The creation of a tax on possible “surplus profits” of motorway concession companies alone presents a “high risk” from a legal point of view, warns the Council of State, in an opinion requested by the government ahead of the budget for 2024 .
Faced with the profitability of concessionaires such as Vinci, Sanef or Eiffage, which it considers excessive, the government is considering either taxing motorway companies exclusively, or taxing all companies linked by a concession contract with the State, a broader scope which notably includes certain airport operators. To ensure the legal security of these two options, the executive requested an opinion from the Council of State in April, posted online on Tuesday on the administrative jurisdiction’s website and relayed by the newspaper Les Échos.
A new tax targeted specifically at motorway concessionaires or an increase in their taxation “would present (…) a high risk of being regarded by the constitutional judge as carrying a manifestly disproportionate attack on the right to maintain legally concluded agreements”, underlines the state Council. The concessions binding the State to these companies stipulate in fact “that in the event of modification, creation or suppression (…) of taxes, duties or fees specific to motorway concession companies”, the latter are entitled to “compensation measures, particularly tariffs”.
Furthermore, the “general interest” arguments invoked by the State to neutralize this clause are all dismissed by the magistrates of the Palais-Royal. There therefore remains the possibility of taxing companies linked to the State more broadly through a concession contract or a similar contract. These companies “constitute a homogeneous category which it is open to the legislator, for purposes of budgetary performance, to impose in a specific manner”, writes the Council of State.
But he warns the government: if its expanded tax has the “practical effect of weighing exclusively or almost exclusively” on motorway companies, deemed more profitable than airport operators, Vinci, Eiffage and others risk demanding the famous “ compensation” provided for by the concession contracts in the event of a new tax.
