# C_2014253EN.01005101.xml

| 4.8.2014 | EN | Official Journal of the European Union | C 253/51 |
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4.8.2014

EN

Official Journal of the European Union

C 253/51

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Action brought on 10 June 2014 — Duro Felguera v Commission

(Case T-401/14)

2014/C 253/67

Language of the case: Spanish

Parties

Parties

Applicant: Duro Felguera, SA (Gijón, Spain) (represented by: A. López Gómez, lawyer)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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annul the contested decision;

| — | in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market; |
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in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market;

| — | in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery; |
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in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;

| — | in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law; |
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in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

| — | in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities, and |
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in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities, and

| — | order the Commission to pay the costs of these proceedings. |
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order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The decision contested in the present proceedings is the same as that contested in Case T-515/13 Spain v Commission.

Spain

Commission

In support of the action, the applicant relies on six pleas in law.

| 1. | By its first plea in law, the applicant claims that the contested decision infringes Article 107 TFEU in categorising as State aid the STLS and the individual measures of which it is composed. The applicant alleges that the holistic approach taken by the Commission is erroneous, since it confuses a group of private legal transactions carried out by taxable persons in order to optimise their profits with the establishment of an ad hoc mechanism by the tax authorities to generate tax incentives. |
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1.

By its first plea in law, the applicant claims that the contested decision infringes Article 107 TFEU in categorising as State aid the STLS and the individual measures of which it is composed. The applicant alleges that the holistic approach taken by the Commission is erroneous, since it confuses a group of private legal transactions carried out by taxable persons in order to optimise their profits with the establishment of an ad hoc mechanism by the tax authorities to generate tax incentives.

ad hoc

| 2. | By its second plea in law, the applicant alleges that the Commission incorrectly identified the beneficiary of the aid, since the Commission itself acknowledges that the recipient of the aid, or most of it, is the ship owner that acquires the ship, and not the EIG. Although the early depreciation is requested by the EIG and first benefits its members, 90 % of that benefit is passed on to the shipping companies. |
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2.

By its second plea in law, the applicant alleges that the Commission incorrectly identified the beneficiary of the aid, since the Commission itself acknowledges that the recipient of the aid, or most of it, is the ship owner that acquires the ship, and not the EIG. Although the early depreciation is requested by the EIG and first benefits its members, 90 % of that benefit is passed on to the shipping companies.

| 3. | By its third plea in law, the applicant alleges infringement of Articles 107 and 108 TFEU, in that the Commission categorised the application of the Spanish tonnage tax regime in certain cases as new aid rather than as existing aid. |
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3.

By its third plea in law, the applicant alleges infringement of Articles 107 and 108 TFEU, in that the Commission categorised the application of the Spanish tonnage tax regime in certain cases as new aid rather than as existing aid.

| 4. | By its fourth plea in law, the applicant alleges infringement of Articles 107 and 296 TFEU, in that the Commission failed to state adequate reasons for its decision to regard the EIGs and their investors as the ultimate and only beneficiaries of the State aid, and thus liable for its recovery. |
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4.

By its fourth plea in law, the applicant alleges infringement of Articles 107 and 296 TFEU, in that the Commission failed to state adequate reasons for its decision to regard the EIGs and their investors as the ultimate and only beneficiaries of the State aid, and thus liable for its recovery.

| 5. | By its fifth plea, and in the alternative, the applicant alleges that the recovery of the aid cannot be ordered, since the contested decision infringes the general principles of equal treatment, of proportionality and of the protection of legitimate expectations. |
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5.

By its fifth plea, and in the alternative, the applicant alleges that the recovery of the aid cannot be ordered, since the contested decision infringes the general principles of equal treatment, of proportionality and of the protection of legitimate expectations.

| 6. | In its sixth plea, and in the alternative, the applicant alleges that, in making a determination as to the validity of clauses in private contracts entered into under Spanish law between the investors and other private entities, the contested decision infringed the principle of conferral of powers and Articles 107 TFEU and 108 TFEU, Article 14 of Council Regulation (EC) No 659/1999 and Article 16 of the Charter of Fundamental Rights of the European Union. |
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6.

In its sixth plea, and in the alternative, the applicant alleges that, in making a determination as to the validity of clauses in private contracts entered into under Spanish law between the investors and other private entities, the contested decision infringed the principle of conferral of powers and Articles 107 TFEU and 108 TFEU, Article 14 of Council Regulation (EC) No 659/1999 and Article 16 of the Charter of Fundamental Rights of the European Union.

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