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

AuthorNicolas Sadeleer
Published date01 November 2018
Date01 November 2018
Preliminary ruling on the compatibility of taxation of
superstores with the right to freedom of establishment and
State aid law: Case C233/16, ANGED
Nicolas de Sadeleer
Email: 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.
The establishment of outoftown 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.
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.
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,
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.
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 accountin their statement of reasons the environmental
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
© 2018 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
C Guy, Controlling New Retail Spaces: The Impress of Planning Policies in Western
Europe(1998) 35 Urban Policies 953.
Case C233/16, ANGED, ECLI:EU:C:2018:280 para 53.
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 parksto an EIA.
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.
Directive 2011/92/EU (n 3) art 8.
DOI: 10.1111/reel.12266
RECIEL. 2018;27:341347.

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