted by the Commission.
"Existing aid", and its assessment, is subject to a specific cooperation procedure between Member States and the Commission. When existing aid seems to be in breach of EU state aid rules, the Commission's first step is to inform 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 into line with EU state aid rules. If the Member State does not accept the proposal, the Commission may, as a third step, open an in-depth investigation to verify the compatibility of the aid. Today's decisions fall into this third category.
Removing unjustified tax advantages does not mean that ports can no longer receive state aid. Member States have many possibilities to support ports in line with EU state aid rules, for example to achieve EU transport objectives or to put in place necessary infrastructure investment which would not have been possible without public aid. In that regard the Commission has proposed to widen the scope of its General Block Exemption Regulation to include non-problematic investment aid to ports and foster strategic investments in infrastructures that have the potential to create jobs in Europe.
In January 2016, the Commission required the Netherlands to put an end to the corporate tax exemption granted to the Dutch public seaports.
The non-confidential version of the decisions will be made available under case numbers SA.38393 (Belgium) and SA.38398 (France) 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.