Action brought on 4 August 2011 - Banco Bilbao Vizcaya Argentaria v Commission

(Case T-429/11)

Language of the case: Spanish

Parties

Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul Article 1(1) of the decision;

in the alternative, annul Article 1(4) and (5) of the decision;

in the further alternative, annul Article 4 of the decision, or amend its scope as appropriate; and

order the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

This action has been brought against Article 1(1) of the decision of the European Commission of 12 January 2011 in Case No C 45/2007 (ex NN51/2007, ex CP9/2007) on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain ('the decision').

In support of its action, the applicant relies on seven pleas in law.

1.    By its first plea in law, the applicant claims that the Commission infringed Articles 107 and 108 TFEU in finding, in the decision, that Article 12(5) of the consolidated version of the Spanish Corporate Tax Act (Ley del Impuesto sobre Sociedades español; ''TRLIS') constitutes State aid in so far as it provides for tax amortisation of goodwill for acquisitions of shareholdings in non-EU companies (extra-EU acquisitions).

2.    By its second plea in law, the applicant submits that the Commission committed an error of law and of procedure in finding that, for there to be State aid which is unlawful in its entirety, it is sufficient that the implementation of the scheme leads to situations which qualify as aid.

3.    By its third plea in law, the applicant claims that the principle of proportionality has been infringed in so far as it was found in the decision that: (i) the scheme constitutes unlawful aid in its entirety, including in relation to countries such as China and India and in other countries in which it has been shown or could be shown that there are explicit legal obstacles to cross-border business combinations, and that (ii) the scheme also constitutes State aid which is incompatible in its entirety in so far as it permits the deduction of financial goodwill in relation to acquisitions of majority shareholding in foreign companies outside of the EU.

4.    By its fourth plea in law, the applicant claims that the Commission infringed the principles of legitimate expectations and equal treatment in departing from the guidelines on direct taxation and from its administrative practice.

5.     By its fifth plea in law, the applicant claims that the Commission infringed the principle of good administration by having failed to examine the precise scope of the practical obstacles to company mergers outside of the EU (extra-EU mergers).

6.    By its sixth plea in law, the applicant submits that there were errors of law and errors of assessment in the determination of legitimate expectations in the decision.

7.    By its seventh plea in law, the applicant argues that insufficient grounds were given for the decision.

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