ORDER OF THE GENERAL COURT (Eighth Chamber)
21 March 2012 (*)
(Action for annulment – State aid – Aid scheme permitting the tax amortisation of financial goodwill for foreign shareholding acquisitions – Decision declaring the aid scheme incompatible with the common market and not ordering recovery of the aid – Absence of individual concern – Inadmissibility)
In Case T‑174/11,
Modelo Continente Hipermercados, SA, sucursal en España, established in Madrid (Spain), represented by J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers,
applicant,
v
European Commission, represented by R. Lyal and C. Urraca Caviedes, acting as Agents,
defendant,
APPLICATION for 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),
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot (Rapporteur), President, M.E. Martins Ribeiro and A. Popescu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By a number of written questions raised in 2005 and 2006 (E‑4431/05, E‑4772/05, E‑5800/06 and P‑5509/06), Members of the European Parliament asked the Commission of the European Communities whether the arrangement provided for in Article 12(5) – a provision introduced into the Spanish Corporate Tax Law by Ley 24/2001 de Medidas Fiscales, Administrativas y del Orden Social (Law 24/2001 on fiscal, administrative and social measures) of 27 December 2001 (BOE No 313 of 31 December 2001, p. 50493) – and 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 approving the recast text of the Corporate Tax Law) of 5 March 2004 (BOE No 61, of 11 March 2004, p. 10951), (‘the scheme at issue’), should be classified as State aid. The Commission replied in essence that, according to the information available to it, the scheme at issue did not appear to fall within the scope of the State aid rules.
2 By letters of 15 January and 26 March 2007, the Commission asked the Spanish authorities to provide it with information so that it might assess the scope and the effects of the scheme at issue. By letters of 16 February and 4 June 2007, the Kingdom of Spain sent the Commission the information requested.
3 By fax of 28 August 2007, the Commission received a complaint from a private operator alleging that the scheme at issue constituted State aid incompatible with the common market.
4 By decision of 10 October 2007 (summarised in OJ 2007 C 311, p. 21), the Commission initiated a formal investigation procedure in respect of the scheme at issue.
5 By letter of 5 December 2007, the Commission received comments from the Kingdom of Spain on the decision initiating the formal investigation procedure. Between 18 January and 16 June 2008, the Commission also received comments from 32 interested third parties. By letters of 30 June 2008 and 22 April 2009, the Kingdom of Spain submitted its observations on the interested third parties’ comments.
6 On 18 February 2008, 12 May and 8 June 2009, technical meetings were held with the Spanish authorities. Other technical meetings were also held with some of the 32 interested third parties.
7 By letter of 14 July 2008 and by email of 16 June 2009, the Kingdom of Spain submitted further information to the Commission.
8 The Commission terminated the procedure, with respect to shareholding acquisitions within the European Union, by 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) (‘the contested decision’).
9 The contested decision declares that the scheme at issue, which constitutes a tax advantage enabling Spanish companies to amortise the financial goodwill resulting from the acquisition of shareholdings in foreign companies, is incompatible with the common market where it applies to the acquisition of shareholdings in companies established within the European Union.
10 Under Article 1(2) and (3) of the contested decision however, the scheme at issue continues to apply, by virtue of the principle of the protection of legitimate expectations, to acquisitions of shareholdings which took place before the publication in the Official Journal of the European Union of the decision initiating the formal investigation procedure on 21 December 2007, and to acquisitions of shareholdings, the completion of which, requiring the approval of a regulatory authority to which the operation had been notified before that date, took place irrevocably before 21 December 2007.
Procedure and forms of order sought by the parties
11 By application lodged at the Court Registry on 18 March 2011, the applicant, Modelo Continente Hipermercados, SA, sucursal en España, brought the present action.
12 By document lodged at the Court Registry on 26 May 2011, the Commission raised a plea of inadmissibility, pursuant to Article 114(1) of the Rules of Procedure of the General Court.
13 On 8 July 2011 the applicant submitted its observations on the Commission’s plea of inadmissibility.
14 The applicant claims, in substance, that the Court should:
– declare the action admissible and order that the proceedings should continue;
– annul Article 1(1) of the contested decision;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
Law
16 Under Article 114(1) of the Rules of Procedure, on the application of a party, the Court can rule on admissibility without going to the substance of the case. In accordance with Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise. In the present case, the Court takes the view that it has sufficient information from the documents in the file, and decides that there is no need to open the oral procedure.
17 The Commission claims that the present action is inadmissible on the ground that the applicant has not shown either that it had a legal interest in bringing proceedings or that the contested decision was of individual concern to it.
18 It is appropriate to begin by examining the Commission’s second ground of inadmissibility.
19 Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
20 Since the contested decision was adopted following the formal investigation procedure and was not addressed to the applicant, the question whether it is of individual concern to the applicant must be assessed according to the criteria laid down in Case 25/62 Plaumann v Commission [1963] ECR 95, 107. Thus, the applicant must show that the contested decision affects it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and by virtue of these factors distinguishes it individually just as in the case of the person addressed by that decision (see, to that effect, Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36 and the case-law cited).
21 The applicant relies on the fact that it is a beneficiary under the scheme at issue in order to show that the contested decision, declaring that scheme unlawful and incompatible with the common market where it applies to acquisitions of shares within the European Union, is of individual concern to it.
22 It is settled case-law that an undertaking cannot, in principle, bring an action for annulment of a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis that undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner (see Italy v Commission, paragraph 37 and the case-law cited, and Case T‑309/02 Acegas v Commission [2009] ECR II‑1809, paragraph 47 and the case-law cited).
23 However, where the decision in question is of concern to the applicant undertaking not only by virtue of its being an undertaking in the sector concerned and a potential beneficiary of the aid scheme, but also by virtue of its being an actual beneficiary of individual aid granted under that scheme, the recovery of which has been ordered by the Commission, that decision is of individual concern to the applicant and the applicant’s action against it is admissible (see, to that effect, Joined Cases C‑15/98 and C‑105/99 Italy and Sardegna Lines v Commission [2000] ECR I‑8855, paragraphs 34 and 35, and judgment of 10 September 2009 in Case T‑75/03 Banco Comercial dos Açores v Commission, not published in the ECR, paragraph 44).
24 Accordingly, it is appropriate to determine whether the applicant is an actual beneficiary of individual aid granted under the aid scheme to which the contested decision relates, recovery of which has been ordered by the Commission (see, to that effect, Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ and Others v Commission [2011] ECR I‑0000, paragraph 53 and the case-law cited, and Case T‑221/10 Iberdrola v Commission [2012] ECR II‑0000, paragraph 27).
25 The applicant claims that the contested decision is of individual concern to it by virtue of an acquisition of shares in a company established in Portugal. The applicant explains that on 26 July 2007 its parent company, established in Portugal, entered into a contract of purchase with a Netherlands company, subject to obtaining approval from the Portuguese competition authority. That authority approved the transaction in question on 27 December 2007, after being informed that the applicant’s parent company’s ‘contractual position’ had been transferred to the applicant pursuant to the contract of purchase. The transaction was eventually competed on 31 December 2007 and the applicant submitted in an annex to the application a number of documents showing that it had applied the scheme at issue to that transaction. Thus, the applicant has established its capacity as an actual beneficiary of the scheme at issue. However, it states that it is not subject to an obligation to make restitution.
26 In that regard, the applicant contends, relying on the case-law, that a measure declaring aid incompatible cannot be recognised as being of individual concern to an applicant only in cases where that measure requires the recovery of that aid. In the applicant’s submission, the recovery obligation is examined in the case-law purely for the sake of completeness.
27 That argument must be rejected. The judgments cited at paragraph 23 above, like the decisions cited by the applicant – in identical terms – make individual concern to an applicant of a decision declaring an aid scheme incompatible subject to his showing that he has the status of an actual beneficiary of individual aid granted under that scheme, recovery of which has been ordered by the Commission (Case T‑136/05 Salvat père & fils and Others v Commission [2007] ECR II‑4063, paragraph 70; Case T‑292/02 Confservizi v Commission [2009] ECR II‑1659, paragraph 44; and Case T‑301/02 AEM v Commission [2009] ECR II‑1757, paragraph 45). It cannot be inferred from that formulation, which places the recovery obligation on the same level as the applicant’s status as an actual beneficiary, that the requirement of such an obligation is of secondary importance, or indeed superfluous.
28 It should further be noted that the judgment in Joined Cases T‑254/00, T‑270/00 and T‑277/00 Hôtel Cipriani and Others v Commission [2008] ECR II‑3269, paragraph 84, also cited by the applicant, merely reiterates the two conditions referred to above and even places particular importance on the recovery order, taking the view that individualisation results in such a case from the specific adverse effect of the recovery order on the interests of the members of the closed class, who are fully identifiable. In the appeal against that judgment, the Court of Justice considered that this Court had been right to hold that the applicant undertakings had standing to bring an action in that they were individually concerned by the decision at issue by reason of the particular detriment caused to their legal situation by the order for recovery of the aid concerned (Comitato ‘Venezia vuole vivere’ and Others v Commission, paragraph 51).
29 Contrary to the applicant’s contention, moreover, it cannot be inferred from paragraph 56 of Comitato ‘Venezia vuole vivere’ and Others v Commission that the Court of Justice asserted categorically that recovery of the advantage is not a condition sine qua non in order for an applicant to be regarded as being individually concerned. At that paragraph the Court of Justice stated that the order for recovery already concerned all the beneficiaries of the system in question individually in that they were exposed, as from the time of the adoption of the contested decision, to the risk that the advantages which they have received would be recovered, and thus found their legal position affected, and there was no need to examine additional conditions, concerning situations in which the Commission’s decision is not accompanied by a recovery order. The Court of Justice also stated, in the same paragraph, that the eventuality that, subsequently, the advantages declared illegal might not be recovered from their beneficiaries did not exclude the latter from being regarded as individually concerned. Thus, the Court of Justice merely stated that the recovery order in the decision in issue was sufficient to individualise the beneficiaries, it being unnecessary to consider whether that order would have effects at national level.
30 It follows that where a contested measure requires recovery of the aid granted under an aid scheme, it is of individual concern only to applicants to whom the recovery obligation applies.
31 Consequently, as the applicant is not subject to a recovery obligation, it cannot be considered to be individually concerned by the contested decision.
32 If the applicant’s argument – set out in the part of its pleadings dealing with the interest in bringing proceedings – that dismissal of the present action as inadmissible is tantamount to depriving it of effective judicial protection must be interpreted as also being invoked in support of its standing as a person to whom the contested decision is of individual concern, it must be borne in mind that the European Union is based on the rule of law and the acts of its institutions are subject to review of their compatibility with the Treaty and with the general principles of law, which include fundamental rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the European Union’s legal order. However, in the present case, the applicant is not in the least deprived of any effective judicial protection. Even if the present action is declared inadmissible, there is nothing to prevent the applicant from requesting the national court, in the course of the domestic proceedings whose existence it alleges, in which pleas are raised putting in issue the absence of a recovery obligation which the applicant enjoys under the contested decision, to make a reference for a preliminary ruling under Article 267 TFEU on the validity of the contested decision in so far as it finds that the scheme at issue is incompatible (see, to that effect, Joined Cases T‑443/08 and T‑455/08 Freistaat Sachsen and Others v Commission [2011] ECR II‑0000, paragraph 55 and the case-law cited). Contrary to the applicant’s contention, the existence of other actions before this Court against Article 1(1) of the contested decision does not impair such judicial protection. Either the Court will annul that provision, and that annulment will be binding on the national courts, or it will dismiss the actions and the national court’s obligation to refer a question to the Court of Justice for a preliminary ruling in case of doubt as to the validity of the provision in question will remain (see, to that effect, Case 314/85 Foto-Frost [1987] ECR 4199, 4225, paragraph 15).
33 The action must therefore be dismissed as inadmissible and it is not necessary to examine the Commission’s first ground of inadmissibility, alleging that the applicant has no interest in bringing proceedings.
Costs
34 Under Article 87(2) 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 applicant has been unsuccessful, it must be ordered to pay the costs incurred by the Commission, in addition to bearing its own costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. The action is dismissed.
2. Modelo Continente Hipermercados, SA, sucursal en España, is to pay the costs.
Luxembourg, 21 March 2012.