Action brought on 15 July 2019 – Mead Johnson Nutrition (Asia Pacific) and Others v Commission

(Case T-508/19)

Language of the case: English

Parties

Applicants: Mead Johnson Nutrition (Asia Pacific) Pte Ltd (Singapour, Singapour), MJN Global Holdings BV (Amsterdam, Netherlands), Mead Johnson BV (Nijmegen, Netherlands), Mead Johnson Nutrition Co. (Chicago, Illinois, United States) (represented by: C. Quigley, QC, M. Whitehouse and P. Halford, Solicitors)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul the Commission decision C(2018) 7848, or alternatively annul Articles 1, 2 and 5 of the Contested Decision insofar as they apply to the applicants ;

order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

In support of the action for annulment of Article 1(2) of the Contested Decision and, in so far as they apply to order recovery from the applicants, Articles 5(1) and 5(2) of the Contested Decision, the applicants rely on six pleas in law.

First plea in law, alleging that the Commission made manifest errors of assessment of the relevant provisions of the Income Tax Act of 2010 (“ITA 2010”).

Second plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in classifying the non-taxation of non-business royalty income under ITA 2010 as a “derogation”, “exemption” or “implicit exemption” from the Gibraltar corporate income tax system which gave rise to a State aid scheme under Article 107(1) TFEU, whereas the non-taxation of non-business royalty income was a valid choice within the fiscal and economic sovereignty of Gibraltar.

Third plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in failing to identify any economic advantage within the meaning and scope of Article 107(1) TFEU arising from the non-taxation of non-business royalty income under ITA 2010.

Fourth plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in wrongly classifying the non-taxation of non-business royalty income under ITA 2010 as a selective advantage within the meaning and scope of Article 107(1) TFEU.

Firth plea in law, alleging that despite denying it, even if there was any such selective advantage, the Commission made an error of law and/or a manifest error of assessment in determining that such advantage included also the non-taxation of royalty income which (as in the case of the applicants) did not as a matter of fact accrue in or derive from Gibraltar.

Sixth plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in classifying the alleged aid as new aid, rather than existing aid.

Furthermore, in support of the action for annulment of Article 2 of the Contested Decision and, in so far as they apply to order recovery from the applicants, Articles 5(1) and 5(2) of the Contested Decision, the applicants rely on four pleas in law:

First plea in law, alleging Infringement of Article 108(2) TFEU and Article 6 of the Procedural Regulation.

Second plea in law, alleging that the 2012 tax ruling for the applicant was consistent with ITA 2010 and did not constitute individual State aid.

Third plea in law, alleging that the Commission made manifest errors of assessment as regards the meaning and effect of the 2012 tax ruling.

Fourth plea in law, alleging misuse of power by the Commission.

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