The Kingdom of Spain brought before the Court of Justice an action for annulment
of the Commission decision of 1999 relating to the unlawfulness of the aid granted
by Spain to the publicly-owned shipyards.
Previously, in August 1997, the Commission had authorised aid for the restructuring
of the publicly-owned yards in Spain which provided for, inter alia,
special tax credits up to a maximum of ESP 58 billion for the period 1995-1999.
Before August 1995, the shipyards had been part of the INI group (Instituto
Nacional de Industria) and able to offset their losses against profits made
by other companies in that group, according to the general tax consolidation
rules applicable in Spain. As from August 1995, the yards formed part of the
State holding company AIE (Agencia Industrial del Estado) which was loss-making
and therefore unable to offset losses. For that reason, the Commission authorised
State aid in the form of special tax credits.
However, in September 1997, the shipyards were transferred to another holding
company, SEPI (Sociedad Estatal de Participaciones Industriales), which was
able to take advantage of the general Spanish rules in order to offset losses
against profits. As a result of that change, in 1998 the yards obtained a general
tax credit corresponding to their losses in 1997, but also a special tax credit
in the amount of ESP 18.451 billion.
In those circumstances, the Commission concluded that that special tax credit
was incompatible with its initial decision, adopted at a time when no tax credit
was offsetting losses because AIE was not making any profits. The Commission
thus decided that the sum resulting from the special tax credit plus interest
was to be recovered.
Spain claimed in the application that it was approved aid and disputed, inter
alia and in the alternative, the Commission's view of the purpose and the
calculation of the aid granted.
The Court of Justice has concerned itself first of all with determining whether,
for the purpose of the Community provisions on State aid, the tax credits constitute
new aid. The Court has recalled that where the Commission finds that aid
previously granted in pursuance of a particular scheme of aid no longer complies
with the conditions initially laid down, that aid must be regarded as new aid.
The Court has found that, after the change of control in 1997, the
yards were again able to offset their after-tax losses against profits made
elsewhere within the group. The Court has also held that the Commission
was entitled to find that the conditions enabling the grant of the aid were
no longer satisfied and that the payment of the sum of ESP 18.451 billion
made in 1998 by the Spanish Government (in the form of special tax credits)
was no longer in accordance with the earlier authorising decision. Consequently,
the Commission was not required to reassess the compatibility of the aid with
the Treaty.
As to the purpose of the aid in question, the Court has found that
the Commission's authorisation of aid in the form of special tax credits was
based on the fact that it was impossible for the yards to continue to enjoy
favourable general tax treatment following their move from INI to AIE.
Finally, the Court has held that the unlawful aid granted was to be calculated
on the basis of the calculation of the general tax credits.
In those circumstances, the Court has dismissed the application brought by
the Kingdom of Spain against the Commission decision of 1999.
NB: Case C-404/00 Commission v Kingdom
of Spain is currently pending before the Court of Justice. In that case,
the Commission requests the Court to declare that Spain has failed to comply
with that decision of 1999 on the reimbursement of the aid granted to
the publicly-owned shipyards, to which interest was to be added.
The Opinion of Advocate General Geelhoed is available
(though not yet in English) on our Internet site www.curia.eu.int .
|
|