Action brought on 4 August 2011 - Cementos Molins v Commission

(Case T-424/11)

Language of the case: Spanish

Parties

Applicant: Cementos Molins, SA (Sant Vicenç del Horts, Spain) (represented by: C. Fernández Vicién, I. Moreno-Tapia Rivas and M. López Garrido, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul the contested decision;

order the European Commission to pay the costs.

Pleas in law and main arguments

Pursuant to Article 263 TFEU, the applicant seeks the annulment of the decision of the European Commission of 12 January 2011 in Case No C 45/2007 (ex NN 51/2007, ex CP 9/2007) on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain.¹

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

First plea in law, alleging an infringement of Article 107 TFEU.

In the view of the applicant, the contested decision infringes Article 107 TFEU in so far it finds that the tax amortisation of financial goodwill for foreign shareholding acquisitions, laid down in Articles 12(5) of the Spanish Corporate Tax Act (TRLIS), constitutes State aid which is incompatible with the internal market. The applicant submits that the abovementioned amortisation does not involve any advantage, does not affect intra-Community trade and is not selective.

Second plea in law, alleging an infringement of the principle of the protection of legitimate expectations and the duty to state reasons in relation to the principle of the protection of legitimate expectations.

-    This plea in law is divided into two parts, which both relate to the period during which the applicant was entitled to entertain legitimate expectations, established in Article 1(2) and (3) of the contested decision:

-    First part of the second plea: primarily, infringement of the principle of the protection of legitimate expectations. The applicant submits that that principle should protect all the beneficiaries from recuperation of the aid until the date of publication of the contested decision, since the publication of the decision to initiate proceedings is not sufficient to thwart the legitimate expectations born from the Commission's statements before the European Parliament.

-     Second part of the second plea: in the alternative, infringement of the principle of the protection of legitimate expectations and of the duty to state reasons. The applicant considers that the European Commission was wrong to exclude from the period during which it was entitled to entertain legitimate expectations the whole of the day of publication in the Official Journal of the European Union of the decision to initiate proceedings which led to the adoption of the contested decision. First, in accordance with Community law, the final day of a specified period should be included in that period in full and, second, the exclusion of the final day of that period, in the operative part of the contested decision, is inconsistent with the grounds for the decision.

Third plea in law, alleging an infringement of the principle of proportionality in relation to the principle of the protection of legitimate expectations.

-    The applicant submits that it is disproportionate for the Commission to require, for the application of the principle of the protection of legitimate expectations in the case of Article 1(4) of the contested decision, that explicit legal obstacles exist to cross-border business combinations.

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¹ - Published in the Official Journal of the European Union on 21 May 2011 (OJ 2011 L 135, 1)