Appeal brought on 16 August 2022 by United Kingdom of Great Britain and Northern Ireland against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 8 June 2022 in Joined Cases T-363/19 and T-456/19, United Kingdom and ITV v Commission
(Case C-555/22 P)
Language of the case: English
Parties
Appellant: United Kingdom of Great Britain and Northern Ireland (represented by: L. Baxter, Agent, P. Baker QC and T. Johnston, Barrister)
Other parties to the proceedings: European Commission, ITV plc, LSEGH (Luxembourg) Ltd, London Stock Exchange Group Holdings (Italy) Ltd
Form of order sought
The appellant claims that the Court should:
set aside in its entirety the judgment under appeal and grant the relief sought by United Kingdom before the General Court;
alternatively, set aside in its entirety the judgment under appeal and remit the case to the General Court for final determination; and
order the Commission to pay the costs of this appeal and the proceedings before the General Court.
Pleas in law and main arguments
In support of the appeal, the appellant relies on five pleas in law:
First, the General Court erred in law and/or infringed EU law because it distorted the underlying facts and mischaracterized them in law when it concluded that the reference system was the United Kingdom CFC (controlled foreign companies) legislation.
Second, the General Court erred in law when it held that the United Kingdom CFC legislation gave rise to an advantage. This error of law followed from the distortions and mischaracterisations of the facts in relation to the role of significant people functions (“SPFs”) in the United Kingdom CFC legislation and the relationship between Chapters 5 and 9.
Third, the General Court erred in law when assessing the objective and the selectivity of the United Kingdom CFC legislation. The judgment under appeal contains repeated distortions and/or manifest errors of understanding with regard to the role of SPFs in the United Kingdom CFC legislation and the interrelation between Chapters 5 and 9 thereof. It also fails to record or address core elements of the United Kingdom’s pleading, in breach of the duty to give reasons.
Fourth, the General Court failed to address the United Kingdom’s argument that the distinction in the Commission Decision1 between United Kingdom SPFs and United Kingdom connected capital was irrational, in breach of the duty to give reasons. Furthermore, the General Court rejected the justification of administrative practicability for two reasons related to the alleged lack of evidence before the General Court; neither was sustainable, and both involved a clear distortion of the facts that were in evidence before the Court.
Fifth, the General Court’s reasoning contains a clear error of law as to the requirement of the freedom of establishment and the meaning of the judgment of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C-196/04, EU:C:2006:544, (the “Cadbury Schweppes case”) amounting to a disregard of that case. The General Court’s conclusion on this issue reveals several errors. First, it rests on a misunderstanding of the role of the SPFs in United Kingdom CFC legislation. Second, the General Court appears to have assumed that United Kingdom adopted a purely territorial system. Third, this part of the judgment under appeal fails to record or deal with the substantial arguments made by United Kingdom with regard to the impact of the Cadbury Schweppes line of cases on the design of its CFC legislation.
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1 Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption (OJ 2019 L 216, p. 1).