JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

27 September 2023 (*)

(State aid – Aid scheme implemented by Spain – Deduction of corporation tax allowing companies which are tax resident in Spain to amortise goodwill resulting from the indirect acquisition of shareholdings in non-resident companies through the direct acquisition of shareholdings in non-resident holding companies – Decision declaring the aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid paid out – Decision 2011/5/EC – Decision 2011/282/EU – Scope – Withdrawal of an act – Legal certainty – Legitimate expectations)

In Cases T‑12/15, T‑158/15 and T‑258/15,

Banco Santander, SA, established in Santander (Spain),

Santusa Holding, SL, established in Boadilla del Monte (Spain),

represented by E. Abad Valdenebro, R. Calvo Salinero, A. Lamadrid de Pablo and V. Romero Algarra, lawyers,

applicants in Case T‑12/15,

Abertis Infraestructuras, SA, established in Barcelona (Spain),

Abertis Telecom Satélites, SA, established in Madrid (Spain),

represented by A. Lamadrid de Pablo, M. Santa María Fernández, E. Abad Valdenebro, R. Calvo Salinero, M. Cenzual Aldaz and V. Romero Algarra, lawyers,

applicants in Case T‑158/15,

Axa Mediterranean Holding, SA, established in Palma de Mallorca (Spain), represented by A. Lamadrid de Pablo, E. Abad Valdenebro, R. Calvo Salinero, V. Romero Algarra and I. Otaegi Amundarain, lawyers,

applicant in Case T‑258/15,

v

European Commission, represented by P. Němečková, B. Stromsky and C. Urraca Caviedes, acting as Agents,

defendant,

THE GENERAL COURT (Eighth Chamber),

composed, at the time of the deliberations, of J. Svenningsen, President, C. Mac Eochaidh (Rapporteur) and T. Pynnä, Judges,

Registrar: P. Núñez Ruiz, Administrator,

having regard to the written part of the procedure,

having regard to the orders of 9 March 2015, Banco Santander and Santusa v Commission (T‑12/15, not published), and of 10 June 2015, Abertis Infraestructuras and Abertis Telecom Satélites v Commission (T‑158/15, not published), and of the decision of 17 July 2015 to stay the proceedings until the decision of the Court of Justice which closes the proceedings in Case C‑20/15 P, Commission v Autogrill España, or in Case C‑21/15 P, Commission v Banco Santander and Santusa,

having regard to the judgment of 21 December 2016, Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981), setting aside the judgments of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938), and of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939),

having regard to the decisions of 18 March 2019 to stay the proceedings until the final decision which closes the proceedings in Cases C‑51/19 P, World Duty Free Group v Commission, C‑53/19 P, Banco Santander and Santusa v Commission, C‑64/19 P, Spain v Commission and C‑65/19 P, Spain v Commission, or in Case C‑274/14, Banco de Santander,

having regard to the judgments of 6 October 2021, Sigma Alimentos Exterior v Commission (C‑50/19 P, EU:C:2021:792); 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); of 6 October 2021, Banco Santander v Commission (C‑52/19 P, EU:C:2021:794); of 6 October 2021, Banco Santander and Others v Commission (C‑53/19 P and C‑65/19 P, EU:C:2021:795); of 6 October 2021, Axa Mediterranean v Commission (C‑54/19 P, EU:C:2021:796); and of 6 October 2021, Prosegur Compañía de Seguridad v Commission (C‑55/19 P, EU:C:2021:797),

further to the hearing on 15 and 16 November 2022,

gives the following

Judgment

1        By their actions based on Article 263 TFEU, the applicants, Banco Santander, SA, Santusa Holding, SL, Abertis Infraestructuras, SA, Abertis Telecom Satélites, SA and Axa Mediterranean Holding, SA, seek the annulment of Commission Decision (EU) 2015/314 of 15 October 2014 on the State aid SA.35550 (13/C) (ex 13/NN) (ex 12/CP) implemented by Spain – Scheme for the tax amortisation of financial goodwill for foreign shareholding acquisitions (OJ 2015 L 56, p. 38; ‘the contested decision’).

 Background to the dispute

 Spanish law

2        Article 12(5) of Ley 43/1995 del Impuesto sobre Sociedades (Law 43/1995 on corporate tax) of 27 December 1995 (BOE No 310 of 28 December 1995, p. 37072), introduced by Ley 24/2001 de Medidas Fiscales, Administrativas y del Orden Social (Law 24/2001 on administrative, fiscal and social order measures) of 27 December 2001 (BOE No 313 of 31 December 2001, p. 50493), and reproduced in Real Decreto Legislativo 4/2004, por el que se aprueba el texto refundido de la Ley del Impuesto sobre Sociedades (Royal Legislative Decree 4/2004 on the consolidated version of the Law on corporate tax) of 5 March 2004 (BOE No 61 of 11 March 2004, p. 10951; ‘the TRLIS’), entered into force on 1 January 2002.

3        According to recital 17 of the contested decision, Article 12(5) of the TRLIS provides as follows:

‘Financial goodwill is defined … as the part of the difference between the purchase price of the shareholding and its book value on the date of the acquisition that has not been booked under the goods and rights of the non-resident company. That part of the difference would be deductible from the tax base, up to the annual maximum of one twentieth of its value. This is without prejudice [to] the applicable accounting rules.’

4        Recital 18 of the contested decision states the following:

‘Article 21 [of the] TRLIS lays down the requirements that the income of the non-resident company should meet so the resident company can apply the deduction of Article 12(5) [of the] TRLIS:

(a)      The percentage of shareholding – direct or indirect – in the equity of the non-resident company must be at least 5%. In addition, the shareholding must be owned by the resident company for at least one uninterrupted year;

(b)      The non-resident company has to be subject to a foreign tax similar to corporate tax. This condition is presumed to be met if the country of residence of the target company has signed a tax convention with Spain to avoid international double taxation, which contains a clause on exchange of information;

(c)      The profits should stem from business activities carried out abroad. Such a condition is met when at least 85% of the income meets the following criteria:

(i)      The revenues of the non-resident company are obtained abroad and cannot be included in the tax base due to the application of international fiscal transparency rules. In particular, the revenues are considered to meet this requirement if they derive from the following activities:

–        Wholesale trade when the goods are made available to the purchasers in the country or territory of residence of the non-resident company or in any country or territory other than Spain, as long as the operations are carried out by the non-resident company;

–        Services provided in the territory where the non-resident company has its tax domicile, as long as the operations are carried out by the non-resident company;

–        Financial services provided to clients that do not have their tax domicile in Spain, as long as the operations are carried out by the non-resident company;

–        Insurance services relating to risks located in a territory or country other than Spain, as long as the insurance services are carried out by the non-resident company.

(ii)      Dividends or shares on profits in non-resident companies deriving from indirect shareholdings that meet the requirements contained in Article 21(1)(a) [of the] TRLIS. In addition, capital gains resulting from the transmission of shareholdings in non-resident companies as long as they comply with the requirements of Article 21(2) [of the] TRLIS.’

5        According to recital 25 of the contested decision, a direct acquisition is the purchase by a company of shareholdings in the equity of a company (‘direct acquisition of shareholdings’ or ‘direct acquisition’). Conversely, an indirect acquisition is the purchase by a company of shareholdings in the equity of a company at second or ulterior levels as a consequence of a previous direct acquisition. Therefore, the acquiring company indirectly acquires shareholdings in the companies situated at second or ulterior levels (‘indirect acquisition of shareholdings’ or ‘indirect acquisition’).

6        According to recital 40 of the contested decision, Article 15 of Real Decreto 1777/2004 por el que se aprueba el Reglamento del Impuesto sobre Sociedades (Royal Decree 1777/2004 approving the Regulation on corporation tax) of 30 July 2004 (BOE No 189 of 6 August 2004, p. 28377), provides that taxpayers wishing to benefit from the tax deduction provided for in Article 12(5) of the TRLIS are required to submit various details ‘on the … directly acquired company’ with their corporate tax return.

7        It is also apparent from the contested decision that the Spanish system for collecting corporate tax is based on a self-assessment procedure, provided for in Article 137 of the TRLIS.

8        That self-assessment procedure is set out in Article 120 of Ley 58/2003 General Tributaria (Law 58/2003 establishing the General Tax Code) of 17 December 2003 (BOE No 302 of 18 December 2003, p. 44987; ‘the LGT’) as follows:

‘(1)      A self-assessment is a declaration by which a taxpayer provides the administrative authorities with the information necessary to assess the tax, along with other information, and then carries out the qualification and quantification operations necessary to determine and pay the amount of tax due or, where applicable, to determine the amount to be repaid or set off.

(2)      The authorities may carry out checks and inspections on self-assessments submitted by taxable persons and, where appropriate, make any necessary adjustments …’

 Replies to questions from Members of Parliament

9        In a number of written questions put in 2005 and 2006 (with the references E-4431/05, E-4772/05, E-5800/06 and P-5509/06), various Members of the European Parliament asked the European Commission whether the scheme set up by Article 12(5) of the TRLIS was compatible with the rules on State aid.

10      In its replies of 19 January and 17 February 2006 to questions E-4431/05 and E-4772/05 respectively, the Commission stated that the scheme set up by Article 12(5) of the TRLIS did not fall within the scope of State aid rules.

 Decisions 2011/5 and 2011/282

11      By letter of 26 March 2007, the Commission asked the Spanish authorities to provide it with information so that it could assess the scope and the effects of the scheme set up by Article 12(5) of the TRLIS. The Commission asked Spain, in particular, to clarify which types of transactions were covered by that provision. According to the preliminary analysis carried out by the Commission services, the fact that shares acquired in a holding company could not be deducted unduly limited the number of potential beneficiaries of the scheme set up by Article 12(5) of the TRLIS.

12      By letter of 4 June 2007, the Spanish authorities replied to the Commission, stating that, according to the administrative test then applicable, only the financial goodwill arising from direct acquisitions was deductible under the scheme set up by Article 12(5) of the TRLIS (‘the initial administrative interpretation’).

13      By decision of 10 October 2007, a summary of which was published on 21 December 2007 (OJ 2007 C 311, p. 21), the Commission initiated a formal investigation procedure in respect of the scheme set up by Article 12(5) of the TRLIS (‘the first formal investigation procedure’).

14      On 28 October 2009, the Commission adopted Decision 2011/5/EC on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48; ‘the first decision’). By that decision, the Commission declared that the scheme set up by Article 12(5) of the TRLIS was incompatible with the internal market where it applied to the acquisition of shareholdings in companies established within the European Union (Article 1(1) of that decision) and ordered the Kingdom of Spain to recover the aid corresponding to the tax reductions granted on the basis of that scheme (Article 4 of that decision).

15      On 12 January 2011, the Commission adopted Decision 2011/282/EU on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1; ‘the second decision’), following the same formal procedure as that which gave rise to the first decision. By that decision, which concerned the acquisition of shareholdings in foreign companies no longer established in the European Union but established outside it, and which was the subject of corrigenda on 3 March and 26 November 2011, the Commission declared, inter alia, that the scheme set up by Article 12(5) of the TRLIS, was incompatible with the internal market where it applied to acquisitions of shareholdings in undertakings established outside the European Union (Article 1(1) of that decision), and ordered the Kingdom of Spain to recover the aid granted (Article 4 of that decision).

16      However, having recognised, in the first and second decisions (together, ‘the initial decisions’), a legitimate expectation on the part of certain undertakings benefiting from the scheme set up by Article 12(5) of the TRLIS, the Commission accepted that the scheme could continue to apply for the entire amortisation period provided for therein, (i) to acquisitions of shareholdings which took place before the publication in the Official Journal of the European Union of the decision to initiate the formal investigation procedure on 21 December 2007; (ii) to acquisitions of shareholdings which, subject to the approval of any regulatory authority to which the transaction had been notified before that date, took place irrevocably before 21 December 2007; (iii) to acquisitions of majority shareholdings in foreign companies incorporated in China, India or other third countries which took place before the publication of the second decision in the Official Journal of the European Union on 21 May 2011, where the existence of explicit legal obstacles to cross-border business combinations has been or can be demonstrated; and (iv) to acquisitions of shareholdings in foreign companies incorporated in China, India or other third countries where the existence of explicit legal obstacles to cross-border business combinations has been or can be demonstrated and where the acquisition took place irrevocably before 21 May 2011, subject to the approval of a regulatory authority to which the transaction has been notified before that date (Article 1(2) and (3) of the first decision and Article 1(2) to (5) of the second decision). Thus, the aid paid pursuant to Article 12(5) of the TRLIS, which fulfilled one of the abovementioned conditions, was not subject to the recovery obligation (Article 4(1) of the first decision and Article 4(1) of the second decision).

 The new administrative interpretation

17      By email of 12 April 2012, the Spanish authorities informed the Commission that, on 21 March 2012, the Dirección General de Tributos (Directorate-General for Taxation, Spain; ‘the DGT’) had adopted the binding opinion V0608-12, which was also applicable to transactions carried out before that date (‘the new administrative interpretation’).

18      In recital 40 of the contested decision, the Commission summarised the main reasons which, in its view, led the DGT and, subsequently, the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) to amend the scope of Article 12(5) of the TRLIS to include indirect shareholdings. Those grounds are as follows:

‘(a)      First, the DGT and [the Tribunal Económico-Administrativo Central (Central Tax Tribunal)] refer to Article 21(1)(c) [of the] TRLIS in order to argue that indirect acquisitions can also benefit from the deduction of Article 12(5) [of the] TRLIS. According to the DGT and the [Tribunal Económico-Administrativo Central (Central Tax Tribunal)], the requirement of carrying out an economic activity can be met when the operating company is also in second or ulterior levels. In particular, the DGT and the [Tribunal Económico-Administrativo Central (Central Tax Tribunal)] refer to [the second subparagraph of] Article 21(1)(c) [of the] TRLIS where it is explicitly stated that dividends deriving from direct or indirect shareholdings will also be covered by the provision. The DGT and the [Tribunal Económico-Administrativo Central (Central Tax Tribunal)] conclude that the fact that the operating company is situated at a second or ulterior level should not be an obstacle for the application of the deduction of Article 12(5) [of the] TRLIS.

(b)      Second, the DGT and the [Tribunal Económico-Administrativo Central (Central Tax Tribunal)] refer to the rationale of the provision: given that Article 12(5) [of the] TRLIS aims at fostering the internationalisation and foreign investment of Spanish companies, it would go against the spirit of the provision to exclude from the application of Article 12(5) [of the] TRLIS investments made by Spanish companies in non-resident holdings. Moreover, the DGT and [Tribunal Económico-Administrativo Central (Central Tax Tribunal)] claim that the economic reality shows that the acquisition of shareholdings in non-resident companies is often carried out through the acquisition of a holding company. The fact that an investment is carried out via the acquisition of shares of a holding is an exogenous circumstance that does not depend on the company that acquires the holding, but on how the market is structured. The presence of intermediate companies like holdings should not be an obstacle for carrying out investments nor should it discriminate between different types of acquisitions.

(c)      Third, the DGT and the [Tribunal Económico-Administrativo Central (Central Tax Tribunal)] argue that constant references were made both to direct and indirect acquisitions in the wording of the [initial decisions]. The DGT and [the Tribunal Económico-Administrativo Central (Central Tax Tribunal)] infer from the wording of the two decisions that the … Commission accepts the deduction of the financial goodwill both for direct and indirect acquisitions of shareholdings.

(d)      Fourth, the DGT also acknowledges that this interpretation is done in spite of the obligation to provide information contained in Article 15 of [Royal Decree 1777/2004 approving the Regulation on corporation tax]. Article 15 of the Regulation exclusively requires providing information on the acquisition of the directly acquired company in order to be able to apply Article 12(5) [of the] TRLIS. If this deduction were also applicable to indirect acquisitions, it would have been logical to include indirect acquisitions as well, for the sake of a better transparency. However, this should not be deterrent for a wide interpretation of Article 12(5) [of the] TRLIS.

(e)      Finally, in order to apply the deduction to indirect acquisitions it is necessary to turn the indirect shareholding into a direct shareholding via a previous merger operation. It would be against the principle of fiscal neutrality to treat differently from a fiscal point of view an acquisition that leads to a business combination and an acquisition of shareholdings that does not result [in] a business combination. The DGT and [the Tribunal Económico-Administrativo Central (Central Tax Tribunal)] conclude that the deduction should also be possible [at] different shareholding levels. For that matter, it is necessary to prove by means of a consolidated balance sheet or any other legal means that a part of the purchase price of the shareholding corresponds to the financial goodwill existing in an “indirectly” acquired shareholding of an operating company.’

 The procedure which led to the adoption of the contested decision

19      Between 4 July 2012 and 1 July 2013, the Commission sent the Kingdom of Spain various questions and requests for information concerning the new administrative interpretation. On 17 July 2013, the Commission informed the Kingdom of Spain of its decision to initiate the formal investigation procedure provided for in Article 108(2) TFEU, having regard to the effects that would result from that new administrative interpretation (‘the second formal investigation procedure’). That decision was published in the Official Journal of the European Union on 7 September 2013 (OJ 2013 C 258, p. 8). The Commission invited the Kingdom of Spain and interested third parties to comment.

20      Following the second formal investigation procedure, the Commission adopted the contested decision.

21      In recital 94 of the contested decision, the Commission stated that that decision dealt exclusively with the effects of the new administrative interpretation, which had been introduced by the Spanish authorities after the initial decisions were adopted.

22      According to the Commission, the aim of the initial decisions was to assess the compatibility with the internal market of the scheme set up by Article 12(5) of the TRLIS, as it was presented by the Spanish authorities during the administrative procedure that led to the adoption of those decisions. In the letter of 4 June 2007, referred to in paragraph 12 above, the Kingdom of Spain explained to the Commission that the initial administrative practice for direct acquisitions of shareholdings in operating companies allowed only the deduction of the financial goodwill. Lastly, the Commission also submits that the DGT and the Tribunal Económico-Administrativo Central (Central Tax Tribunal) systematically and consistently applied Article 12(5) of the TRLIS only to direct acquisitions of shareholdings in operating companies from 1 January 2002, the date of entry into force of Article 12(5) of the TRLIS, until the adoption of the new administrative interpretation in March 2012 (recitals 95 to 98 of the contested decision).

23      The Commission also noted that the new administrative interpretation introduced by the Spanish authorities in March 2012 had enlarged the scope of application of Article 12(5) of the TRLIS since the measure would now have been applicable not only to financial goodwill arising from direct acquisitions of shareholdings in non-resident companies, but also to the financial goodwill arising from indirect acquisitions of shareholdings in non-resident companies through the shareholding acquisition of a holding company (recital 99 of the contested decision).

24      The Commission inferred from those factors that the new administrative interpretation was not covered by the initial decisions. Moreover, that new administrative interpretation could not, according to the Commission, be classified as ‘existing aid’ within the meaning of Article 1(b) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), since it had already been concluded, in the initial decisions, that the scheme set up by Article 12(5) of the TRLIS, as applied by the Spanish authorities, constituted an unlawful aid scheme that was incompatible with the internal market. According to the Commission, the new administrative interpretation thus constituted ‘new aid’ within the meaning of Article 1(c) of that regulation (recitals 99 to 101 of the contested decision).

25      The Kingdom of Spain and the interested third parties nevertheless requested that the legitimate expectation recognised in the initial decisions be applied in the same way to indirect acquisitions. In their view, the existence of a legitimate expectation should have been recognised on account of the references made to indirect acquisitions in the Commission’s replies to the parliamentary questions referred to in paragraphs 9 and 10 above, in the press release of 10 October 2007 announcing the initiation of the first formal investigation procedure (IP/07/1469) and in the initial decisions (recital 189 of the contested decision).

26      However, contrary to what it had decided in the initial decisions (see paragraph 16 above), the Commission refused in the contested decision to rule out recovery of the aid granted under the scheme set up by Article 12(5) of the TRLIS, relating to indirect acquisitions, which satisfied the same conditions as those referred to in paragraph 16 above, in accordance with the principle of the protection of legitimate expectations (recitals 189 to 200 of the contested decision).

27      The Commission therefore concluded that the new administrative interpretation, which, in its view, had extended the scope of Article 12(5) of the TRLIS in order to cover indirect acquisitions of shareholdings in non-resident companies through direct acquisitions of shareholdings in non-resident holding companies, and which had been unlawfully put into effect by the Kingdom of Spain in breach of Article 108(3) TFEU, was incompatible with the internal market (Article 1 of the contested decision). Consequently, the Commission ordered the Kingdom of Spain to put an end to that aid scheme and to recover the aid granted under it (Articles 4 to 7 of the contested decision), with the exception of individual aid granted under the scheme which fulfils the criteria for a de minimis or group exemption (Articles 2 and 3 of the contested decision).

 Forms of order sought

28      The applicants claim, in the final form of their pleadings, that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

29      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

30      After hearing the parties, the Court has decided to join Cases T‑12/15, T‑158/15 and T‑258/15 for the purposes of the present judgment, in accordance with Article 68(1) of the Rules of Procedure of the General Court.

 Admissibility of the actions

31      In its written pleadings, the Commission disputed the admissibility of the present actions. However, at the hearing, the Commission acknowledged that the applicants had benefited from the scheme set up by Article 12(5) of the TRLIS in respect of the indirect shareholdings which they had acquired. Accordingly, their actions were admissible.

32      In that regard, the Court notes, on the basis of the information submitted to it, that the applicants are the actual beneficiaries of individual aid granted under the scheme set up by Article 12(5) of the TRLIS, which took the form of deductions made in respect of indirect acquisitions, and are liable to reimbursement of those reductions, pursuant to the order for recovery of the aid paid under that scheme addressed by the Commission to the Kingdom of Spain, in Article 4(2) to (5) of the contested decision.

33      The actions are therefore admissible.

 Substance

34      In the applications, the applicants initially put forward four pleas in law. The first plea alleged infringement of Article 107(1) TFEU on account of an error of law as regards the condition of selectivity. The second plea alleged an error of law in determining the beneficiaries of the scheme at issue. The third plea alleged that there was no ‘new aid’ for the purposes of Article 108(3) TFEU and within the meaning of Article 1(c) of Regulation No 659/1999, as applicable at the time of the adoption of the contested decision. The fourth plea alleged infringement of the principles of the protection of legitimate expectations, of estoppel and of legal certainty.

35      In their observations of 15 November 2021, in which they commented on the implications of the judgments of 6 October 2021, Sigma Alimentos Exterior v Commission (C‑50/19 P, EU:C:2021:792); 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); of 6 October 2021, Banco Santander v Commission (C‑52/19 P, EU:C:2021:794); of 6 October 2021, Banco Santander and Others v Commission (C‑53/19 P and C‑65/19 P, EU:C:2021:795); of 6 October 2021, Axa Mediterranean v Commission (C‑54/19 P, EU:C:2021:796); and of 6 October 2021, Prosegur Compañía de Seguridad v Commission (C‑55/19 P, EU:C:2021:797), the applicants withdrew the first and second pleas, since, in their view, the Court of Justice had definitively ruled on the selective nature of the scheme set up by Article 12(5) of the TRLIS and on the lawfulness of the initial decisions in those judgments.

 The third plea in law

36      By their third plea, the applicants submit, in essence, that the Commission incorrectly classified the new administrative interpretation as new aid in the contested decision.

37      In support of that plea, the applicants challenge, as a preliminary point, the applicability in the present case of the case-law arising from the judgments of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), and of 16 December 2010, Kahla Thüringen Porzellan v Commission (C‑537/08 P, EU:C:2010:769), as referred to in recital 96 of the contested decision. That case-law was applicable only if the Kingdom of Spain had notified the scheme at issue to the Commission and the Commission had declared it compatible with the internal market, which is not the case here. Moreover, since the initial decisions made no reference to the content of the letter of 4 June 2007 from the Kingdom of Spain, that letter cannot be taken into account in order to limit the scope of those decisions solely to direct acquisitions.

38      In support of the first part of the third plea, the applicants claim that the Commission incorrectly assessed the scope of the binding opinions by the DGT and decisions by the Tribunal Económico-Administrativo Central (Central Tax Tribunal). The applicants claim that the new administrative interpretation did not alter the scheme set up by Article 12(5) of the TRLIS, since that scheme was applicable from the outset to indirect acquisitions. In that regard, they argue that, under Spanish law, the new administrative interpretation could not have altered the scope of Article 12(5) of the TRLIS, since it did not have the force of law. That scope could have been altered only by the Spanish legislature or by the case-law of the Spanish courts. Article 12(5) of the TRLIS has not been substantially amended since its entry into force, except to take account of the Commission’s initial decisions. Furthermore, neither the initial administrative interpretation nor the new administrative interpretation has any binding legal effect on the taxpayers concerned. Those taxpayers were therefore free to comply with those administrative interpretations or to disregard them. Moreover, several taxpayers applied Article 12(5) of the TRLIS to indirect acquisitions well before the new administrative interpretation was adopted.

39      In support of the second part of the third plea, the applicants claim that the initial decisions already analysed and examined the scheme set up by Article 12(5) of the TRLIS as regards both direct and indirect acquisitions. That conclusion is dictated, in particular, by the fact that those decisions make several express references to indirect acquisitions, but also by several public declarations of the Commission’s position prior to the initial decisions. In those circumstances, the new administrative interpretation cannot be classified as new aid, since it was already included in the material scope of the initial decisions.

40      The Commission submits, as a preliminary point, that the case-law arising from the judgments of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), and of 16 December 2010, Kahla Thüringen Porzellan v Commission (C‑537/08 P, EU:C:2010:769), is applicable in the present case, even though it was not notified of the scheme set up by Article 12(5) of the TRLIS. In view of the information provided by the Spanish authorities in the letter of 4 June 2007, the scope of the operative part of the initial decisions should therefore be limited solely to direct acquisitions.

41      As regards the first part of the third plea, the Commission submits that the new administrative interpretation altered the scheme set up by Article 12(5) of the TRLIS, since, prior to its adoption, only direct acquisitions fell within the scope of that provision. Between 2002 and 2012, the initial administrative interpretation consistently excluded indirect acquisitions from the scope of Article 12(5) of the TRLIS. Furthermore, the Commission disputes the assertion that the administrative interpretations have no binding legal effect on taxpayers, since the Spanish tax authorities are required to apply the same administrative interpretation to all taxpayers in the same situation.

42      As regards the second part of the third plea, the Commission submits that it was right to conclude in the contested decision that the new administrative interpretation had altered the scope of the scheme set up by Article 12(5) of the TRLIS. Finally, the Commission submits that the references to indirect acquisitions in the initial decisions merely reflect the wording of Article 21 of the TRLIS. However, the initial decisions do not cover indirect acquisitions, since they examined the scheme set up by Article 12(5) of the TRLIS as it was presented by the Spanish authorities. The Spanish authorities assured the Commission, in their letter of 4 June 2007, that the scheme set up by Article 12(5) of the TRLIS was applicable solely to direct acquisitions. The Commission maintains that the public declarations of its position are irrelevant, since it was not required to examine the individual situation of the undertakings concerned before adopting the initial decisions.

–       The subject matter of the third plea

43      As is apparent from paragraphs 21 to 24 above, the Commission classified the new administrative interpretation as new aid in the contested decision. By their third plea, the applicants challenge the assertion that the application of the scheme set up by Article 12(5) of the TRLIS to indirect acquisitions may be classified as new aid.

44      In the present case, however, as the Commission stated, in particular in recitals 100 and 149 of the contested decision, the question is not whether the aid scheme at issue may be classified as an existing aid scheme or whether the new administrative interpretation constitutes a ‘substantial change’ of an existing aid scheme, within the meaning of the case-law, in so far as the initial decisions have already concluded that Article 12(5) of the TRLIS, as applied by the Spanish authorities, constituted an aid scheme that was unlawful and incompatible with the internal market. Rather, the question is whether or not the scope of the initial decisions also covers indirect acquisitions resulting from the direct acquisition of shareholdings in a holding company and whether, as a result, the undertakings which applied the scheme set up by Article 12(5) of the TRLIS to such indirect acquisitions may also rely on the legitimate expectation recognised in those decisions.

45      By their argument, the applicants are in fact seeking to show that indirect acquisitions were already covered by the initial decisions and that, accordingly, the Commission was no longer entitled to adopt the contested decision specifically in respect of that type of transaction. That interpretation of the third plea is, moreover, borne out by its heading, which states that ‘the new administrative interpretation does not constitute new aid distinct from that already examined by the Commission in [the initial decisions]’. It is also borne out by the applicants’ arguments that ‘the aid scheme examined in the [contested] decision … is exactly the same as that on which the Commission ruled in [the initial decisions]’, that ‘[in the contested decision], the Commission [reneged on] … what it categorically and repeatedly stated in [the initial decisions]’ or that ‘the Commission therefore could not take another decision on [the] scheme [at issue] as part of a “new” aid procedure’.

46      The third plea will be examined below in the light of those limitations.

–       The scope of the initial decisions

47      The parties disagree as to the scope of the initial decisions. The applicants claim that those decisions related not only to direct acquisitions but also to indirect acquisitions. The Commission, on the other hand, contends that those decisions analysed the scheme set up by Article 12(5) of the TRLIS, as presented by the Spanish authorities during the administrative procedure which led to the adoption of those decisions, and that, as a result, indirect acquisitions were not examined in that context.

48      In that regard, in recitals 95, 96, 145 and 147 of the contested decision, the Commission considered that, according to settled case-law, the scope of the initial decisions had to be determined not only by reference to the actual wording of those decisions, but also by taking into account the aid scheme notified by the Member State concerned (see, to that effect, judgments of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 31; of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 44; and of 20 September 2018, Carrefour Hypermarchés and Others, C‑510/16, EU:C:2018:751, paragraph 38).

49      However, it must be stated at the outset that, in the present case, as the applicants claim, unlike the situation at issue in the judgments referred to in paragraph 48 above, the scheme set up by Article 12(5) of the TRLIS was not notified to the Commission by the Kingdom of Spain and that the finding in the initial decisions was not that the scheme was compatible with the internal market, but that it was incompatible with the internal market.

50      The Court also recalls that, under Article 4(3) TEU, the principle of sincere cooperation between the Member States and the Union applies throughout the procedure for the examination of a State aid measure (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 83 and the case-law cited).

51      The principle of sincere cooperation requires the Member State concerned to provide the Commission with the information enabling it to take a decision on whether the measure at issue constitutes State aid. It also requires the Commission, by virtue of its duty to conduct a diligent and impartial examination, to carefully examine the information provided to it by that Member State (see, to that effect, judgments of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 34 and the case-law cited, and of 6 April 2022, Mead Johnson Nutrition (Asia Pacific) and Others v Commission, T‑508/19, EU:T:2022:217, paragraph 104 and the case-law cited).

52      Furthermore, it should be recalled that the principle of legal certainty – which is one of the general principles of EU law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (see judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and the case-law cited). That principle also applies where the Commission adopts a decision on State aid on the basis of Article 4 or 7 of Regulation No 659/1999 given that the Member State to which a decision requiring recovery of illegal aid is addressed is obliged, under the fourth paragraph of Article 288 TFEU, to take all measures necessary to ensure implementation of that decision (see judgment of 26 June 2003, Commission v Spain, C‑404/00, EU:C:2003:373, paragraph 21 and the case-law cited) and that that decision is binding on all organs of the State to which it is addressed, including its courts (see, to that effect, judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 41).

53      Lastly, it should be noted that, in the specific case of an aid scheme, as in the present case, it is settled case-law that the Commission may merely study the characteristics of the scheme at issue in order to assess, in the grounds for its decision, whether, by reason of the arrangements provided for under the scheme, the latter gives an appreciable advantage to beneficiaries in relation to their competitors and is likely to benefit in particular undertakings engaged in trade between Member States. Thus, in a decision which concerns such a 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 judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 65 and the case-law cited).

54      In the present case, it is apparent, in the first place, from the letter of 26 March 2007 that, according to the Commission’s preliminary analysis, the fact that shares acquired in a holding company could not be deducted unduly limited the number of potential beneficiaries of the scheme set up by Article 12(5) of the TRLIS.

55      In response to the letter of 26 March 2007, the Spanish authorities indicated in their letter of 4 June 2007, that, according to the administrative practice in force at that time, only the financial goodwill arising from direct acquisitions was deductible under the scheme set up by Article 12(5) of the TRLIS. The Spanish authorities stated that ‘the only way to control the investment … [was] through direct participation’, that ‘limiting the effects of Article 12(5) of the TRLIS to the first level [prevented] its scope from being extended to the goodwill [generated in companies situated at second or ulterior levels]’ and that the scheme set up by Article 12(5) of the TRLIS ‘[would have been] difficult to manage if it [had] also [covered] goodwill attributable to foreign companies [situated at second or ulterior levels], in so far as those shareholdings [were] accounted for in the assets of those other foreign companies, which [fell] outside the [DGT’s] power of review’.

56      It is true that the letter of 4 June 2007 is mentioned in recital 4 of the initial decisions. However, the Court observes that those decisions contain no reference to the content of that letter. If, in view of the information in that letter, the Commission had intended to examine the scheme set up by Article 12(5) of the TRLIS only in so far as it applied to direct acquisitions, it should have made that clear in the initial decisions, which it did not do.

57      On the contrary, it is clear that the initial decisions contain numerous explicit references to indirect acquisitions. Indirect acquisitions are explicitly referred to in the detailed description of the scheme set up by Article 12(5) of the TRLIS (recital 21 of the first decision and recital 30 of the second decision), the recognition of a legitimate expectation (recitals 167 and 170 of the first decision and recital 193 of the second decision), the overall conclusion (recital 175 of the first decision and recital 210 of the second decision) and the operative parts of the initial decisions (Article 1(2) of the first decision and Article 1(2) and (4) of the second decision).

58      Furthermore, the fact relied on by the Commission, in particular in recital 143 of the contested decision, that, in referring to indirect acquisitions in the initial decisions, it relied on the wording of Article 21 of the TRLIS, to which Article 12(5) of the TRLIS refers, tends to confirm that it examined that scheme as a whole, ex ante, in accordance with the case-law cited in paragraph 53 above, and that it did not rule out the possibility that that scheme could also apply to indirect acquisitions, irrespective of the administrative practice in force at that time. Moreover, the Commission acknowledged, inter alia in paragraph 21 of the defence, that the relevant provisions of the TRLIS, applicable at the time when the initial decisions were adopted, did not expressly exclude indirect acquisitions.

59      Lastly, the Court notes that the Commission acknowledged, in recital 151 of the contested decision, that the distinction between direct and indirect acquisitions of shareholdings had not been deemed relevant for the purposes of the assessment required in the initial decisions.

60      Accordingly, it is apparent from the wording of the initial decisions that the Commission examined the scheme set up by Article 12(5) of TRLIS as an aid scheme as a whole, covering both direct and indirect acquisitions.

61      In the second place, it should be noted that, contrary to what the Commission found, in particular in recital 99 of the contested decision, it cannot be reasonably inferred from the evidence which it put forward that the new administrative interpretation enlarged the scope of Article 12(5) of the TRLIS.

62      First of all, in view of the matters of Spanish law brought to the attention of and discussed before the Court, such an interpretation is based on a misunderstanding of how the corporate tax assessment system works under Spanish law. As the applicants have explained, Spanish corporate tax operates on the basis of a self-assessment system provided for in Article 137 of the TRLIS, the operating mechanism of which is set out in paragraph 8 above.

63      Thus, in accordance with Article 137 of the TRLIS and Article 120 of the LGT, the self-assessment system implies that the taxpayer calculates his or her own tax burden in application of the corporate tax legislation. It is not necessary for the tax authorities to take any action in order for that tax debt to be recognised as having been discharged. While it is true that in certain cases self-assessment may be subject to inspection by the authorities, this is by no means mandatory and, in the vast majority of cases, tax debts are submitted for self-assessment without being inspected by the authorities.

64      Next, Article 89 of the LGT provides that only the bodies of the tax authorities responsible for applying the tax are bound by the DGT’s administrative interpretation. Thus, while it is true that, as the Commission submits, the Spanish tax authorities are bound by their administrative practice and that they are required, in the event of an inspection of self-assessments submitted by taxpayers, to apply the same criteria to all taxpayers in the same situation, the fact remains that that binding effect does not affect taxpayers.

65      The same applies, under Article 239(8) of the LGT, to the case-law of the Tribunal Económico-Administrativo Central (Central Tax Tribunal), which binds the other bodies of administrative economic channels and the tax authorities, but not taxpayers.

66      Thus, it is apparent from the documents before the Court and from paragraphs 21 to 32 of the judgment of 15 November 2018, Deutsche Telekom v Commission (T‑207/10, EU:T:2018:786), that, in applying that principle, certain undertakings applied the deduction to indirect acquisitions of shareholdings, even before the adoption of the new administrative interpretation.

67      As in any State governed by the rule of law, undertakings are not required to adopt the same interpretation of the law as that advocated by the tax authorities. They may apply the rule in a different manner, by relying directly on the text of the law, and, if necessary, bring an action before the competent courts to challenge the acts of the administrative authorities responsible for amending their self-assessments pursuant to the tax notices in question. As the applicants rightly submit, it is for the legislature or, in the event of doubts or disputes, the courts, and not the administrative authorities, to determine the scope of the statutory provisions. The Commission has not demonstrated that indirect acquisitions were excluded from the scope of Article 12(5) of the TRLIS by the legislature or by the Spanish courts before the new administrative interpretation was adopted.

68      Finally, the Court observes that, after the new administrative interpretation was adopted, it is true that the Audiencia Nacional (National High Court, Spain) held, in its judgment of 6 February 2014, as referred to, inter alia, in recital 41 of the contested decision, that ‘goodwill [could] not generate in an undertaking which has no substantial business operations’ and that ‘the company [involved in that case could] not generate any financial goodwill[,] since it only [owned] shares and [did] not carry out any substantive activities’.

69      However, the Audiencia Nacional (National High Court) also stated, in its judgment of 6 February 2014, that the question before it in that case was different from that which had been examined in the binding opinion V0608-12, which gave rise to the new administrative interpretation.

70      In that regard, the Audiencia Nacional (National High Court) found that the question before it focused on ‘whether it [was] possible to deduct goodwill for companies without business operations and mere holding companies’, whereas, in its view, the question at the heart of the binding opinion V0608-12 was ‘whether, for the purposes of calculating goodwill, it [was] possible to take account of the fact that control [had been] taken directly or indirectly through holding companies’. Following that finding, the Audiencia Nacional (National High Court) merely concluded that ‘these are different questions which call[ed] for different answers’, ruling out the possibility that its judgment of 6 February 2014 could support the position adopted by the Commission in the contested decision.

71      Moreover, it is apparent from the documents before it that, hearing an appeal against the judgment of the Audiencia Nacional (National High Court) of 6 February 2014, the Tribunal Supremo (Supreme Court, Spain) stayed the proceedings pending before it. Accordingly, the scope of the scheme set up by Article 12(5) of the TRLIS still lacks precision and clarity at the date of the present judgment, as the Commission noted in recitals 184 and 195 of the contested decision and at the hearing.

72      Therefore, in finding that the new administrative interpretation had ‘enlarged’ the scope of Article 12(5) of the TRLIS, the Commission failed to take due account of Spanish law, since, under Spanish law, the scope of that provision could not be determined by a mere administrative interpretation.

73      In the light of all the foregoing considerations, it must be held that, contrary to what the Commission concluded in the contested decision, the initial decisions already covered both direct and indirect acquisitions of shareholdings.

74      Accordingly, it is necessary to ascertain whether the Commission was entitled to adopt the contested decision.

–       Whether it is possible for the Commission to adopt the contested decision in view of the scope of the initial decisions

75      In the present case, although it is true that the initial decisions and the contested decision find that the scheme set up by Article 12(5) of the TRLIS is incompatible, the fact remains that Article 4 of the contested decision requires the Kingdom of Spain to recover all the aid granted under that scheme, as applied to indirect acquisitions, whereas some of that aid was not subject to the recovery obligation under the initial decisions because of the legitimate expectation recognised by the Commission in those decisions (see paragraph 16 above).

76      Such a result is tantamount to withdrawing the initial decisions, in so far as they already related to indirect acquisitions and recognised them as legitimate expectations, subject to certain conditions.

77      In that regard, according to Article 9 of Regulation No 659/1999, read in conjunction with Article 13(3) and recital 10 thereof, the ‘revocation’ of a decision is possible where that decision was based on incorrect information provided during the procedure which was a determining factor for the decision.

78      However, there is nothing in the documents before the Court, nor is there anything which the Commission relies on, to show that the contested decision was based on inaccurate information provided during the administrative procedure leading to its adoption. In particular, as stated in paragraph 55 above, the letter of 4 June 2007 correctly described the administrative practice which had taken place, at that specific time, in Spain.

79      The Commission itself considered, in the letter of 26 March 2007, that it would be unreasonable to exclude indirect acquisitions from the scope of Article 12(5) of the TRLIS (see paragraph 54 above). The Commission itself also examined, in the initial decisions, the scheme set up by Article 12(5) of the TRLIS as a whole, ex ante, including the fact that that scheme could apply to indirect acquisitions (see paragraph 58 above).

80      Thus, contrary to the Commission’s assertion in recital 147 of the contested decision, the scope of the initial decisions was not limited by the detailed rules for the application of the scheme set up by Article 12(5) of the TRLIS described by the Spanish authorities in the letter of 4 June 2007.

81      Since indirect acquisitions have already been taken into account in the initial decisions and since it has not been shown that those decisions were based on incorrect information, the Commission cannot ‘revoke’ the initial decisions under Article 13(3) of Regulation No 659/1999 in so far as they related to that type of transaction.

82      It is true, however, that the possibility for the Commission to withdraw a decision on State aid is not limited solely to the situation referred to in Article 9 of Regulation No 659/1999, read in conjunction with Article 13(3) of that regulation. Those provisions are merely a specific expression of the general principle of law according to which retroactive withdrawal of an unlawful administrative act which has created individual rights is permissible, in particular if the administrative act at issue was adopted on the basis of false or incomplete information provided by the party concerned. The right to withdraw retroactively an unlawful administrative act which has created individual rights is not, however, limited to that situation alone, since such a withdrawal may always be carried out provided that the institution which adopted the act at issue complies with the conditions relating to reasonable time limits and the legitimate expectation of the beneficiary of that act who was entitled to rely on its lawfulness (see, to that effect, judgment of 18 September 2015, Deutsche Post v Commission, T‑421/07 RENV, EU:T:2015:654, paragraph 47 and the case-law cited, and Opinion of Advocate General Campos Sánchez-Bordona in Repower v EUIPO, C‑281/18 P, EU:C:2019:426, point 65).

83      However, the Commission has never claimed that the initial decisions were unlawful in that they related to indirect shareholdings, which could, where appropriate, have enabled it, in accordance with the case-law cited in the previous paragraph above, to rely on the general principle of law permitting the withdrawal of an unlawful decision. Moreover, the General Court and, subsequently, the Court of Justice dismissed the actions for annulment challenging the lawfulness of the initial decisions.

84      In reality, and as the Kingdom of Spain and the interested third parties had already, in essence, observed during the administrative stage (recitals 82 and 90 of the contested decision), the case at hand does not by any means concern the withdrawal of an unlawful act, but the withdrawal of two legal decisions, namely the initial decisions in so far as they related to indirect shareholdings.

85      According to settled case-law, the retroactive withdrawal of a lawful administrative act which has conferred individual rights or similar benefits is contrary to the general principles of law (see, to that effect, judgments of 22 March 1961, Snupat v High Authority, 42/59 and 49/59, EU:C:1961:5, p. 78; of 22 September 1983, Verli-Wallace v Commission, 159/82, EU:C:1983:242, paragraph 8 and the case-law cited; and of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 138 and the case-law cited).

86      In that regard, as stated in paragraph 75 above, the Court finds that the initial decisions conferred on the Kingdom of Spain, subject to certain conditions and on the basis of the existence of a legitimate expectation, an individual right to implement the aid scheme at issue, notwithstanding the fact that it had been declared incompatible, and, incidentally, on the undertakings which had benefited from that scheme an individual right not to have to repay certain unlawful aid. The Court also finds that the contested decision subsequently withdrew that right in respect of indirect acquisitions.

87      Thus, in addition to undermining the principle of legal certainty, the contested decision called into question the legitimate expectation which the Spanish authorities and the undertakings concerned had been able to derive from the initial decisions that those decisions would be applicable to indirect acquisitions. In that regard, it is sufficient to recall that the initial decisions referred to both direct and indirect acquisitions (see paragraph 57 above).

88      Accordingly, the third plea must be upheld and the contested decision must be annulled in its entirety, without it being necessary for the Court to consider the other arguments put forward by the applicants in that plea.

89      For the sake of completeness, however, the Court would point out that, although the initial decisions must be interpreted as relating both to direct and indirect acquisitions, particularly in the light of Article 21 of the TRLIS, which expressly mentions indirect acquisitions, the fact remains that it is for the Spanish courts alone to determine, as the case may be, whether, under Spanish law, that type of transaction may or may not benefit from the scheme set up by Article 12(5) of the TRLIS, in particular in the light of the provisions of Article 15 of Royal Decree 1777/2004, by which the Regulation on corporation tax is approved. As the applicants stated in their written pleadings, it is for the Spanish courts, and ultimately the Tribunal Supremo (Supreme Court), or even the Spanish legislature, to define the actual scope of Article 12(5) of the TRLIS.

90      Furthermore, assuming that the Commission was entitled to adopt the contested decision, the Court must, for the sake of completeness, examine the applicants’ fourth plea.

 The fourth plea in law

91      The fourth plea consists of three parts, concerning, respectively, an infringement of the principle of the protection of legitimate expectations, of the principle of estoppel and of the principle of legal certainty, which infringements could lead to the annulment of Article 4(2) to (5) of the contested decision.

92      In the first part of the fourth plea, the applicants claim, in essence, that they should be exempted from the obligation to reimburse the tax deductions applied under Article 12(5) of the TRLIS in respect of their indirect acquisitions and rely on the same legitimate expectation as that which had been recognised in the initial decisions. The Commission gave, in particular by means of public statements prior to the initial decisions, precise, unconditional and consistent assurances that Article 12(5) of the TRLIS did not constitute State aid, without drawing a distinction between direct and indirect acquisitions. Furthermore, the initial decisions already related to indirect acquisitions and, in so doing, recognised that the applicants had a legitimate expectation.

93      The Commission submits that the references to indirect acquisitions in the initial decisions are explained by the inclusion of the wording of Article 21 of the TRLIS. The Commission also reiterates its claim that the initial administrative interpretation excluded indirect acquisitions from the scope of Article 12(5) of the TRLIS. The applicants were aware of that initial administrative interpretation and were therefore aware that, before 21 March 2012, indirect acquisitions were not covered by Article 12(5) of the TRLIS. The legitimate expectation recognised in the initial decisions cannot therefore be recognised retroactively in respect of transactions which, when those decisions were adopted, did not fall within the scope of the scheme set up by Article 12(5) of the TRLIS. The public positions adopted by the Commission prior to the adoption of the initial decisions cannot serve as a basis for any legitimate expectation, since the Commission was unaware of the structure of the entities concerned and of the transactions they had carried out. In particular, the Commission had not examined whether those transactions should be classified as direct or indirect acquisitions. At any rate, the Commission was not legally required to carry out a detailed analysis of those transactions at that stage of the procedure. In any event, those public statements pre-date the new administrative interpretation and therefore cannot give rise to any legitimate expectation for that reason either.

94      In that regard, according to Article 14 of Regulation No 659/1999, where negative decisions are taken in cases of unlawful aid, the Commission is to decide that the Member State concerned is to take all necessary measures to recover the aid from the beneficiary, except if this would be contrary to a general principle of EU law (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraphs 35 and 36 and the case-law cited).

95      In this respect, it is settled case-law that the principle of the protection of legitimate expectations is a general principle of EU law (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 37 and the case-law cited).

96      However, in view of the mandatory nature of the supervision of State aid by the Commission pursuant to Article 108 TFEU, undertakings to which aid has been granted may not, in principle, rely on a legitimate expectation that that aid is lawful unless it has been granted in compliance with the procedure provided for in that article, and furthermore, an economic operator exercising due care should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot, in principle, rely at that time on a legitimate expectation that its grant is lawful. This is true both in cases of individual grants of aid and aid granted under an aid scheme (see, to that effect, judgments of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 120 and the case-law cited, and of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 41 and the case-law cited).

97      It is therefore only in exceptional circumstances that beneficiaries of non-notified aid can rely on the principle of the protection of legitimate expectations (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraphs 40 to 43 and the case-law cited).

98      According to settled case-law, the right to rely on legitimate expectations presupposes that the EU institution in question has given the beneficiaries of the aid precise, unconditional and consistent assurances, in accordance with the applicable rules, such as to give rise to a legitimate expectation on their part (see, to that effect, judgments of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 97 and the case-law cited, and of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 46 and the case-law cited).

99      In the present case, the Court notes at the outset that, even if the beneficiaries could be recognised as having a legitimate expectation, such a legitimate expectation would concern only deductions made under Article 12(5) of the TRLIS for the acquisition of shareholdings in companies established in the territory of a Member State of the European Union or in certain third countries prior to 21 December 2007 or, in the case of certain types of transactions, prior to 21 May 2011 (see paragraph 16 above).

100    In that regard, the Court recalls that, in 2005 and 2006, several Members of the European Parliament asked the Commission about the compatibility of the scheme set up by Article 12(5) of the TRLIS with the State aid rules (written questions E-4431/05, E-4772/05, E-5800/06 and P-5509/06).

101    In its reply of 19 January 2006 to the question E-4431/05, the Commission stated, inter alia, as follows:

‘The Commission cannot confirm whether the high bids by Spanish companies are due to Spain’s tax legislation enabling undertakings to write off goodwill more quickly than their French or Italian counterparts. The Commission can confirm, however, that such national legislations do not fall within the scope of application of State aid rules, because they rather constitute general depreciation rules applicable to all undertakings in Spain.’

102    In its reply of 17 February 2006 to the question E-4772/05, the Commission stated, inter alia, as follows:

‘According to the information currently in its possession, it would however appear to the Commission that the Spanish (tax) rules related to the write off of “goodwill” are applicable to all undertakings in Spain independently from their sizes, sectors, legal forms or if they are privately or publicly owned because they constitute general depreciation rules. Therefore, they do not appear to fall within the scope of application of the State aid rules. The Commission will of course thoroughly investigate any information that may come to its knowledge indicating the contrary.’

103    In its reply of 5 February 2007 to the question P-5509/06, the Commission stated, inter alia, as follows:

‘In this case, the Commission has yet to give its opinion on the compatibility, from a State aid point of view, of the Spanish goodwill write-off provisions; they do not, however, appear to be contrary to the Fourth Accounting Directive. … In any case, the Commission would point out that it is impossible to predict the outcome of any subsequent investigation of the possible aid measures referred to by the Honourable Member. In this regard, the Commission would reiterate that it may, by virtue of its State aid control powers, order the recovery of any incompatible or illegally granted aid so as to deprive the recipient of any advantage it may have enjoyed over its competitors, thereby restoring the pre-aid competitive market situation.’

104    In its reply of 9 March 2007 to the question E-5800/06, the Commission stated, inter alia, as follows:

‘To this date, [the tax advantage at issue] has not been examined by the Commission, nor has Spain notified the scheme [set up by Article 12(5) of the TRLIS] for state aid review. Nevertheless, the Commission has just initiated a preliminary review of [that] scheme to ascertain whether this measure would qualify as state aid, and, if this proves to be the case, its compatibility with the common market.’

105    The Court has already held, in respect of all shareholdings acquired before 21 December 2007, that although the Commission’s replies of 19 January and 17 February 2006, referred to in paragraphs 101 and 102 above, were vague as regards the scheme set up by Article 12(5) of the TRLIS taken as a whole, they were sufficiently precise to give rise to a legitimate expectation that the scheme was not selective and therefore did not constitute State aid (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraphs 50 to 112).

106    In particular, in paragraph 111 of the judgment referred to in the previous paragraph, the Court held, inter alia, that the legitimate expectation, which had been properly created by the Commission’s replies of 19 January and 17 February 2006, could not have been brought to an end with the reply of 5 February 2007, referred to in paragraph 103 above, since it was not apparent from that reply that there were any serious doubts as to the lawfulness of the scheme set up by Article 12(5) of the TRLIS.

107    Nor could the reply of 9 March 2007, referred to in paragraph 104 above, have brought an end to that legitimate expectation, which had been properly created by the Commission’s replies of 19 January and 17 February 2006. In its reply of 9 March 2007, the Commission did not carry out any assessment, even in summary or vague terms, of the scheme set up by Article 12(5) of the TRLIS as a whole, but merely stated that it had just initiated a preliminary review of that scheme. Since it did not involve the initiation of a formal investigation procedure in respect of the scheme at issue and, a fortiori, the outcome of such a procedure, such a reply could not be interpreted as raising serious doubts as to the lawfulness of that scheme (see, to that effect and by analogy, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 111).

108    In that regard, the Commission’s argument, set out in recital 197 of the contested decision, that the replies to the parliamentary questions did not focus on the differentiation between direct and indirect acquisition, cannot call into question the fact that the replies of 19 January and 17 February 2006 duly gave rise to a legitimate expectation on the part of the applicants that none of the shareholdings acquired before 21 December 2007 would be classified as State aid.

109    Those questions related specifically to indirect acquisitions of shareholdings, in particular the acquisition of O2 by Telefónica, SA and Scottish Power by Iberdrola, SA, of which the Commission could not have been unaware, at least as regards the acquisition of Scottish Power by Iberdrola, since it had authorised the concentration at issue in a decision of 26 March 2007 (COMP/M.4517 Iberdrola/Scottish Power).

110    Moreover, the Commission’s abovementioned replies to the parliamentary questions were formulated in such a way that there was nothing to suggest that the lack of selectivity of the scheme set up by Article 12(5) of the TRLIS concerned only direct acquisitions. The absence of any reference to the word ‘indirect’ cannot lead to a different conclusion, since those replies did not refer to ‘direct’ acquisitions either.

111    It follows that, by those statements to the Parliament, the Commission gave such precise, unconditional and consistent assurances that the beneficiaries of the scheme set up by Article 12(5) of the TRLIS, whether in respect of their direct acquisitions or their indirect acquisitions, entertained justified hopes that the aid scheme at issue was lawful, in the sense that it did not fall within the scope of State aid rules, and that any advantages derived from it could not, therefore, be subject to subsequent recovery proceedings.

112    Therefore, even it was entitled to adopt the contested decision, the Commission could not, without erring in law, refuse to recognise, in that decision, a legitimate expectation on the part of the beneficiaries of the aid scheme at issue in respect of their indirect acquisitions before 21 December 2007, or even before 21 May 2011, in the same terms as in the initial decisions.

113    That conclusion is all the more compelling since, in its wording, Article 12(5) of the TRLIS, read in conjunction with Article 21 of the TRLIS, did not expressly exclude indirect acquisitions. That point is, moreover, borne out by the fact that the Spanish tax authorities adopted the new administrative interpretation on the basis of those legal provisions, even though they had remained substantially unchanged since their adoption.

114    Furthermore, and notwithstanding the fact that the applicants could not have been unaware that Article 15 of Royal Decree 1777/2004 referred only to direct acquisitions, as regards the information which had to be provided to the Spanish authorities in order to be able to apply Article 12(5) of the TRLIS (recitals 40 and 159 of the contested decision), none of the arguments put forward by the Commission in the present actions, which correspond, in essence, to the content of recitals 189 to 200 of the contested decision, are capable of calling that conclusion into question.

115    First of all, contrary to what the Commission found, in essence, in recital 193 of the contested decision, the fact that the applicants were aware of the initial administrative interpretation, which excluded indirect acquisitions from the scope of Article 12(5) of the TRLIS, does not deprive of legitimacy the expectations which they were able to derive from the Commission’s statements that the scheme set up by Article 12(5) of the TRLIS did not constitute State aid as regards both direct and indirect acquisitions.

116    According to the case-law, only statements and conduct originating from the Commission must be taken into account in order to assess the legitimate expectation of the beneficiaries of the aid scheme at issue (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 71).

117    Thus, in the same way that, according to the case-law, the conduct of a national authority responsible for applying EU law, which acts in breach of that law, cannot give rise to a legitimate expectation on the part of an economic operator of beneficial treatment contrary to EU law (see judgment of 4 October 2007, Commission v Italy, C‑217/06, not published, EU:C:2007:580, paragraph 23 and the case-law cited), the interpretation of the national tax authorities as to the scope of the scheme set up by Article 12(5) of the TRLIS cannot affect the scope of the legitimate expectation arising from declarations made, at EU level, by the Commission.

118    Consequently, and in the light of the case-law cited in paragraph 116 above, it is irrelevant whether or not the applicants were aware that the initial administrative interpretation excluded indirect acquisitions from the scope of Article 12(5) of the TRLIS, since they had received precise assurances from the Commission that the scheme set up by Article 12(5) of the TRLIS, taken as a whole and without further clarification, did not constitute State aid.

119    Similarly, even if the Commission was unaware, at the time of its declarations, that the scheme set up by Article 12(5) of the TRLIS covered both direct and indirect acquisitions, that fact is irrelevant for the purposes of recognising a legitimate expectation on the part of the beneficiaries of that scheme in the present case. All that matters is that, by its public statements, the Commission implied that the scheme did not constitute State aid, without further clarification.

120    Furthermore, as the applicants acknowledged at the hearing, they were aware of the initial administrative interpretation, but had deliberately chosen not to follow it, since they considered it to be incorrect.

121    As stated in paragraph 67 above, under Spanish law, the undertakings concerned were – and still are – entitled to disagree with the Spanish tax authorities as to the correct interpretation of Article 12(5) of the TRLIS, until such time as the question has been addressed by the courts of that State, and ultimately by the Tribunal Supremo (Supreme Court), or even by the legislature of that State. As has already been pointed out in paragraphs 69 and 89 above, the Tribunal Supremo (Supreme Court) has not yet addressed that question. Accordingly, the scope of the scheme set up by Article 12(5) of the TRLIS still lacks precision and clarity, as the Commission pointed out in the contested decision (recitals 184 and 195 of that decision) and at the hearing.

122    In that regard, while it is true that, as the Commission submits, the applicants have not adduced evidence that the Spanish authorities accepted indirect acquisitions before 21 December 2007, the Commission has also failed to demonstrate that the Spanish courts excluded such shareholding acquisitions from the scope of Article 12(5) of the TRLIS before that date.

123    In those circumstances, the applicants cannot be required to exercise greater diligence than the Commission itself, as stated in recital 166 of the first decision, to which paragraph 89 of the judgment of 15 November 2018, Deutsche Telekom v Commission (T‑207/10, EU:T:2018:786) refers.

124    Thus, the applicants, as reasonably prudent, discriminating and diligent economic operators (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 69 and the case-law cited), could legitimately consider, on the basis of the replies given by the Commission to the parliamentary questions, that the scheme set up by Article 12(5) of the TRLIS did not constitute State aid, as regards both direct and indirect acquisitions.

125    In the light of those factors, and even if the Commission were entitled to adopt the contested decision, it must be held that the Commission erred in law by refusing to recognise a legitimate expectation on the part of the beneficiaries of the aid scheme at issue in respect of their indirect acquisitions in the contested decision.

126    That conclusion is also supported by the fact that the applicants were unaware of the content of the letter from the Spanish authorities of 4 June 2007, to which the Commission refers on several occasions in the contested decision (recitals 33, 97, 136 and 145, inter alia, of the contested decision), from which it is apparent that, in the administrative procedure which led to the adoption of the initial decisions, the Spanish authorities had explained to the Commission that the initial administrative interpretation only allowed the deduction of the financial goodwill for direct acquisitions of shareholdings in operating companies. Even if such a letter could serve as a basis for considering, as the Commission did in the contested decision, that the initial decisions covered only direct acquisitions, it cannot serve as a basis for denying that the undertakings which benefited from the aid scheme at issue, and were unaware of it, had a legitimate expectation that it was lawful.

127    Finally, the fact that the initial decisions had already declared the scheme set up by Article 12(5) of the TRLIS unlawful and incompatible with the internal market (recital 195 of the contested decision) is irrelevant, since the legitimate expectation of the beneficiaries does not originate in those decisions, but rather in the abovementioned replies by the Commission to the parliamentary questions (see paragraph 111 above) and since those decisions post-date 21 December 2007, the date on which that legitimate expectation ceased to exist, except as regards certain transactions referred to in the second decision (see paragraphs 16 and 99 above).

128    Therefore, even if the Commission were entitled to adopt the contested decision, the fourth plea must be upheld and Article 4(2) to (5) of the contested decision may therefore be annulled.

 Costs

129    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 the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Joins Cases T‑12/15, T‑158/15 and T‑258/15 for the purposes of the judgment;

2.      Annuls Commission Decision (EU) 2015/314 of 15 October 2014 on the State aid SA.35550 (13/C) (ex 13/NN) (ex 12/CP) implemented by Spain – Scheme for the tax amortisation of financial goodwill for foreign shareholding acquisitions;

3.      Orders the European Commission to bear the costs.

Svenningsen Mac Eochaidh Pynnä

Delivered in open court in Luxembourg on 27 September 2023.

[Signatures]

*      Language of the case: Spanish.