How national courts should remedy unlawful State aid is not clearly defined in State aid law, particularly with regard to tax measures. The purpose of this article is to investigate whether national courts may order refunds of taxes to the benefit of undertakings that have paid higher taxes than their competitors as a remedy for an unlawful aid scheme involving coexisting different levels of taxation. It is concluded that, while the case law of the CJEU does not impose an absolute prohibition on tax refunds as a remedy for unlawful State aid, it does not generally endorse such a remedy. The Court has accepted tax refunds only in limited circumstances, highlighting a gap between the theoretical and practical roles of national courts in restoring fair competitive conditions. At the same time, the CJEU’s case law does not provide a comprehensive answer on how a national court should remedy unlawful fiscal State aid. Therefore, it remains uncertain whether national courts may order tax refunds as a remedy to the benefit of undertakings that have paid higher taxes than their competitors.
Common Market Law Review