Cécile Brokelind

This contribution on Intellectual Property, Taxation and State Aid Law investigates whether some tax incentives for Research and Development—and Innovation (R&D or R&D&I) adopted by EU Member States are in line with the legal framework of State Aid rules in the context of the EU policy objectives and of article 179 TFEU. The main issue is to know whether output tax incentives such as Patent Box regimes could be considered as selective State aid by the ECJ. The chapter considers this issue both prior to any amendments suggested by the OECD BEPS Action 5, and after potential implementation of the modified nexus approach. The result of this investigation shows that some features of the patent box regimes could trigger the application of article 107 (1) TFEU. Additionally, a notification under the State aid modernization rules would not lead to a positive decision as several doubts remain on how output tax incentives such as Patent box regimes remedy the market failures for which a State aid is granted, i.e. increasing R&D&I in the EU (and not in one Member State only).