Opinion of the Advocate General — ECLI:EU:C:2016:537
Date: 2016-07-07
Language of the case: Spanish
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Spain

Summary — Judgment of the Court (First Chamber), 10 November 2016 1. Judicial proceedings — Application initiating proceedings — Formal requirements — Limitation set out in the Court's Practice Directions to Parties — Directions are indicative and have no binding force (Court’s Practice Directions to Parties, Recitals 1 and 3 and point 20) 2. Appeal — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Inadmissibility — Challenge to the interpretation or application of EU law made by the General Court — Admissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) 3. Appeal — Grounds — Incorrect assessment of the facts and evidence — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) 4. State aid — Provisions of the Treaty — Scope — Taxes — Exclusion save for taxes financing an aid — Tax partly financing an aid imposed on competitors of the beneficiary with a view to accomplishment of a public service mission and not imposed on that beneficiary — Proof of binding appropriation between the tax and the financing of the aid concerned —None (Arts 107 TFEU and 108 TFEU) 5. Appeal — Cross-appeal — Subject-matter — Need to rely on different grounds than those relied upon in the response to the appeal in the main proceedings (Rules of Procedure of the Court of Justice, Art. 178(3), second sentence) 6. Judicial proceedings — Intervention — Pleas different from those of the supported main party— Admissibility — Condition — Connection with the subject-matter of the case (Statute of the Court of Justice, Art. 40; Rules of Procedure of the Court of Justice, Arts 129 and 132(2)(b)) 1. The Practice directions to parties concerning cases brought before the Court are indicative and have no binding force. As is apparent from recitals 1 to 3 of those directions, they were adopted in order to supplement and clarify the rules applicable to the conduct of proceedings before the Court, in the interest of the proper administration of justice, and are not intended to replace the relevant provisions of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court. It is therefore clearly apparent from the wording of paragraph 20 of those practice directions, which state that ‘the appeal …, unless there are special circumstances, should not exceed 25 pages’, that that recital does not set out an absolute limitation on the number of pages to which the admissibility of such an appeal is subject, but that it merely provides a recommendation in that regard to the parties. It follows that the appeal may not be rejected as inadmissible on the ground that it exceeds a certain number of pages. (see paras 24-26) 2. See the text of the decision. (see paras 27-29) 3. See the text of the decision. (see paras 43-45, 49) 4. Taxes do not fall within the scope of the provisions of the Treaty relating to State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure. In order for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market. As part of the fiscal measures partly financing the aid which are imposed on competitors of the beneficiary in order to enable it to carry out a public service mandate and which are not imposed on that beneficiary, those fiscal measures do not form part of the aid provided the following conditions are met: the amount of the aid is fixed by reference to the net costs relating to the fulfilment of the public service mandate; where the tax revenue exceeds the cost of carrying out that mandate, the surplus is reallocated to a reserve fund or to the public treasury; and where that revenue is insufficient to cover the costs, the Member State is required to cover the shortfall. Since the revenue from the fiscal measures at issue has no direct impact on the amount of the aid granted, given that neither the grant or the amount of the aid are based on that revenue and that the revenue from that aid is not used to finance it, in that part of the revenue may be reallocated to other purposes, it cannot be held that those tax measures are hypothecated to the aid in question. Furthermore, the possible inapplicability of the fiscal measures because of their possible incompatibility with EU law does not directly entail the calling into question of the aid, since the Member State is required to cover the shortfall between the sources of funding available to the beneficiary of the aid and all of the costs incurred by it in carrying out its public service obligations. Moreover, the fact that the obligation to pay that tax causes other companies an additional competitive disadvantage on the markets on which they operate in competition with the beneficiary, since the latter is not liable to pay such a tax, is not sufficient to demonstrate that such a tax is an integral part of the aid. The question whether a tax is an integral part of an aid financed by a tax depends not on the existence of a competitive relationship between the person liable to pay the tax and the beneficiary of the aid, but only on whether that tax is hypothecated to the aid in question under the relevant national legislation. To hold otherwise would lead to the conclusion that any tax levied at sectoral level and imposed on undertakings in competition with the beneficiary of the aid financed by the tax must be examined under Articles 107 and 108 TFEU (see paras 65, 68-72, 77, 79-81, 83) 5. See the text of the decision. (see paras 108, 110) 6. A party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law. Moreover, although, under Article 132(2)(b) of the Rules of Procedure of the Court, the statement in intervention is to set out the pleas in law and arguments relied on by the intervener, that does not mean that the intervener is free to rely on new pleas in law, distinct from those relied on by the applicant. That provision falls within the context of the limits established by the intervention procedure and must be read in the light of Article 129 of that regulation, which states that the intervention is to be limited to supporting, in whole or in part, the form of order sought by one of the parties, that it is ancillary to the main proceedings and that the intervener must accept the case as he finds it at the time of his intervention. (see paras 114, 121)