Judgment — ECLI:EU:T:2018:781
Date: 2018-11-15
Language of the case: Spanish
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Spain

Judgment of the General Court (Ninth Chamber) of 15 November 2018 – Sigma Alimentos Exterior v Commission (Case T‑239/11) (State aid — Corporate income tax provisions allowing companies domiciled in Spain to amortise the goodwill resulting from acquisitions 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 — Differential treatment — Justification of differential treatment) 1. Judicial proceedings — Examination of the substance before examination of admissibility — Lawfulness (see paras 26, 27) 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 subject-matter 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 47, 48, 82-93) 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 113-117) 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 128-134) 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 (Art. 107(1) TFEU; Council Regulation No 659/1999) (see paras 135-145, 157, 165, 166) Re: Application pursuant to Article 263 TFEU seeking the annulment of Article 1(1) and Article 4 of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1). Operative part The Court: 1. Dismisses the action; 2. Orders Sigma Alimentos Exterior, SL to bear its own costs and to pay those incurred by the European Commission.