Congregación De Escuelas Pías Provincia Betania: Tax Exemption for Education Services by Religious Congregation Not Sacrosanct from State Aid Perspective

On 27 June 2017, the Court of Justice handed down a judgment in another fiscal State aid case concerning a tax exemption granted by Spain to a religious congregation performing educational services (Case C-74/16 Congregacion de Escuelas Pias Provincia Betania). The Court of Justice’s judgment is interesting – and relevant for future fiscal state aid cases – for a number of reasons, which are discussed in the present article. Firstly, the case adds to the growing body of case law regarding the interpretation of the selectivity requirement in tax matters. Secondly and more importantly, the case provides insight into what constitutes an ‘economic activity’ and an ‘undertaking’ for state aid purposes, and specifically deals with the role played by the receipt of remuneration in this respect. Finally, the case may shed light on an issue of growing importance, i.e. the interaction between an instrument of public international law (a treaty) and various aspects of EU state aid law.