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Action brought on 3 May 2011 - Sigma Alimentos Exterior v Commission

(Case T-239/11)

Language of the case: Spanish


Applicant: Sigma Alimentos Exterior SL (Madrid, Spain) (represented by: M. Ferre Navarrete, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of the Texto Refundido de la Ley del Impuesto sobre Sociedades ('TRLIS') (the consolidated text of the Spanish Company Tax Act) contains elements of State aid;

alternatively, annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of TRLIS contains elements of State aid when applied to acquisitions of shareholdings which involve acquisition of control;

alternatively, annul Article 4 of the contested decision to the extent that it orders recovery in respect of transactions carried out prior to the publication in Official Journal of the European Union of the final decision under appeal;

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings acquired shareholdings in companies established in the United States and in Peru during the tax years 2008 to 2010 and amortized the financial goodwill generated in the acquisition of majority shareholdings in those companies, pursuant to Article 12(5) of TRLIS.

On 12 January 2011 the Commission adopted the contested decision C(2010)9566 final on the tax amortization of financial goodwill for foreign shareholding acquisitions No C 45/2007 (ex NN 51/2007, ex CP 9/2007). As a consequence of that decision, the Administración Tributaria (Spanish tax authority) commenced verification procedures with the objective of correcting the amortizations applied by the applicant.

In support of its action the applicant relies on two pleas in law:

First plea, based on the failure to satisfy the requirements necessary to consider the measure as State aid.

The applicant maintains in this regard that the main reason why the tax system at issue cannot be considered to be State aid is the fact that the measure concerned is not selective. The Commission commits an error when it holds that there is de facto selectivity because the measure favours national acquisitions and because a shareholding of at least 5% is required. The applicant claims that the Commission arrives at that conclusion by dispensing with any analysis of the types of businesses and business sectors in which the companies which have applied that system intervene.

Second plea, based on the failure to state reasons for the decision.

The applicant considers that the grounds on which the Commission bases its view that there are no explicit legal obstacles in the acquisition of companies in the United States and in Peru are manifestly insufficient.