Advocate General Biondi proposes annulment of Commission decision on Swedish risk tax over flawed selectivity analysis
The Advocate General Biondi (AG) in case C‑459/24 P (Svenska Bankföreningen v Commission) has proposed that the Court of Justice (CJEU) set aside the General Court’s (GC) judgment and annul the Commission decision concerning the Swedish “risk tax” on credit institutions.
The Opinion criticises the GC for mischaracterising the objective of the tax, which it wrongly treated as addressing systemic risk in the financial sector. In reality, the tax was designed to target credit institutions exceeding a defined liabilities threshold, and this misinterpretation led to a flawed selectivity analysis under Article 107(1) TFEU.
The AG found that this error affected the entire legal assessment, including the identification of the reference system, the determination of the taxable persons, and the threshold mechanism. He considers that the General Court relied too heavily on inapposite case-law on progressive taxation and failed to properly examine whether the design of the tax, particularly its asymmetric structure and liability threshold, created inconsistencies with its stated objective. In his view, these elements should have raised serious doubts as to the measure’s compatibility with the State aid rules, requiring the Commission to open a formal investigation under Article 108(2) TFEU.
The AG thus considered that these errors vitiate the judgment as a whole and justify its annulment, as well as that of the underlying Commission decision.
For more information, see the AG’s Opinion.