The Taxpayer Protection in Eu State Aid Law

In the field of State aid law, traditionally, there has always been an attempt to strike a balance between two conflicting demands which are, on the one hand, the protection of free competition and the internal market and, on the other, the protection of national sovereignty and autonomy of the Member States regarding the choices of internal economic and fiscal policy. While it is true, in fact, that direct taxation falls within the competence of the Member States, it is equally true, and peacefully accepted, that the Member States must exercise their fiscal competence in compliance with Union law. In recent years, the European Institutions began to implement their coordination action through the expansive exercise of competences and powers, already expressly attributed by the Treaties, in relation to distinct sectors of intervention: an essential step of this expansion is represented by the elaboration of the notion of fiscal aid and the connection of prohibition on State aid to taxation with the objective of contrast at the harmful tax competition and the erosion of the tax base. The continuous extension of the limits of the State aid rules and of the notion of fiscal aid, have a significant impact not only for Member States and for their fiscal sovereignty, but above all for taxpayers as beneficiaries of a fiscal measure, potentially configurable as State aid. State aid, in fact, is not only a theoretical and controversial question between European Institutions and Member States, but does have significant practical implications for taxpayers. This contribution provides an analysis of the position does the taxpayer hold in a State aid procedure and explores what are the taxpayer' right, what are the protection tools that the taxpayer has and if is there a (effective?) system of protection and guarantees for the taxpayer. Adopting the perspective of taxpayer involved in a State aid procedure as the subject directly affected by European decisions, the analysis is carried out by identifying as a benchmark the general principles of European Union and the European Charter of Fundamental Rights, comparing the position of the taxpayer in State aid with the European minimum standard of protection and with the rights foreseen at a general level in the European Union, identifying the concrete implications in terms of effectiveness and validity of protection and the existing ontological differences with the general framework of fundamental rights in the European context. It is, in fact, relevant verify if a different level of protection of the taxpayer in the State aid field and the different application, extremely restrictive in respect to the general context, can be justified compared to that established in general and in principle in the European legal order. The analysis concerning taxpayer rights and his protection tools is conducted through two level of analysis: the first level relating the State aid Investigation procedure, in relation to which two aspects of the taxpayer's position emerge, that are the right to be heard, to participate at the procedure and the right to privacy and confidentiality that could be invoked by the taxpayer, as well as the possible connection with the right to access to State aid file; the second level relating to Aid Recovery procedure, in reference to which a limits is expressly established, in order to prevent the recovery of a State aid, that is the compatibility with the general principles of the European Union, in which legal certainty and protection of legitimate expectations play a role of primary importance.