JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)

20 September 2023 (*)

(State aid – Aid scheme put into effect by Belgium – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted – Tax ruling – Taxable profit – Excess profit exemption – Advantage – Selectivity – Recovery)

In Cases T‑263/16 RENV, T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16,

Magnetrol International, established in Zele (Belgium), represented by H. Gilliams and L. Goossens, lawyers,

applicant in Case T‑263/16 RENV,

supported by

Soudal NV, established in Turnhout (Belgium),

Esko-Graphics BVBA, established in Ghent (Belgium),

represented by H. Viaene, lawyer,

by

Flir Systems Trading Belgium, established in Meer (Belgium), represented by C. Docclo and N. Reypens, lawyers,

by

Celio International SA, established in Brussels (Belgium), represented by H. Gilliams and L. Goossens,

by

Anheuser-Busch Inbev, established in Brussels,

Ampar, established in Leuven (Belgium),

Atlas Copco Airpower, established in Antwerp (Belgium),

and

Atlas Copco AB, established in Nacka (Sweden),

represented by A. von Bonin, O.W. Brouwer, A. Pliego Selie, T. van Helfteren and A. Haelterman, lawyers,

and by

ZF CV Systems Europe, formerly Wabco Europe, established in Watermael-Boitsfort (Belgium), represented by E. Righini, L. Villani, S. Völcker, K. Beikos-Paschalis and A. Papadimitriou, lawyers,

interveners in Case T‑263/16 RENV,

Puratos, established in Dilbeek (Belgium),

Delta Light, established in Wevelgem (Belgium),

Ontex, established in Buggenhout (Belgium),

applicants in Case T‑265/16,

Siemens Industry Software, established in Leuven,

applicant in Case T‑311/16,

BASF Antwerpen NV, established in Antwerp,

applicant in Case T‑319/16,

Ansell Healthcare Europe NV, established in Anderlecht (Belgium),

applicant in Case T‑321/16,

Trane, established in Zaventem (Belgium),

applicant in Case T‑343/16,

Kinepolis Group, established in Brussels,

applicant in Case T‑350/16,

Vasco Group, established in Dilsen-Stokkem (Belgium),

Astra Sweets, established in Turnhout,

applicants in Case T‑444/16,

Mayekawa Europe NV/SA, established in Zaventem,

applicant in Case T‑800/16,

Celio International SA, established in Brussels,

applicant in Case T‑832/16,

represented by H. Gilliams, J. Bocken and L. Goossens, lawyers,

v

European Commission, represented by P.-J. Loewenthal, B. Stromsky and F. Tomat, acting as Agents,

defendant,

THE GENERAL COURT (Second Chamber, Extended Composition),

composed of A. Marcoulli, President, S. Frimodt Nielsen, V. Tomljenović (Rapporteur), R. Norkus and W. Valasidis, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure,

having regard to the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741),

further to the hearing on 9 February 2023,

gives the following

Judgment

1        By their actions under Article 263 TFEU, the applicants – in Case T‑263/16 RENV, Magnetrol International; in Case T‑265/16, Puratos, Delta Light and Ontex; in Case T‑311/16, Siemens Industry Software; in Case T‑319/16, BASF Antwerpen NV; in Case T‑321/16, Ansell Healthcare Europe NV; in Case T‑343/16, Trane; in Case T‑350/16, Kinepolis Group; in Case T‑444/16, Vasco Group and Astra Sweets; in Case T‑800/16, Mayekawa Europe NV/SA; and in Case T‑832/16, Celio International SA – seek the annulment of Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61; ‘the contested decision’).

I.      Background to the dispute

2        The facts of the dispute and the legal background were set out by the General Court in paragraphs 1 to 28 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and by the Court of Justice in paragraphs 1 to 24 of the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741). For the purposes of the present proceedings, they may be summarised as follows.

3        By an advance ruling issued by the ‘service des décisions anticipées’ (Advance Ruling Commission) of the service public fédéral des finances belge (Belgian Federal Public Service for Finance) under Article 185(2)(b) of the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘the CIR 92’), read in conjunction with Article 20 of the loi du 24 décembre 2002 modifiant le régime des sociétés en matière d’impôts sur les revenus et instituant un système de décision anticipée en matière fiscale (Law of 24 December 2002 amending the corporate income tax system and establishing an advance tax ruling system) (Moniteur belge, 31 December 2002, p. 58817; ‘the Law of 24 December 2002’), Belgian resident companies that were part of a multinational group and Belgian permanent establishments of foreign resident companies that were part of a multinational group could reduce their tax base in Belgium by deducting what was considered to be ‘excess’ profit from the profit which they had recorded. Under that system, part of the profit made by the Belgian entities benefiting from an advance ruling was not taxed in Belgium. According to the Belgian tax authorities, that excess profit arose from the synergies, economies of scale or other benefits resulting from membership of a multinational group and, accordingly, was not attributable to the Belgian entities in question.

4        Following an administrative procedure that was initiated on 19 December 2013 with a letter by which the European Commission requested the Kingdom of Belgium to provide information on the system of excess profit tax rulings, which were based on Article 185(2)(b) of the CIR 92, the Commission adopted the contested decision on 11 January 2016.

5        By the contested decision, the Commission found that the excess profit exemption scheme that was based on Article 185(2)(b) of the CIR 92, pursuant to which the Kingdom of Belgium had issued advance rulings to Belgian entities of multinational groups of undertakings, granting those entities an exemption in respect of part of their profit, constituted a State aid scheme giving its beneficiaries a selective advantage, for the purposes of Article 107(1) TFEU, that was incompatible with the internal market.

6        Thus, the Commission argued, principally, that the scheme at issue granted beneficiaries of the advance rulings a selective advantage, since the excess profit exemption applied by the Belgian tax authorities was a departure from the ordinary Belgian corporate income tax system. In the alternative, the Commission found that the excess profit exemption could confer a selective advantage on beneficiaries of the advance rulings, in so far as that exemption was not in line with the arm’s length principle.

7        Having found that the scheme at issue had been put into effect in breach of Article 108(3) TFEU, the Commission ordered that the aid thus granted be recovered from its beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.

A.      The original judgment

8        Following the adoption of the contested decision, the Kingdom of Belgium and several undertakings, including the applicants, brought actions for the annulment of that decision; those brought by the applicants were lodged at the Registry of the General Court between 25 May and 25 November 2016.

9        On 16 February 2018, acting pursuant to Article 69(d) of the Rules of Procedure of the General Court, the President of the Seventh Chamber of the General Court, having heard the views of the parties, decided to stay the proceedings, inter alia, in Cases T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, pending final judgment in Cases T‑131/16 and T‑263/16.

10      By the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91; ‘the original judgment’), in the first place, the General Court rejected as unfounded the pleas in law alleging, in essence, that the Commission had misused its powers in relation to State aid and encroached upon the Kingdom of Belgium’s exclusive jurisdiction in the field of direct taxation.

11      In the second place, the General Court held that, in this case, the Commission had incorrectly found that there was an aid scheme, in breach of Article 1(d) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and, consequently, the General Court annulled the contested decision without considering it necessary to examine the other pleas that had been put forward against it.

B.      The judgment on appeal

12      Following the appeal brought against the original judgment, the Court of Justice delivered its judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741; ‘the judgment on appeal’).

13      In the judgment on appeal, the Court of Justice held that the original judgment was vitiated by errors of law in so far as it had been held that the Commission had wrongly concluded that there was an aid scheme in this case.

14      On the basis of the errors identified by the Court of Justice, the original judgment was set aside.

15      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice decided to give final judgment on certain pleas in law where it considered that the state of the proceedings was such as to permit it to do so, namely those concerning the Commission’s encroachment upon the exclusive jurisdiction of the Kingdom of Belgium in the field of direct taxation, and those relating to the existence of an aid scheme.

16      Thus, first of all and like the General Court, the Court of Justice rejected the pleas relating to the Commission’s encroachment upon the exclusive jurisdiction of the Kingdom of Belgium in the field of direct taxation.

17      Next, the Court of Justice concluded that the excess profit exemption scheme could be considered an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, and that, therefore, the pleas in law relating to the existence of an aid scheme had to be rejected as being unfounded.

18      Lastly, with regard to the other pleas for annulment relied on by the Kingdom of Belgium and by Magnetrol International, the Court of Justice considered that the state of the proceedings was not such as to permit final judgment to be given, and referred the case back to the General Court in order for it to rule on those pleas.

II.    Procedure and forms of order sought

19      Following the judgment on appeal and in accordance with Article 216(1) of the Rules of Procedure, Case T‑263/16 RENV was assigned to the Second Chamber (Extended Composition) of the General Court on 20 October 2021.

20      In accordance with Article 217(1) of the Rules of Procedure, Magnetrol International and the Commission lodged statements of written observations within the time limits prescribed. Supplementary statements of written observations were also lodged in accordance with Article 217(3) of the Rules of Procedure.

21      By separate document lodged on 2 March 2022, Magnetrol International requested that Annex 1 to the observations lodged by the Commission in Case T‑263/16 RENV, pursuant to Article 217(3) of the Rules of Procedure, be withdrawn from the case file or, in the alternative, that the General Court request observations from the parties referred to in that annex and, subsequently, hear its views on those observations. By order of 14 September 2022, the General Court decided to reserve its decision on that request until its ruling on the substance of the case in Case T‑263/16 RENV, pursuant to Article 130(7) of the Rules of Procedure.

22      Having heard the parties, the Second Chamber of the General Court decided, on 26 April 2022, to resume the proceedings in Cases T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, pursuant to Article 71(3) of the Rules of Procedure.

23      Following the resumption of proceedings in their respective cases, the parties concerned lodged their observations, within the time limits prescribed, in response to questions from the General Court concerning the recent case-law of the Court of Justice and of the General Court.

24      In addition, the main parties were heard in relation to the possible joinder of the present cases for the purposes of the oral part of the procedure and of the decision closing the proceedings.

25      In the light of the orders of 1 August 2022, Atlas Copco Airpower and Atlas Copco v Commission (C‑31/22 P(I), EU:C:2022:620), of 1 August 2022, Anheuser-Busch Inbev and Ampar v Magnetrol International and Commission (C‑32/22 P(I), EU:C:2022:621), and of 1 August 2022, Soudal and Esko-Graphics v Magnetrol and Commission (C‑74/22 P(I), EU:C:2022:632), all the interveners before the Court of Justice in the appeal proceedings were considered to be interveners before the General Court in Case T‑263/16 RENV, and the observations they had submitted pursuant to Article 217(1) of the Rules of Procedure were placed on the file of that case.

26      The applicants claim that the General Court should:

–        annul the contested decision;

–        in the alternative, annul Articles 2 to 4 of the contested decision;

–        in any event, annul Articles 2 to 4 of the operative part of that decision in so far as those articles (i) require aid to be recovered from entities other than those that were issued with a tax ruling, and (ii) order the recovery of an amount equal to the relevant beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration;

–        order the Commission to pay the costs.

27      The Commission contends that the General Court should:

–        dismiss the actions;

–        order the applicants to pay the costs.

III. Law

28      It is appropriate that the present cases should be joined for the purposes of the decision closing the proceedings, in accordance with Article 68(1) of the Rules of Procedure, the parties having been heard.

A.      The situation of Celio International

29      Under the heading ‘Admissibility’ in its application, Celio International claims, in Case T‑832/16, that it is not affected by the contested decision, which relates solely to excess profit tax rulings, whereas it did not receive an advance ruling. It maintains that the advance pricing agreement which it concluded with the Belgian tax administration is not an excess profit tax ruling.

30      First, it must be noted that Celio International is in fact included as a beneficiary of the scheme at issue in the list annexed to the contested decision, although the list provided was regarded by the Commission ‘only … as illustrative’.

31      Secondly, it must be pointed out that, in the judgment on appeal, the Court of Justice observed that, in the context of an aid scheme, the Commission could confine itself to examining the characteristics of that scheme in order to assess whether it granted a selective advantage to its beneficiaries in relation to their competitors and was likely to affect trade between Member States. Thus, in a decision which concerned such a scheme, the Commission was not required to carry out an analysis of the aid granted in individual cases under the scheme (judgment on appeal, paragraph 77). Therefore, the Commission cannot be criticised for having failed to take into account Celio International’s individual situation so far as concerns, specifically, the latter’s transfer pricing agreement with the Belgian tax authorities.

32      Thirdly and for the same reasons, the contested decision cannot be regarded as being vitiated by a failure to provide an adequate statement of reasons because it did not provide a specific response to Celio International’s observations in relation to its individual situation.

33      Fourthly and in any event, in the light of Celio International’s own description of the transfer pricing agreement, notably in its observations lodged in the context of the administrative procedure, it may be concluded that that agreement between the Advance Ruling Commission and Celio International was based on the fact that the latter belonged to a multinational group of undertakings and that it performed, in a centralised manner, a number of functions for the whole group. That agreement provided, in essence, that in each tax year following its adoption and depending on the results obtained from transactions with other entities of the same group, Celio International would be taxed on the profit corresponding to a particular operating margin. Thus, it was stated that where Celio International’s recorded profit fell below that operating margin, in order to determine its taxable profit, an upward adjustment of the profit would be made on the basis of Article 185(2)(a) of the CIR 92, whereas if the recorded profit exceeded that threshold, a downward adjustment would be made on the basis of Article 185(2)(b) of the CIR 92. That downward adjustment was not conditional on a primary upward adjustment being made in another Member State.

34      Consequently, in so far as the agreement in question provided for a downward adjustment if the profit actually recorded by Celio International exceeded a hypothetical profit corresponding to a given operating margin, an exemption was granted in respect of profit in excess of that hypothetical profit, as the Commission argued in the contested decision.

35      In those circumstances, Celio International’s arguments to the effect that its situation does not come within the scope of the contested decision cannot be relied on in order to challenge that decision, in so far as that decision concerns an aid scheme. They are, in any event, unfounded.

B.      Substance

36      In support of their actions and on the basis of virtually identical applications, the applicants raise four pleas in law, the first of which alleges a manifest error of assessment, misuse of powers and failure to state reasons in that the contested decision determined that there was an aid scheme; the second, infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the decision classified the scheme at issue as a selective measure; the third, infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the Commission concluded that the scheme at issue gave rise to an advantage; and the fourth, relied on in the alternative, infringement of Article 107 TFEU, breach of the principles of the protection of legitimate expectations and proportionality, a manifest error of assessment, misuse of powers and failure to state reasons, in so far as the contested decision ordered the Kingdom of Belgium to recover aid.

37      Given that the Court of Justice has already ruled in the judgment on appeal on the first plea put forward by Magnetrol International in Case T‑263/16, there is no longer any need for the General Court to rule on that plea in Case T‑263/16 RENV. So far as the other cases are concerned, that plea contesting the Commission’s finding of an aid scheme is still part of the disputes on which the General Court must rule, since that plea has not been formally withdrawn.

1.      First plea in law, put forward in Cases T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, alleging a manifest error of assessment, misuse of powers and failure to state reasons in so far as the contested decision found that there was an aid scheme

38      In Cases T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, it is claimed, in essence, that the contested decision fails to demonstrate the existence of an aid scheme, in accordance with Article 1(d) of Regulation 2015/1589, and that, in any event, the finding of an aid scheme is based on an inadequate and contradictory statement of reasons.

39      The Commission contends that that plea should be rejected.

40      In that regard, it should be borne in mind that, in the judgment on appeal, the Court of Justice rejected as unfounded the plea put forward by Magnetrol International, alleging that it was incorrectly concluded that there was an aid scheme in this case.

41      In those circumstances, like the Court of Justice in the judgment on appeal, this Court must reject the first plea in law relied on in Cases T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, in so far as it is identical to that relied on by Magnetrol International in Case T‑263/16.

2.      Second plea in law, inasmuch as it alleges an infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the contested decision classifies the scheme at issue as a selective measure, as part of the Commission’s primary line of reasoning

42      The second plea alleges an infringement of Article 107 TFEU and of the obligation to state reasons, and a manifest error of assessment. In the context of that plea, directed against the Commission’s – primary – line of reasoning as to the existence of a selective advantage, the applicants claim, in essence, that the Commission erroneously conflated the notions of ‘advantage’ and ‘selectivity’ and that it failed to demonstrate that the excess profit exemption was a selective measure that consisted in a difference in treatment of companies in comparable factual and legal situations and that therefore the scheme at issue was selective.

43      The Commission contends that the plea put forward by the applicants should be rejected.

(a)    The joint analysis of the concepts of ‘advantage’ and of ‘selectivity’

44      At the outset, it must be borne in mind that the statement of reasons for a measure adopted by the Commission must enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and so that the EU judicature can exercise its power of review. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraphs 62 and 63; of 16 October 2014, Eurallumina v Commission, T‑308/11, not published, EU:T:2014:894, paragraph 44; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 80).

45      Moreover, it must be noted that, in the analysis of the conditions set out in Article 107(1) TFEU that must be satisfied in order for a measure to constitute State aid, including that relating to the existence of a selective advantage, the concept of ‘advantage’ and that of its ‘selectivity’ are two separate criteria. So far as advantage is concerned, the Commission must show that the measure improves the financial situation of the recipient (see, to that effect, judgment of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 15). However, so far as selectivity is concerned, the Commission must show that the advantage does not benefit other undertakings that are in a factual and legal situation comparable to that of the recipient in the light of the objective of the reference system (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).

46      In that regard, it should be noted that, according to the case-law, the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings (judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59).

47      It must however be stated that, according to the case-law of the Court of Justice, those two criteria may be examined together as a ‘third condition’ laid down by Article 107(1) TFEU, requiring there to be a ‘selective advantage’ (see, to that effect, judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 32).

48      In the contested decision, the Commission’s reasoning with regard to the advantage is set out in its analysis of the existence of a selective advantage, that is, in Section 6.3, entitled ‘Existence of a selective advantage’. In that context, the Commission did in fact examine the criterion of advantage.

49      As a preliminary point, in recital 125 of the contested decision, the Commission indicated that the excess profit exemption applied by the Belgian tax authorities was not provided for by the Belgian corporate income tax system. Furthermore, in recital 126 of the contested decision, the Commission highlighted the fact that that exemption was calculated in disregard of the total profit actually recorded by the Belgian entity and the adjustments provided for by law. In recital 127 of the contested decision, it stated that although the Belgian system contained certain special provisions applicable to groups, these were aimed at putting integrated multinational group entities and standalone entities on an equal footing.

50      In that context, in recital 133 of the contested decision, the Commission indicated that, under the Belgian corporate income tax system, corporate entities resident or operating through a permanent establishment in Belgium were taxed on their profit actually recorded, not on a hypothetical level of profit, which was why the excess profit exemption conferred an advantage on Belgian group entities benefiting from the scheme at issue.

51      In recital 135 of the contested decision, the Commission recalled the case-law according to which an economic advantage may be granted through a reduction in an undertaking’s tax burden and, in particular, through a reduction in the tax base or in the amount of tax due. Thus, the Commission found that, in this instance, the scheme at issue allowed corporate beneficiaries of advance rulings to reduce their tax liability by deducting a so-called ‘excess’ profit from their profit that was actually recorded. That excess profit was determined by estimating the hypothetical average profit of comparable standalone undertakings, so that the difference between the profit actually recorded and that hypothetical average profit was then translated into an exemption percentage underpinning the calculation of the tax base agreed for the five years of the advance ruling’s application. In so far as that tax base, thus determined on the basis of the advance rulings granted under the scheme at issue, was lower than it would have been had those rulings not been issued, an advantage would have arisen.

52      Consequently, it is apparent from the recitals of the contested decision highlighted in paragraphs 49 to 51 above that the advantage identified by the Commission consisted in the non-taxation of the excess profit of corporate beneficiaries, and in the taxation of their profit calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, in accordance with advance rulings under the scheme at issue. According to the Commission, such taxation represented a lowering of the tax burden of the beneficiaries of the scheme, in comparison with the burden that would have arisen from normal taxation, under the Belgian corporate income tax system, which would have covered all profits actually recorded, after applying the adjustments provided for by law.

53      Next, the actual analysis of the selectivity of that advantage is set out in recitals 136 to 141 of the contested decision, under Section 6.3.2.1 of that decision, so far as concerns the Commission’s primary line of reasoning as to selectivity, based on the existence of a derogation from the general Belgian corporate income tax system. Moreover, the selectivity of the advantage represented by the excess profit exemption is also analysed in recitals 152 to 170 of the contested decision, under Section 6.3.2.2 of that decision, so far as concerns the Commission’s subsidiary line of reasoning as to selectivity, based on the existence of a derogation from the arm’s length principle.

54      It follows from the above that the justifications put forward by the Commission to support its findings as to the existence of an advantage and its selective nature do meet the requirements of the obligation to state reasons as set out in paragraph 44 above.

55      Moreover, the fact that, in terms of form, the analysis of advantage was included in a section that also covers the examination of selectivity does not reveal a failure to carry out a substantive examination of both concepts, in so far as the existence of an advantage, on the one hand, and the existence of its selective nature, on the other, are in fact assessed (see, to that effect, judgment of 24 September 2019, Netherlands and Others v Commission, T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 129). Accordingly, the applicants’ complaints alleging an error of law and a manifest error of assessment as a result of that joint analysis must be rejected.

(b)    The existence of a selective advantage granted by the scheme at issue

56      In essence, the applicants, supported in that regard by the interveners in Case T‑263/16 RENV, Soudal NV, Esko-Graphics BVBA, Flir Systems Trading Belgium, Celio International, Anheuser-Busch Inbev, Ampar, Atlas Copco Airpower, Atlas Copco AB and ZF CV Systems Europe, claim that the Commission failed to demonstrate that the excess profit exemption represented a misapplication by the Belgian tax authorities of Article 185(2)(b) of the CIR 92 and thus a derogation from the reference system or that such application gave rise to a difference in treatment of companies in comparable factual and legal situations. The Commission had therefore failed to demonstrate that the scheme at issue was selective.

57      Accordingly, the applicants claim that, in the context of its primary line of reasoning, first, the Commission defined the reference system incorrectly, by regarding the objective of the tax system as part of normal taxation. In addition, the Commission incorrectly took into account as normal taxation under Article 185(2)(b) of the CIR 92 its own interpretation of that provision. Secondly, they maintain that the Commission incorrectly concluded that the Belgian tax authorities had applied that provision contra legem. Thirdly, the applicants submit that the Commission incorrectly found that the scheme at issue entailed different treatment of economic operators who, in the light of the objectives intrinsic to the rules at issue, were in a comparable factual and legal situation.

(1)    The reference system

58      The applicants, in the light of recent case-law in relation to State aid, complain that the Commission made several errors vitiating its assessment of the reference system on which it based its consideration of the selectivity of the scheme at issue. Those errors concerned the inclusion of the objective of the tax system in the definition of the reference system and the misinterpretation of Article 185(2)(b) of the CIR 92, which was part of that reference system.

59      In that regard, it must be recalled that the determination of the reference system is of particular importance in the case of tax measures, since the existence of an economic advantage for the purposes of Article 107(1) TFEU may be established only when compared with ‘normal’ taxation. Thus, determination of the set of undertakings which are in a comparable factual and legal situation depends on the prior definition of the legal regime in the light of whose objective it is necessary, where applicable, to examine whether the factual and legal situation of the undertakings favoured by the measure in question is comparable with that of those which are not (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 69 and the case-law cited).

60      In that context, it has been held that the determination of the reference system, which must be carried out following an exchange of arguments with the Member State concerned, must follow from an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State (see judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 62 and the case-law cited).

61      In addition, it is apparent from settled case-law that, while the Member States must thus refrain from adopting any tax measure liable to constitute State aid that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member State concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its fiscal autonomy, the characteristics constituting the tax, which define, in principle, the reference system or the ‘normal’ tax regime, from which it is necessary to analyse the condition relating to selectivity. This includes, in particular, the determination of the basis of assessment and the taxable event (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 65 and 73 and the case-law cited).

62      It follows that only the national law applicable in the Member State concerned must be taken into account in order to identify the reference system for direct taxation, that identification being itself an essential prerequisite for assessing not only the existence of an advantage, but also whether it is selective in nature.

63      Furthermore, in order to determine whether a tax measure has conferred a selective advantage on an undertaking, it is for the Commission to carry out a comparison with the tax system normally applicable in the Member State concerned, following an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State. Parameters and rules external to the national tax system at issue cannot therefore be taken into account in the examination of the existence of a selective tax advantage within the meaning of Article 107(1) TFEU and for the purposes of establishing the tax burden that should normally be borne by an undertaking, unless that national tax system makes explicit reference to them (see, to that effect, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 92 and 96).

64      In this case, the Commission set out in recitals 121 to 129 of the contested decision its position concerning the reference system.

65      Thus, in recitals 121 and 122 of the contested decision, the Commission stated that the reference system was the ordinary system of taxation of corporate profits under the general Belgian corporate income tax system, which had as its objective the taxation of profit of all companies subject to tax in Belgium. The Commission noted that the Belgian corporate income tax system applied to companies resident in Belgium as well as to Belgian branches of non-resident companies. Under Article 185(1) of the CIR 92, companies resident in Belgium were liable to corporate income tax on the total amount of their profit, unless a double taxation treaty applied. Moreover, under Articles 227 and 229 of the CIR 92, non-resident companies were only taxable on specific Belgium-sourced income. The Commission also stated that, in both cases, Belgian corporate income tax was payable on the total profit, which was established according to the rules on calculating profit as defined in Article 24 of the CIR 92. Under Article 185(1) of the CIR 92, read in conjunction with Articles 1, 24, 183, 227 and 229 of the CIR 92, the total profit was calculated as corporate income, minus deductible expenses which were typically recorded in the accounts, so that the profit actually recorded formed the starting point for calculating the total taxable profit, without prejudice to the subsequent application of upward and downward adjustments provided for by the Belgian corporate income tax system.

66      As regards, in the first place, the inclusion of the objective of the tax system in the definition of the reference system, it must be noted that the objective of the reference system is indeed referred to by the Commission in connection with that definition. However, contrary to what the applicants claim in reliance on the Opinion of Advocate General Pikamäe in Fiat Chrysler Finance Europe v Commission (C‑885/19 P, EU:C:2021:1028), the mere fact that the Commission referred to the objective of the reference system does not mean that it examined the selectivity of the scheme at issue in relation to the objective alone.

67      In that regard, it is apparent from recitals 121 and 122 of the contested decision that, for the purpose of determining the reference system, the Commission took into account the provisions of the CIR 92 applicable to Belgian corporate income tax, by referring to the detailed description of those provisions in Section 2 of the contested decision. The Commission did not, therefore, determine the reference system by reference to the objective of the Belgian tax system.

68      In addition, it must be recalled that, according to the settled case-law referred to in paragraph 45 above, in the context of the selectivity analysis, the objective of the reference system is relevant for the purposes of comparing the situation of operators covered by the measure at issue with that of other operators. It was for the purposes of that comparison that the objective of the reference system was referred to in recitals 122 and 129 of the contested decision.

69      Furthermore, it is apparent from Section 6.3.2.1 of the contested decision that the Commission examined the extent to which the Belgian tax authorities’ application of Article 185(2) of the CIR 92 in the context of advance rulings derogated from the Belgian corporate income tax system described in Section 6.3.1 of the contested decision, which refers to Section 2 of that decision in which the provisions of the CIR 92 concerning the Belgian corporate income tax system are described. Thus, contrary to the applicants’ contention, it is precisely by reference to the provisions of applicable Belgian tax law, including Article 185(2) of the CIR 92, that the Commission examined whether the application of those provisions by the Belgian tax authorities derogated from that system.

70      As regards, in the second place, the alleged misinterpretation of Article 185(2)(b) of the CIR 92, the applicants, supported in that regard by the interveners, complain that the Commission found that the taxable profit was based on the total recorded profit of companies subject to tax, when, according to Belgian tax law, in the case of associated undertakings, the taxable profit should be determined on the basis of the arm’s length principle and taking into account the upward and downward adjustments provided for in that regard.

71      First, it must be noted, as the Commission correctly indicated in recital 122 of the contested decision, that, for tax purposes, in Belgium, taxable income comprises inter alia profits as defined in Article 24 of the CIR 92 in the section relating to taxation of natural persons.

72      Article 24 of the CIR 92 provides that the taxable income of industrial, commercial and agricultural undertakings includes all income from entrepreneurial activities such as profit from ‘all the operations handled by those undertakings or through their intermediation’ as well as profit from ‘all increases in value of their assets … or decrease in value of their liabilities … when that profit has been realised and registered in the accounts’.

73      Moreover, recital 122 of the contested decision refers to Article 183 and Article 185(1) of the CIR 92. Under Article 183 of the CIR 92, income subject to corporate tax is the same as that envisaged by personal income tax, the calculation of which is based on the principle that the taxable income is made up of all net income, including profit, less deductible expenses. Furthermore, under Article 185(1) of the CIR 92, companies are taxable on the total amount of profit.

74      It follows that, according to the provisions of the CIR 92, for corporate income tax purposes, taxable revenue is calculated on the basis of all profits made or recorded by undertakings subject to taxation in Belgium, profits to which the deductions provided for by law are to be applied.

75      Secondly, contrary to what is claimed by the applicants and the interveners, the Commission did not disregard the fact that, in the case of profits on transactions between associated companies, adjustments had to be made in order to determine the taxable profit of the company subject to taxation in Belgium.

76      Admittedly, it is indicated in recital 133 of the contested decision that in the context of the ordinary system of taxation of corporate profits under the Belgian corporate income tax system, entities subject to taxation in Belgium are taxed on their total profit, that is, on their profit actually recorded, not on a hypothetical level of profit.

77      However, that finding does not mean that the Commission failed to take into account the adjustments provided for by the Belgian corporate income tax system. Indeed, in recital 123 of the contested decision, in particular, the Commission recognised that, specifically under Article 185(2)(b) of the CIR 92, in order to determine the taxable profit of a Belgian undertaking, there was a possibility of making downward adjustments where part of the profit of that undertaking was already included in the taxable profit of an associated foreign undertaking.

78      Thus, contrary to the applicants’ contention, the position taken by the Commission in the contested decision does not mean that all profit recorded by companies that are subject to taxation in Belgium must be taxed by the Belgian tax authorities without any adjustments being made to the profits recorded in the accounts of those companies. In fact, the Commission itself takes account of the fact that the total recorded profit provides the basis for calculation which is subject to the adjustments provided for by the ordinary Belgian corporate income tax system.

79      Moreover, it is apparent from recital 68 of the contested decision that the Commission does not criticise the Kingdom of Belgium for applying adjustments generally, but that it is only the downward adjustment in the context of the excess profit scheme which it regarded as contra legem.

80      Thirdly, as regards the term ‘exemption’ used by the Commission to define the excess profit system under the scheme at issue, it is common ground that that system was described by the Belgian tax authorities themselves as an ‘excess profit exemption’, consisting in the taxation of only part of the profit, as defined by the company in question together with the Advance Ruling Commission. Thus, part of the profit that is considered to be excess profit, on the basis of the percentage prescribed by the advance ruling, is excluded from the tax base of the company in question for each tax year of the period of validity of the advance ruling, irrespective of the nature and amount of the profit made by that company. Such a system can hardly be designated a mere ‘adjustment’, contrary to what is claimed by the applicants and the interveners. The Commission cannot, therefore, be criticised for having described the scheme applicable to excess profits as an exemption.

81      In those circumstances, the applicants’ arguments in relation to the inclusion of the objective of the tax system in the definition of the reference system and to the misinterpretation of Article 185(2)(b) of the CIR 92, which they contend is part of that reference system, do not invalidate the Commission’s determination of the reference system in the contested decision.

(2)    Whether there is a derogation from the reference system as a result of the Belgian tax authorities’ application of Article 185(2)(b) of the CIR 92

82      In essence, the applicants claim that the Commission incorrectly found that the Belgian tax authorities had applied Article 185(2)(b) of the CIR 92 contra legem and that it inferred from this that there was a derogation from the reference system.

83      In that regard, it must be noted that, according to the case-law, in examining the selectivity of a tax measure, after first identifying and examining the common or ‘normal’ tax regime applicable in the Member State concerned, that is to say, the reference system, it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in the light of the objective assigned to the tax system of the Member State concerned, are in a comparable factual and legal situation (see judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49 and the case-law cited).

84      It should be borne in mind that, in recitals 123 to 128 of the contested decision, the Commission indicated that the excess profit exemption was not an inherent part of the reference system.

85      In addition, in Section 6.3.2.1 of the contested decision, the Commission found, principally, that the Belgian excess profit exemption scheme derogated from the general Belgian corporate income tax system, in so far as that system provided for companies to be taxed on their total profit, that is, their profit actually recorded, not on a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law.

86      At the outset, as the Commission correctly asserted in recital 125 of the contested decision, it should be pointed out that the excess profit exemption, as practised by the Belgian tax authorities, is not prescribed by any provision of the CIR 92.

87      It must be noted that the Commission based its analysis of Article 185(2) of the CIR 92 on the wording of that provision and the texts that accompanied its entry into force. In recitals 29 to 38 of the contested decision, the Commission described in detail, first, the text of Article 185(2) of the CIR 92, introduced by the loi du 21 juin 2004, modifiant le [CIR 92] et la loi du 24 décembre 2002 (Law of 21 June 2004 modifying the CIR 92 and the Law of 24 December 2002) (Moniteur belge, 9 July 2004, p. 54623; ‘the Law of 21 June 2004’); secondly, the explanatory memorandum to the draft of that law, presented to Belgium’s Chamber of Representatives by the Belgian Government on 30 April 2004 (‘the Memorandum to the Law of 21 June 2004’); and, thirdly, the circular of 4 July 2006 concerning Article 185(2) of the CIR 92 (‘the Circular of 4 July 2006’).

88      In the version applicable to the present cases, Article 185(2) of the CIR 92, to which reference is made in recital 29 of the contested decision, is worded as follows:

‘Without prejudice to the second paragraph, for two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:

…

(b)      when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the profit of the first company is adjusted in an appropriate manner.

The first paragraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/436) of 23 July 1990 or of a Convention for the avoidance of double taxation.’

89      Next, the Memorandum to the Law of 21 June 2004, referred to in recital 34 of the contested decision, states that Article 185(2)(b) of the CIR 92 provides for an appropriate correlative adjustment in order to avoid or undo a (potential) double taxation and that a correlative adjustment should be made only if the tax administration or the Advance Ruling Commission considers both the principle and the amount of the primary adjustment to be justified.

90      Moreover, the Memorandum to the Law of 21 June 2004 makes clear that that provision does not apply if the profit made in the partner State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied, since the Belgian tax authorities are not obliged to accept the consequences of an arbitrary or unilateral adjustment in the partner State.

91      Lastly, the Circular of 4 July 2006, referred to in recital 38 of the contested decision, reiterates that such a downward adjustment does not apply in cases where the primary upward adjustment in another tax jurisdiction is exaggerated. That circular, moreover, largely reproduces the text of the Memorandum to the Law of 21 June 2004, in that it recalls that the corresponding downward adjustment is informed by the arm’s length principle, that its objective is to avoid or undo a (potential) double taxation and that it must be made in an appropriate manner, that is, that the Belgian tax authorities can make that adjustment only if both the principle and the amount of that adjustment are justified.

92      Accordingly, it is apparent from the wording of Article 185(2)(b) of the CIR 92 that the downward adjustment is envisaged in the context of cross-border relationships between two associated companies and that it must be a correlative adjustment, in the sense that it is applicable only if the profit that is to be adjusted is already included in the profit of the other company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies.

93      That finding is confirmed both by the Memorandum to the Law of 21 June 2004 and by the Circular of 4 July 2006, which make clear that both the principle and the amount of the correlative adjustment must be appropriate and that that adjustment should not be made if the profit made in another State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied. Those texts indicate that the downward adjustment provided for by Article 185(2)(b) of the CIR 92 requires a correlation between the profit adjusted downwards in Belgium and profit included in another group company established in another State.

94      In addition, while, admittedly, those texts refer to the objective of avoiding potential double taxation, that reference cannot eliminate the condition expressly laid down in Article 185(2)(b) of the CIR 92, relating to the fact that the profit to be adjusted must already have been included in the profit of another company and that the profit so included is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. Thus, the adjustment provided for in Article 185(2)(b) of the CIR 92 is not conditional on the profit to be adjusted actually having been taxed in another State. The application of that provision requires only that the profit to be adjusted should have been included in the profit of another entity and be profit which should have been made if the agreed terms of their relationship had been those that would have been agreed between independent companies. Indeed, it is precisely where the profit of a Belgian entity is already included in the profit of another company, established in another State, that the possibility of double taxation can arise.

95      By contrast, the excess profit scheme applied by the Belgian tax authorities provides for a downward profit adjustment without the conditions laid down in Article 185(2)(b) of the CIR 92 being satisfied.

96      That scheme, as described by the Commission in recitals 13 to 22 of the contested decision, consisted, in essence, in an abstract unilateral exemption of a fixed part or percentage of the profit actually recorded by a Belgian entity forming part of a multinational group.

97      In addition, in recitals 39 to 42 of the contested decision, the Commission took into account the replies given by the Belgian Minister for Finance on 13 April 2005, 11 April 2007 and 6 January 2015 to parliamentary questions on the application of Article 185(2)(b) of the CIR 92. Those replies explain the administrative practice of the Belgian tax authorities relating to excess profit.

98      It is apparent from those replies that, in the context of the excess profit scheme applied by the Belgian tax authorities, the downward adjustment of profit enabling that excess profit to be deducted from the tax base was not conditional upon the exempted profit having been included in the profit of another company and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies.

99      It is, moreover, apparent from the explanations given by the Kingdom of Belgium, as set out in particular in recitals 15 to 20 of the contested decision, that the exemption applied by the Belgian tax authorities under the scheme at issue was based on an exemption percentage, calculated on the basis of a hypothetical average profit for the Belgian entity, obtained using a profit level indicator derived from a comparison with the profit of comparable standalone companies and fixed as a point in the interquartile range of the chosen profit level indicator of a set of comparable standalone companies. That exemption percentage would have been applicable for a number of years, that is to say, during the period of validity of the advance ruling. Thus, the resulting starting point for the taxation of Belgian entities was not the full profit actually recorded, within the meaning of Articles 1, 24, 183 and Article 185(1) of the CIR 92, to which the adjustments provided for by law in the case of groups of undertakings would have been applied under Article 185(2) of the CIR 92; rather, it was a hypothetical profit that disregarded the total profit made by the Belgian entity in question and the adjustments provided for by law.

100    As regards the arguments advanced by the applicants in reliance on a judgment of the rechtbank van eerste aanleg van Brussel (Court of First Instance, Brussels, Belgium) of 21 June 2019, it must be noted that the question that arose in the proceedings that gave rise to that judgment was whether the Belgian tax administration could, under Article 23 of the Law of 24 December 2002, ignore two advance rulings issued by the Advance Ruling Commission, to which that court replied in the negative. In that regard, that court explicitly held that, in itself, the application of Article 185(2)(b) of the CIR 92 was not part of the dispute in question. However, for the sake of completeness, in response to an argument of the Belgian tax administration relating to the scope of Article 185(2)(b) of the CIR 92, that court indicated that the application of that provision required an assessment of the profit of each of the companies involved in the intra-group cross-border relationship. In addition, while making clear that the application of Article 185(2)(b) of the CIR 92 was intended to avoid double taxation, the rechtbank van eerste aanleg van Brussel (Court of First Instance, Brussels) rejected as irrelevant the argument of the Belgian administration which challenged the application of that provision because of the absence of double taxation in that case. That judgment cannot, therefore, call into question the Commission’s findings.

101    Thus, the Commission was fully entitled to conclude, in recital 136 of the contested decision, that Article 185(2)(b) of the CIR 92, which the Kingdom of Belgium relied on as the basis for the scheme at issue, did not have the meaning or effect suggested by that scheme and accordingly that that scheme constituted, rather, a derogation from Belgian tax law, including Article 185(2)(b) of the CIR 92.

102    Consequently, the Commission did not err in stating, in the context of its primary line of reasoning, that the excess profit exemption scheme derogated from the ordinary Belgian corporate income tax system.

(3)    Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation

103    The applicants claim that the Commission incorrectly found that the scheme at issue resulted in a difference in treatment of beneficiaries in comparison with other economic operators in a comparable situation.

104    In that regard, it should be noted that, in recitals 138 to 140 of the contested decision, the Commission put forward three alternative grounds for its conclusion. It is appropriate to examine each of these in turn, for the sake of completeness.

(i)    Different treatment of beneficiaries forming part of a multinational group of undertakings

105    The Commission found, in recital 138 of the contested decision, that the scheme was selective because it was only open to entities that were part of a multinational group of undertakings.

106    It is true that Article 185(2)(b) of the CIR 92 is intended to apply to integrated multinational group companies. However, as is apparent from the Memorandum to the Law of 21 June 2004, the purpose of Article 185(2) of the CIR 92 is to put associated and unrelated undertakings on an equal footing.

107    In that regard, as stated in paragraph 65 above, it must be recalled that the objective of the ordinary Belgian corporate income tax system, as is apparent from recital 129 of the contested decision, is the taxation of all the taxable profits of the entities subject to Belgian corporate income tax, whether they are standalone entities or form part of a multinational group of undertakings. In addition, as indicated in paragraph 74 above, according to the normal rules of taxation in Belgium, the starting point for the taxable profit of undertakings is all the profit realised or registered in their accounts.

108    By contrast, the excess profit exemption applied by the Belgian tax authorities, in so far as it derogates from Article 185(2) of the CIR 92, granted a tax reduction to the beneficiaries concerned, on the ground that they were part of a multinational group of undertakings, by allowing them to deduct part of their recorded profit from their tax base, without that exempted profit having been included in the profit of another group company.

109    Therefore, entities forming part of a multinational group which benefited under the scheme at issue from an excess profit exemption, in the form of an exemption percentage calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, would be treated differently from other entities, whether standalone or forming part of a group of undertakings, which would have been taxed in accordance with the normal Belgian rules of corporate income tax on their total profit actually recorded, where appropriate, in the case of integrated entities, after adjustment pursuant to Article 185(2)(b) of the CIR 92 under the conditions laid down in that provision.

110    Accordingly, the Commission cannot be criticised for having stated that the entities forming part of a multinational group which benefited from the excess profit exemption pursuant to the scheme at issue, as an adjustment which is not as such provided for by law, were treated differently from other entities in Belgium that did not benefit from it, although those entities were in a comparable factual and legal situation, in the light of the objective of the ordinary Belgian corporate income tax system, which is the taxation of all taxable profits of all companies resident or operating through a permanent establishment in Belgium.

(ii) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium

111    In recital 139 of the contested decision, the Commission stated that the scheme at issue was selective in so far as it was not open to companies that may have decided not to make investments, create employment or centralise activities in Belgium. The Commission noted that Article 20 of the Law of 24 December 2002 made the adoption of advance rulings conditional on the existence of a situation or of a transaction that had not had tax consequences and that an advance ruling was necessary in order to benefit from the excess profit exemption.

112    The Commission also noted that, in the sample of advance rulings granting an excess profit exemption that it had analysed, each ruling contained references to substantial investments, centralisation of activities or the creation of employment in Belgium. Accordingly, it found that the ‘new situation’ requirement that was a prerequisite for requests for advance rulings by which requesting parties sought to benefit from the excess profit exemption resulted in multinational groups that amended their business model by establishing new operations in Belgium being treated differently from any other economic operators, including multinational groups, that continued to operate under their existing business models in Belgium.

113    In that regard, it should be recalled that, in paragraphs 142 to 144 of the judgment on appeal, the Court of Justice confirmed that the choice of a sample consisting of 22 advance rulings, issued in 2005, 2007, 2010 and 2013, was appropriate and sufficiently representative.

114    It should also be noted that Article 20 of the Law of 24 December 2002 defines an ‘advance ruling’ as the legal act by which the Federal Public Service for Finance determines, in accordance with the applicable provisions, how the law will apply to a particular situation or transaction that has not yet had tax consequences. Moreover, Article 22 of that law makes clear that an advance ruling cannot be issued, in particular, when the request concerns situations or transactions identical to those having already had tax consequences as regards the requesting party.

115    Admittedly, it cannot be inferred from the provisions referred to in paragraph 114 above that the making of investments, creation of employment or centralisation of activities in Belgium is explicitly required as a condition for obtaining an advance ruling.

116    However, it is apparent from the sample of advance rulings analysed by the Commission in the contested decision that those rulings were in fact granted following requesting parties’ proposals to invest, to relocate certain operations or to create a certain number of jobs in Belgium. Indeed, the three examples described in footnote 80 to the contested decision, in which the parties requesting the advance rulings in question described their plans for investment and for recentralisation of activities in Belgium, show that, in practice, the condition for the issue of an advance ruling, that there should be a situation that had not had tax consequences, was satisfied by investments, by the centralisation of activities or by the creation of employment in Belgium.

117    In that regard, it should be borne in mind that, in the present cases, it is precisely the administrative practice of the Belgian tax authorities – consisting in exempting profits by advance rulings – that has been considered to derogate from what is provided for in Article 185(2)(b) of the CIR 92. As a result of those advance rulings, their beneficiaries obtained an advantage consisting in a reduction in their tax base, because of the exemption of ‘excess’ profit. By contrast, entities that did not amend their business model in order to create new tax situations – which, in the light of that practice, consisted systematically in investments, centralisation of activities or creation of employment in Belgium – and therefore did not request an advance ruling were taxed on all of their taxable profits. Consequently, the scheme at issue resulted in companies that were in a comparable factual and legal situation being treated differently, in the light of the objective of the ordinary Belgian corporate income tax system.

118    In those circumstances, the Commission cannot be criticised for having stated, in recital 139 of the contested decision, that the system at issue was selective because it was not open to companies that had decided not to make investments, centralise activities or create employment in Belgium.

(iii) Different treatment in comparison with undertakings that are part of a small group

119    In this instance, the Commission stated, in recital 140 of the contested decision, that the scheme at issue was selective since only Belgian entities forming part of a large or medium-sized multinational group could effectively benefit from the excess profit exemption.

120    Indeed, in recital 140 of the contested decision, the Commission indicated that only entities belonging to a sufficiently large multinational group had an incentive to obtain an advance ruling, given that it was only within large corporate groups that synergies, economies of scale and other benefits were likely to generate a significant profit that would justify the request for an advance ruling. The Commission also noted that the process for obtaining such a ruling required a detailed request presenting the new situation that justified the exemption together with excess profit studies, which was more cumbersome for small corporate groups than for large corporate groups.

121    In that regard, it is not disputed that, within the sample of 22 advance rulings under the scheme at issue that was reviewed by the Commission, as described in recital 65 of the contested decision, and which was considered appropriate and representative in paragraphs 142 to 144 of the judgment on appeal, none of those rulings concerned entities belonging to small groups of undertakings.

122    Furthermore, as indicated in recital 66 of the contested decision, it is undisputed that, during the administrative procedure, following that finding by the Commission on the basis of the sample of 22 advance rulings and in response to a request by the Commission to that effect, the Kingdom of Belgium was unable to substantiate its claim that the exemption had also been granted to undertakings belonging to small corporate groups.

123    Consequently, in the light of the administrative practice referred to by the Commission, it is undertakings forming part of large and medium-sized groups that relied on the excess profit exemption scheme, to the exclusion of undertakings forming part of a small corporate group.

124    In those circumstances, the Commission cannot be criticised for having stated, in recital 140 of the contested decision, that the system at issue was selective because it was not open to undertakings that were part of a small group.

125    In any event, even if the Commission had erred in relying on that ground relating to different treatment in comparison with undertakings forming part of a small group, that would not affect the validity of the other two grounds put forward by the Commission, which have been examined, respectively, in paragraphs 105 to 110 and 111 to 118 above.

(c)    Conclusion on the plea in law alleging an infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the contested decision classifies the scheme at issue as a selective measure, in the context of the Commission’s primary line of reasoning

126    It follows from the above considerations that while, in the context of its primary line of reasoning, the Commission analysed the concepts of ‘advantage’ and ‘selectivity’ jointly, it provided sufficient grounds for its finding that there was an advantage, such an analysis being correct. Moreover, the Commission correctly identified the reference system as being the ordinary system of taxation of corporate profits under the general Belgian corporate income tax system, which has as its objective the taxation of profit of all companies subject to tax in Belgium and of which Article 185(2)(b) of the CIR 92 forms part. Furthermore, the Commission was right to conclude that the excess profit exemption scheme did not require that profit to be included in the profit of another company, and thereby derogated from the reference system and treated beneficiaries differently in relation to other entities in a similar legal and factual situation, in the light of the objective of the system.

127    Accordingly, the present plea in law must be rejected in so far as it challenges the Commission’s conclusion, as part of its primary line of reasoning, that the scheme at issue granted those beneficiaries a selective advantage, for the purposes of Article 107 TFEU.

128    In those circumstances, it is not necessary to examine the merits of the applicants’ arguments, put forward in connection with the second and third pleas in law, against the Commission’s conclusion as to the existence of a selective advantage, as part of its subsidiary line of reasoning with regard to selectivity, set out in Section 6.3.2.2 of the contested decision.

3.      Fourth plea in law, relied on in the alternative, alleging infringement of Article 107 TFEU, breach of the principles of the protection of legitimate expectations and proportionality, a manifest error of assessment, misuse of powers and failure to state reasons, in so far as the Commission ordered the Kingdom of Belgium to recover the aid granted by the scheme at issue

129    The fourth plea, relied on in the alternative, consists of three parts relating, respectively, to breach of the principles of the protection of legitimate expectations and proportionality, the identification of the beneficiaries and the amount of aid to be recovered.

130    The Commission contends that the plea put forward by the applicants should be rejected.

(a)    The first part: breach of the principles of the protection of legitimate expectations and proportionality

131    The applicants claim, in essence, that the Commission acted in breach of the principle of the protection of legitimate expectations in that it was impossible to foresee the Commission’s position, in particular since it applied a sui generis arm’s length principle in the contested decision for the purpose of determining taxable profit, although there was no harmonisation within the European Union in that respect, and even though the Commission had not previously opposed similar schemes applied by other Member States.

132    According to settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him or her precise assurances, caused to entertain justified expectations may rely on that principle (see judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 76 and the case-law cited).

133    In that regard, it must be noted that the applicants merely assert that they could not have anticipated that the advance rulings would constitute State aid. They do not put forward any argument, supported by evidence, to establish that they received precise assurances from the Commission, within the meaning of the case-law cited in paragraph 132 above, that might have caused them to entertain justified expectations that the Commission would not have regarded exemptions granted by advance rulings deviating from the general system of corporate taxation in Belgium, and in particular Article 185(2)(b) of the CIR 92, as unlawful and incompatible State aid.

134    In any event, since the Commission correctly found, as part of its primary line of reasoning, that the scheme at issue had granted its beneficiaries a selective advantage for the purposes of Article 107 TFEU, as is apparent from paragraphs 126 and 127 above, the applicants’ arguments alleging breach of the principle of the protection of legitimate expectations because of the Commission’s findings as part of its subsidiary line of reasoning are ineffective.

135    In the light of the above, the applicants’ arguments in relation to a breach of the principle of the protection of legitimate expectations must be rejected.

136    As regards a breach of the principle of proportionality, it is settled case-law that that principle, which is one of the general principles of EU law, requires that the acts of the institutions should not exceed the limits of what is appropriate and necessary in order to achieve the aim pursued, and that where there is a choice between several appropriate measures recourse must be had to the least onerous (judgment of 9 September 2004, Spain and Finland v Parliament and Council, C‑184/02 and C‑223/02, EU:C:2004:497, paragraph 57; see also, to that effect, judgments of 11 July 2002, Käserei Champignon Hofmeister, C‑210/00, EU:C:2002:440, paragraph 59, and of 7 July 2009, S.P.C.M. and Others, C‑558/07, EU:C:2009:430, paragraph 41).

137    In that regard, it must be recalled that abolishing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful. Accordingly, the recovery of such aid, for the purpose of restoring the previously existing situation, cannot in principle be regarded as disproportionate to the objectives of the provisions of the Treaty relating to State aid (see judgment of 28 July 2011, Diputación Foral de Vizcaya and Others v Commission, C‑471/09 P to C‑473/09 P, not published, EU:C:2011:521, paragraph 100 and the case-law cited).

138    As it is, in this instance, the arguments put forward by the applicants in relation to the fact that recovery was ordered from all beneficiaries of an advance ruling, regardless of their size, resources and degree of sophistication, do not call that principle into question. Indeed, it follows from the case-law cited in paragraph 137 above that since recovery of State aid is the only consequence of its unlawfulness and of its incompatibility with the rules on State aid, it cannot be contingent on the situation of its beneficiaries.

139    In so far as the Commission correctly found in these cases that the scheme at issue had granted its beneficiaries State aid that was incompatible with the internal market and unlawful, the recovery of aid, as ordered by the contested decision, cannot constitute a breach of the principle of proportionality.

140    Accordingly, this part of the plea, relating to breach of the principles of the protection of legitimate expectations and proportionality, must be rejected.

(b)    The second part: misuse of powers, failure to state reasons and a manifest error of assessment because of the identification of the beneficiaries of the aid

141    The applicants take issue, in essence, with the identification of the beneficiaries of the aid in recitals 184 to 186 of the contested decision and the fact that Article 2(2) of the operative part of that decision orders the recovery of that aid from the beneficiaries thus identified.

142    In the present cases, the Commission indicated, in recital 183 of the contested decision, that the Belgian entities that had obtained an advance ruling enabling them to deduct profit considered to be excess profit, for the purpose of determining their taxable profit, were the beneficiaries of the State aid at issue.

143    In addition, in recital 184 of the contested decision, the Commission recalled that, in matters of State aid, separate legal entities could be considered to form one economic unit, which was capable of being considered to be the beneficiary of the aid. It thus found that, in the present cases, the Belgian entities benefiting from the aid at issue had operated as central entrepreneurs for the benefit of other entities within their corporate groups which they often controlled. It also noted that the Belgian entities were, in turn, controlled by the entity managing the corporate group as a whole. The Commission thus inferred from this that the multinational group as a whole could be seen as the beneficiary of the aid measure.

144    Moreover, in recital 185 of the contested decision, the Commission stated that it was the group as a whole, irrespective of the fact that it was organised in different legal entities, that would have taken the decision to centralise certain activities in Belgium and to make the necessary investments in order to benefit from advance rulings.

145    Thus, in recital 186 of the contested decision, it concluded that, in addition to the Belgian entities that had been allowed to benefit from the scheme at issue, the multinational groups to which those entities belonged had to be considered beneficiaries of the aid scheme within the meaning of Article 107(1) TFEU.

146    Under Article 2(1) of the operative part of the contested decision, the Kingdom of Belgium is required to recover the aid referred to in Article 1 from the recipients of that aid. According to Article 2(2) of the operative part of that decision, any sums that remain unrecoverable from the recipients of the aid, following the recovery described in paragraph 1 thereof, are to be recovered from the corporate group to which the recipient belongs.

147    In the first place, as regards the alleged infringement of the obligation to state reasons, it must be stated that the Commission’s findings in recitals 183 to 186 of the contested decision justifying the order for recovery of the aid granted by the scheme at issue from the corporate groups to which the beneficiaries of the advance rulings belonged do meet the requirements of the obligation to state reasons as set out in paragraph 44 above.

148    In the second place, as regards the applicants’ arguments calling into question the merits of the order for recovery from the corporate groups to which the beneficiaries of the advance rulings belonged, the following observations must be made.

149    At the outset, it must be recalled that in a decision which concerns an aid scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see, to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraphs 89 and 91; of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63; and of 13 June 2019, Copebi, C‑505/18, EU:C:2019:500, paragraphs 28 to 33).

150    In addition, according to established case-law, the Commission has a broad discretion when it is called upon to determine, in the context of the application of State aid provisions, whether, for the purposes of the application of those provisions in particular, separate legal entities form an economic unit (see, to that effect, judgments of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 63, and of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 314).

151    Thus, it has been held that the Commission was entitled to consider, for the purpose of assessing the beneficiaries of State aid and the appropriate conclusions to be drawn from a decision ordering recovery of that aid, that there was an economic unit among a number of separate legal entities, in particular where they were linked by a relationship of control (see, to that effect, judgments of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 11, and of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 64).

152    In recitals 184 to 186 of the contested decision, the Commission highlighted the fact that, in the context of the scheme at issue, there were links of control between the Belgian entity and the other entities of the group to which they belonged. Thus, the Commission noted the fact that the Belgian entity performed core functions for other entities of the group, which were often controlled by that entity. Moreover, the Commission pointed out that the decisions within the multinational corporate groups regarding the structures that gave rise to the exemptions in question, namely the centralisation of activities in Belgium or investments made in Belgium, were taken within the group and were necessarily taken by entities which controlled the group. Furthermore, it is apparent from the Kingdom of Belgium’s description of the excess profit scheme, as set out in particular in recital 14 of the contested decision, that the excess profit exempted was supposedly generated by synergies and economies of scale as a result of the Belgian entities’ membership of a multinational corporate group.

153    It follows that, in the contested decision, the Commission highlighted elements that supported its conclusion that there were, in principle, links of control within the multinational corporate groups to which the Belgian entities that had obtained advance rulings belonged. In view of those elements of the scheme at issue, it cannot be concluded that the Commission exceeded the limits of its discretion when it found that those groups constituted an economic unit with those entities, benefiting from State aid under that scheme, within the meaning of Article 107(1) TFEU.

154    As regards the recovery order, it must be recalled that, under Article 16 of Regulation 2015/1589, where the Commission finds that there is State aid that is incompatible with the internal market and unlawful, it is to decide that the Member State concerned is to take all necessary measures to recover the aid from the beneficiary.

155    Accordingly, the Commission did not err in law by ordering, in Article 2(2) of the contested decision, any sums that were unrecoverable from the recipients to be recovered from the corporate groups that had been identified as constituting an economic unit with the Belgian entities that had obtained an advance ruling under the aid scheme at issue.

156    In the light of the above considerations, the second part of the fourth plea in law must be rejected.

(c)    The third part: infringement of Article 107 TFEU and misuse of powers in so far as the contested decision requires an amount to be recovered that may be higher than the advantage received by the beneficiaries

157    The applicants essentially complain that the Commission failed, in ordering the recovery of an amount equal to the tax that would have been imposed on the beneficiaries’ income had an advance ruling not been issued, to take account of any upward adjustments that might have been made by another tax administration in respect of the excess profit.

158    It should be recalled that, under Article 1 of the contested decision, the excess profit exemption provided for by the scheme at issue is declared to constitute aid within the meaning of Article 107(1) TFEU that is incompatible with the internal market and that was unlawfully put into effect. In addition, under Article 2 of that decision, it is ordered that that aid be recovered from its recipients.

159    In recitals 207 to 210 of the contested decision, the Commission provided information about the methodology of establishing the actual amount of the tax advantage enjoyed by the beneficiaries, while noting that the methodology could be further refined in cooperation with the Belgian tax authorities in order to take into account in particular the beneficiaries’ individual situations.

160    Furthermore, in recital 211 of the contested decision, the Commission concluded, in essence, that the recovery ordered was intended to ensure that the tax ultimately due by the beneficiary of the scheme was the tax that would have been due in the absence of the excess profit exemption scheme.

161    With regard to the applicants’ arguments, first, it should be borne in mind that, according to the case-law, in the case of decisions which concern aid schemes, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see, to that effect, judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 63 to 64 and 130). Consequently, the Commission cannot be criticised for not having taken into account, at the stage of the decision ordering recovery of the aid in connection with the scheme at issue, the individual situation of each beneficiary.

162    Secondly, as the Commission correctly maintains, the recovery ordered by the contested decision is specifically based on the fact that the aid was granted under the scheme at issue, which consists in the unilateral exemption of excess profit without the question as to whether or not that profit was included in the profit of other companies taxed in other jurisdictions having been taken into consideration. As is apparent from recital 68 of the contested decision, that decision did not concern advance rulings relating to correlative adjustments made following primary upward adjustments by the tax authorities of other jurisdictions. Consequently, the applicants’ arguments based on the assumption that an upward adjustment would have been made in another jurisdiction are ineffective.

163    Thirdly, and in any event, the decision ordering recovery of the aid granted under the scheme at issue does not affect the rights on which any taxpayer may rely, under the double taxation treaties applicable, inter alia, in order to secure an appropriate adjustment of that taxpayer’s taxable profit, following an upward adjustment by the tax authorities of other jurisdictions.

164    Consequently, it cannot be maintained that, when the Commission ordered the recovery of aid corresponding to the amount of the tax which the beneficiaries would have been obliged to pay in the absence of the excess profit exemption scheme, the Commission was referring to an amount other than the advantage received by the beneficiaries of that aid.

165    In those circumstances, the third part of the fourth plea in law must be rejected, as must that plea in its entirety.

166    Since none of the pleas put forward by the applicants is well founded, the actions must be rejected in their entirety, without it being necessary to rule on the request referred to in paragraph 21 above, since the annex to which that request relates is of no relevance for the purposes of the present judgment.

IV.    Costs

167    In accordance with Article 219 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, the General Court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that, in the judgment on appeal, the Court of Justice reserved the costs, it is for the General Court to decide also on the costs relating to the appeal proceedings.

168    Moreover, under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Puratos, Delta Light and Ontex, in Case T‑265/15; Siemens Industry Software, in Case T‑311/16; BASF Antwerpen, in Case T‑319/16; Ansell Healthcare Europe, in Case T‑321/16; Trane, in Case T‑343/16; Kinepolis Group, in Case T‑350/16; Vasco Group and Astra Sweets, in Case T‑444/16; Mayekawa Europe, in Case T‑800/16; and Celio International, in Case T‑832/16, have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission in those cases, in accordance with the form of order sought by the Commission.

169    As regards more specifically Magnetrol International, in Case T‑263/16 RENV, it must be ordered to pay the costs incurred by the Commission in the original proceedings before the General Court in Case T‑263/16 and in the present proceedings following referral in Case T‑263/16 RENV, in accordance with the form of order sought by the Commission. So far as the costs relating to the appeal proceedings are concerned, in view of the fact that those proceedings concerned the original judgment in Joined Cases T‑131/16 and T‑263/16, Magnetrol International must be ordered to pay one half of the costs incurred by the Commission in the appeal proceedings in Case C‑337/19 P.

170    Under Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In this instance, it is appropriate to order the interveners in Case T‑263/16 RENV to bear their own costs in that case, as well as in Case C‑337/19 P.

On those grounds,

THE GENERAL COURT (Second Chamber, Extended Composition),

hereby:

1.      Orders that Cases T‑263/16 RENV, T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16 be joined for the purposes of the present judgment;

2.      Dismisses the actions;

3.      Orders Magnetrol International to bear its own costs and to pay those incurred by the European Commission in the original proceedings before the General Court in Case T‑263/16 and in the proceedings following referral in Case T‑263/16 RENV, as well as one half of the costs incurred by the Commission in the appeal proceedings in Case C‑337/19 P;

4.      Orders Soudal NV, Esko-Graphics BVBA, Flir Systems Trading Belgium, Celio International SA, Anheuser-Busch Inbev, Ampar, Atlas Copco Airpower, Atlas Copco AB and ZF CV Systems Europe to bear their own costs relating to their intervention in Case T‑263/16 RENV and in Case C‑337/19 P;

5.      Orders Puratos, Delta Light and Ontex to bear their own costs and to pay those incurred by the Commission in Case T‑265/16;

6.      Orders Siemens Industry Software to bear its own costs and to pay those incurred by the Commission in Case T‑311/16;

7.      Orders BASF Antwerpen NV to bear its own costs and to pay those incurred by the Commission in Case T‑319/16;

8.      Orders Ansell Healthcare Europe NV to bear its own costs and to pay those incurred by the Commission in Case T‑321/16;

9.      Orders Trane to bear its own costs and to pay those incurred by the Commission in Case T‑343/16;

10.    Orders Kinepolis Group to bear its own costs and to pay those incurred by the Commission in Case T‑350/16;

11.    Orders Vasco Group and Astra Sweets to bear their own costs and to pay those incurred by the Commission in Case T‑444/16;

12.    Orders Mayekawa Europe NV/SA to bear its own costs and to pay those incurred by the Commission in Case T‑800/16;

13.    Orders Celio International to bear its own costs and to pay those incurred by the Commission in Case T‑832/16.

Marcoulli Frimodt Nielsen Tomljenović

Norkus Valasidis

Delivered in open court in Luxembourg on 20 September 2023.

V. Di Bucci M. van der Woude

Registrar President

Table of contents

I. Background to the dispute

A. The original judgment

B. The judgment on appeal

II. Procedure and forms of order sought

III. Law

A. The situation of Celio International

B. Substance

1. First plea in law, put forward in Cases T265/16, T311/16, T319/16, T321/16, T343/16, T350/16, T444/16, T800/16 and T832/16, alleging a manifest error of assessment, misuse of powers and failure to state reasons in so far as the contested decision found that there was an aid scheme

2. Second plea in law, inasmuch as it alleges an infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the contested decision classifies the scheme at issue as a selective measure, as part of the Commission’s primary line of reasoning

(a) The joint analysis of the concepts of ‘advantage’ and of ‘selectivity’

(b) The existence of a selective advantage granted by the scheme at issue

(1) The reference system

(2) Whether there is a derogation from the reference system as a result of the Belgian tax authorities’ application of Article 185(2)(b) of the CIR 92

(3) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation

(i) Different treatment of beneficiaries forming part of a multinational group of undertakings

(ii) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium

(iii) Different treatment in comparison with undertakings that are part of a small group

(c) Conclusion on the plea in law alleging an infringement of Article 107 TFEU and of the obligation to state reasons and a manifest error of assessment in so far as the contested decision classifies the scheme at issue as a selective measure, in the context of the Commission’s primary line of reasoning

3. Fourth plea in law, relied on in the alternative, alleging infringement of Article 107 TFEU, breach of the principles of the protection of legitimate expectations and proportionality, a manifest error of assessment, misuse of powers and failure to state reasons, in so far as the Commission ordered the Kingdom of Belgium to recover the aid granted by the scheme at issue

(a) The first part: breach of the principles of the protection of legitimate expectations and proportionality

(b) The second part: misuse of powers, failure to state reasons and a manifest error of assessment because of the identification of the beneficiaries of the aid

(c) The third part: infringement of Article 107 TFEU and misuse of powers in so far as the contested decision requires an amount to be recovered that may be higher than the advantage received by the beneficiaries

IV. Costs

*      Language of the case: English.