Preliminary ruling on the compatibility of taxation of superstores with the right to freedom of establishment and State aid law: Case C‐233/16, ANGED

• Author: Nicolas Sadeleer
• DOI: http://doi.org/10.1111/reel.12266
• Published date: 01 November 2018
• Date: 01 November 2018

CASE NOTE

Preliminary ruling on the compatibility of taxation of

superstores with the right to freedom of establishment and

State aid law: Case C‐233/16, ANGED

Nicolas de Sadeleer

Correspondence

Email: desadeleernicolas@gmail.com Environmental protection measures and the rules on the internal market enshrined

in the Treaty on the Functioning of the European Union are likely to be at odds

with one another. For instance, the freedom of establishment is likely to limit the

regulatory tax sovereignty of Member States. The case under review raises some

critical issues regarding the validity of environmental taxes on large retail establish-

ments in light of the freedom of establishment and State aid rules.

1

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INTRODUCTION

The establishment of out‐of‐town superstores has affected retailing

activities as well as the environment of every urbanized part of Eur-

ope. In addition to its economic impacts, the retail industry's head-

long rush into more sprawling supermarkets has significant impacts

on transportation, greenhouse gas emissions, land planning and the

environment. Indeed, large retail establishments attract a higher vol-

ume of goods and customer traffic than smaller retail establishments.

Likewise, given that they are located outside urban areas, they con-

tribute to urban sprawl.

So far, the attitudes of central and local authorities in Member

States have differed significantly.

1

In several Member States, author-

ities have been limiting the growth of superstores thanks to land

planning, environmental and economic instruments, whereas in

others a laissez-faire attitude has prevailed. Indeed, environmental

protection and planning rules vary significantly from one Member

State to another.

In the case under review, the Court of Justice of the European

Union (CJEU) took the view that ‘the larger the sales area, the higher

the attendance of the public, which results in greater adverse effects

on the environment’.

2

However, European Union (EU) secondary law

does not place direct restrictions on the building of superstores. The

Member States are merely called on to assess the environmental

impacts of these stores. Either the building licence or the

environmental licence has to be subjected to an environmental

impact assessment (EIA) under the EIA Directive 2011/92/EU,

3

or

the plan or programme underpinning the realization of the store

must be subjected to a strategic environmental assessment (SEA)

under the SEA Directive 2001/42/EC.

4

Needless to say, these two

directives are essentially of a procedural nature. The authorities

granting their consent to the developers are merely called on to

‘take into account’in their statement of reasons the environmental

assessment.

5

They are not obliged to refuse to grant the licence on

the grounds that the impact assessment is negative. Accordingly,

these two directives do not call into question the discretion of the

national authorities to grant the building and/or the environmental

licences. Therefore, neither the SEA nor the EIA preclude the com-

petent authorities to give their consent to projects impairing the

quality of the environment.

However, national or regional environmental protection rules can

be at odds with the fundamental freedoms of the internal market.

Enshrined in Article 49 of the Treaty on the Functioning of the

European Union (TFEU), the freedom of establishment may be relied

on by developers to limit the regulatory sovereignty of Member

States.

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1

C Guy, ‘Controlling New Retail Spaces: The Impress of Planning Policies in Western

Europe’(1998) 35 Urban Policies 953.

2

Case C‐233/16, ANGED, ECLI:EU:C:2018:280 para 53.

3

Directive 2011/92/EU of the European Parliament and of the Council of 13 December

2011 on the assessment of the effects of certain public and private projects on the envir-

onment [2012] OJ L26/1 Annex II, para 10(b) subjecting ‘the construction of shopping cen-

tres and car parks’to an EIA.

4

Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on

the assessment of the effects of certain plans and programmes on the environment [2001]

OJ L197/30.

5

Directive 2011/92/EU (n 3) art 8.

DOI: 10.1111/reel.12266

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