Opinion of the Advocate General — ECLI:EU:C:2017:854
Date: 2017-11-09
Language of the case: Spanish
Subject matter: State aids;Competition;Right of establishment;Taxation
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 26 April 2018 1. Freedom of establishment — Tax legislation — Corporation tax — National rules governing a regional tax on large retail establishments — Lawfulness (Arts 49 TFEU and 54 TFEU) 2. 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 (Arts 107(1) TFEU) 1. Articles 49 and 54 TFEU must be interpreted as not precluding a tax levied on large retail establishments, such as that at issue in the main proceedings. In the cases in the main proceedings, the legislation in question lays down a criterion relating to the sales area of the establishment which does not give rise to any direct discrimination. Nor does the evidence submitted to the Court show that that criterion disadvantages in most cases nationals from other Member States or companies whose seat is in another Member State. (see paras 19, 20, 23, operative part 1) 2. A tax such as that at issue in the main proceedings imposed on large distribution establishments according, in essence, to their sales area, does not constitute State aid within the meaning of Article 107(1) TFEU to the extent that it exempts establishments whose sales area does not exceed 500 m2 and those whose sales area exceeds that threshold but whose basis of assessment does not exceed 2 000 m2. Nor, in so far as that tax exempts establishments which pursue the business of selling machinery, vehicles, tools and industrial supplies, construction materials, plumbing materials and doors and windows, for sale only to professionals, fittings for individual, conventional and specialist establishments, and motor vehicles, as well as garden centres and service stations, does it constitute State aid within the meaning of Article 107(1) TFEU, provided that those establishments do not have as significant an adverse effect on the environment and on town and country planning as the others, which it is for the referring court to ascertain. (see para. 51, operative part 2)