Case T‑399/11

Banco Santander, SA
and
Santusa Holding, SL

v

European Commission

(State aid — Provisions concerning corporate tax allowing companies which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in companies which are tax resident abroad — Decision classifying that scheme as State aid, declaring that aid incompatible with the internal market and ordering its recovery — Concept of State aid — Selective nature — Identification of a category of undertakings favoured by the measure — Absence — Infringement of Article 107(1) TFEU)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 7 November 2014

1.      State aid — Concept — Selective nature of the measure — Tax relief measure — Criteria for assessment

(Art. 107(1) TFEU)

2.      State aid — Concept — Selective nature of the measure — Derogation from the general tax system — Differentiation between undertakings in a comparable factual and legal situation — Extent of the burden of proof

(Art. 107(1) TFEU)

3.      State aid — Concept — Selective nature of the measure — Assessment based on the selective character of the legal regime established without taking account of the effects of the measure — Exclusion

(Art. 107(1) TFEU)

4.      State aid — Concept — Selective nature of the measure — Derogation from the general tax system — Assessment by comparison with other undertakings in the same Member State and not with undertakings in other Member States

(Art. 107(1) TFEU)

5.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding an aid scheme incompatible with the internal market — Action brought by an undertaking having received individual aid granted under that scheme and that must be recovered — Admissibility — Irrelevant that no claim made for annulment of the annulment of the legal basis of the decision

(Art. 263, fourth para., TFEU)

1.      See the text of the decision.

(see para. 37)

2.      The criterion relating to the selectivity of a measure makes it possible to distinguish between State aid and general measures of tax or economic policy implemented by the Member States. Thus, for the condition of selectivity to be satisfied, a category of undertakings which are exclusively favoured by the measure at issue must be identified in all cases.

In that regard, Article 107(1) TFEU requires assessment as to whether, under a given legal regime, a State measure is such as to favour certain undertakings or the production of certain goods in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the said regime. Where the measure at issue, even though it constitutes a derogation from the common or ‘normal’ tax regime, is potentially available to all undertakings, it is not possible to compare, in the light of the objective pursued by the common or ‘normal’ regime, the legal and factual situation of undertakings which are able to benefit from the measure with that of undertakings which cannot benefit from it. It follows that, in such a situation, the mere finding that a derogation from the common or normal tax regime has been provided for cannot give rise to selectivity.

Furthermore, it is for the Commission to prove that a measure creates differences between undertakings which, with regard to the objective pursued, are in a comparable factual and legal situation.

(see paras 38, 47-50)

3.      The fact that a tax measure is selective in that it favours only certain groups of undertakings that carry out certain investments abroad is not sufficient to establish that the measure at issue is selective in nature. Article 107(1) TFEU distinguishes between State interventions on the basis of their effects. It is therefore on the basis of the effects of the measure at issue that it is necessary to evaluate whether that measure constitutes State aid, in particular because it is selective. In that regard, to accept that a tax measure is selective without examining its effects could lead to every tax measure the benefit of which is subject to certain conditions being found to be selective, even though the beneficiary undertakings would not share any specific characteristic distinguishing them from other undertakings, apart from the fact that they would be capable of satisfying the conditions to which the grant of the measure is subject.

(see paras 67-69, 72)

4.      The condition relating to selectivity, set out in Article 107(1) TFEU, can be assessed only at the level of a single Member State and emerges only from an analysis of the difference in treatment between the undertakings and the production of certain goods of that State.

Accordingly, the fact that a measure treats undertakings which are taxable in one Member State more favourably than undertakings which are taxable in the other Member States, in particular because the measure facilitates acquisitions by undertakings established in a Member State of shareholdings in the capital of undertakings established abroad, does not affect the analysis of the selectivity criterion.

(see paras 75, 76)

5.      See the text of the decision.

(see paras 90-92)