Action brought on 25 September 2013 – Spain v Commission

(Case T-515/13)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, lawyer in the State Legal Service)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the contested decision and

order the defendant to pay the costs.

Pleas in law and main arguments

This action is brought against Commission Decision C (2013) 4426 final of 17 July 2013 on the tax regime applicable to certain finance lease agreements, also known as the Spanish Tax Lease System (STLS) (State Aid SA.21233 C/2011 (ex NN/2011, ex CP 137/2006)). In that decision the Commission considers the measures resulting from Article 115(11) of the consolidated text of the Law on Corporate Tax (early depreciation of leased assets), from the application of the tonnage tax to non-eligible undertakings, vessels or activities and from Article 50(3) of the Regulation on Corporate Tax to be state aid to economic interest groups that is incompatible with the internal market.

In support of its action, the applicant puts forward two pleas in law.

The first plea is based on an infringement of Article 107 TFEU, in that the measures examined in the contested decision do not satisfy any of the requirements for being regarded as state aid, since there is no element of selectivity in the advantage open to all potential investors from every sector of the economy, without any precondition being imposed; nor is there any distortion or threat of distortion of competition because it cannot be considered that an advantage open to all without any discrimination (not even on grounds of nationality) favours or is capable of favouring the competitive position of certain sectors or undertakings to the detriment of their competitors, because every investor could participate in the structures of the so-called STLS and obtain the benefits which that system offered. Consequently, there is no impact on trade between Member States either, given that the partners (or shareholders) in an entity do not carry on any activity on the market.

The second ground, which is relied on in the alternative, is based on an infringement of the principles of equal treatment, the protection of legitimate expectations and legal certainty, and therefore, under Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, the aid should not be recovered.