Judgment of the General Court (Ninth Chamber) of 15 November 2018 –
Banco Santander v Commission
(Case T‑227/10)
(State aid — Provisions concerning corporate tax allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Selectivity — Reference system — Derogation — Difference in treatment — Justification of the difference in treatment — Undertakings benefiting from the measure — Legitimate expectations)
1. Judicial proceedings — Examination of the substance before examination of admissibility — Lawfulness
(see paras 23, 24)
2. State aid — Definition — Selective nature of the measure — Measure conferring a tax advantage — Reference framework for determining the existence of an advantage — Material scope — Criteria — Existence of a link between the purpose of the measure in question and that of the reference framework — Comparability of the situations covered by the measure in question and those covered by the reference framework
(Art. 107(1) TFEU)
(see paras 50-52, 82, 85, 89-93)
3. State aid — Definition — Selective nature of the measure — Measure conferring a tax advantage — Measure of a general nature applicable without discrimination to all economic operators — Measure not applicable to operations comparable to those governing its granting — Measure that can be qualified as selective
(Art. 107(1) TFEU)
(see para. 69)
4. State aid — Definition — Selective nature of the measure — Measure conferring a tax advantage — Reference framework for determining the existence of an advantage — Material scope — Measure constituting its own reference framework — Conditions — Clearly delineated tax regime with specific objectives — None — Systematic and general nature of the measure
(Art. 107(1) TFEU)
(see paras 114-119)
5. State aid — Definition — Selective nature of the measure — Derogation from the general tax system — Differentiation between undertakings in a comparable factual and legal situation — Criteria for assessment — Comparison with the objective pursued by the common tax system as a whole
(Art. 107(1) TFEU)
(see paras 130-136)
6. State aid — Definition — Selective nature of the measure — Derogation from the general tax system — Justification derived from the nature and general scheme of the system — Criteria for assessment — Measure aimed at achieving an objective within the mechanisms inherent in the general tax system — Whether appropriate — Extent of the burden of proof
(Art. 107(1) TFEU; Council Regulation No 659/1999)
(see paras 153-159, 163, 177, 185, 186, 193, 198)
7. Action for annulment — Purpose — Partial annulment — Condition — Severability of the contested provisions — Objective criterion — Requirement not met — Inadmissibility
(Art. 263 TFEU)
(see para. 208)
8. State aid — Definition — Assessment in the light of Article 107(1), TFUE — Taking into account previous practice — Not included
(Art. 107(1) TFEU)
(see paras 211, 236)
9. State aid — Examination by the Commission — Determination of the aid beneficiary — Actual enjoyment — Assessment
(Art. 107(1) TFEU)
(see paras 225-234)
10. State aid — Definition — Assessment in the light of the objective situation, irrespective of the conduct of the institutions — Taking that conduct into consideration when assessing the obligation to recover incompatible aid — Protection of legitimate expectations
(Art. 107(1) TFEU; Council Regulation No 659/1999, Art. 14)
(see paras 245-259)
11. State aid — Recovery of unlawful aid — Aid granted in infringement of the rules of procedure laid down in Article 108 TFEU — Legitimate expectations entertained by the recipients — None save in exceptional circumstances –Legitimate expectations arising from specific, unconditional and consistent assurances provided by the Commission — Publication of the decision to open the formal investigation procedure terminating those legitimate expectations
(Arts 107(1) TFEU and 108(3) TFEU)
(see paras 261-284)
Re:
| Application based on Article 263 TFEU and seeking annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 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) and, in the alternative, annulment of Article 4 of that decision. |
Operative part
The Court:
2. | | Orders Banco Santander, SA to bear its own costs and to pay those incurred by the European Commission. |