Judgment;Summary — ECLI:EU:C:2022:994
Date: 2022-12-15
Language of the case: Portuguese
Court formation: Tenth Chamber
Subject matter: Agriculture and Fisheries;State aids;Competition;Fisheries policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-23/22 – 1 
Case C-23/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 January 2022 
Referring court: 
Tribunal Arbitral Tributário (Centro de Arbitragem 
Administrativa – CAAD) (Portugal) 
Date of the decision to refer: 
27 December 2021 
Applicant: 
Caxamar – Comércio e Indústria de Bacalhau, S.A. 
Defendant: 
Autoridade Tributária e Aduaneira 
  
Subject matter of the main proceedings 
This request for a preliminary ruling arises in the course of proceedings between 
CAXAMAR – Comércio e Indústria de Bacalhau, S.A. (‘CAXAMAR’), and the 
Autoridade Tributária e Aduaneira (Tax and Customs Authority; ‘the AT’), in 
which CAXAMAR is seeking the annulment of the assessments of the imposto 
sobre o rendimento das pessoas coletivas (corporation tax; ‘IRC’) and the 
corresponding interest resulting from the corrections made by the AT to the 
taxable amount for the 2016 and 2018 tax years, in the sum of EUR 126 302.62. 
Subject matter and legal basis of the request 
CAXAMAR, a public limited company engaged in the salting, drying and other 
processing of fishery products, undertook investment projects in connection with 
cod processing in 2016 and 2018, utilising the tax advantages established in the 
Regime Fiscal de Apoio ao Investimento (Tax Scheme to Support Investment; 
‘the RFAI’). The AT considers that the use made of the advantages in question 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-23/22 
 
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was illegal in that it did not fall within either the RFAI or the general block 
exemption regulation (Commission Regulation (EU) No 651/2014 of 16 June 
2014; ‘the GBER’) in particular, Article 1 and Article 2(11) thereof, and 
Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 
11 December 2013. 
Question referred for a preliminary ruling 
According to the correct interpretation of the Guidelines on regional State aid for 
2014-2020, in conjunction with the provisions of Commission Regulation (EU) 
No 651/2014 of 16 June 2014, in particular Article 1 and Article 2(11) thereof, 
Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 
11 December 2013, and Annex I to the Treaty on the Functioning of the European 
Union, is it possible to conclude that, under Articles 2(2) and 22(1) of the Código 
Fiscal do Investimento (Tax Code on Investment), approved by Decreto-Lei n.º 
162/2014 (Decree-Law No 162/2014) of 31 October 2014, and Articles 1 and 2 of 
the Portaria n.º 282/2014 (Ministerial Order No 282/2014) of 30 December 2014, 
the processing of fishery and aquaculture products relating to ‘salted cod’, ‘frozen 
cod’ and ‘desalted cod’ in Economic Activity Code 10204Rev3 does not 
constitute the processing of agricultural products for the purposes of granting the 
relevant tax advantages? 
Provisions of EU law relied on 
Guidelines on regional State aid for 2014-2020 (Text with EEA relevance) (OJ 
2013 C 209, p. 1). 
Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain 
categories of aid compatible with the internal market in application of Articles 107 
and 108 of the Treaty (OJ 2014 L 187, p. 1): Article 1 and Article 2(11). 
Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 
11 December 2013 on the common organisation of the markets in fishery and 
aquaculture products, amending Council Regulations (EC) No 1184/2006 and 
(EC) No 1224/2009 and repealing Council Regulation (EC) No 104/2000 (OJ 
2013 L 354, p. 1). 
Treaty on the Functioning of the European Union (OJ 2016 C 202): Annex I. 
Provisions of national law relied on 
Decreto-Lei n.º 162/2014, de 31 de outubro, que aprova um novo Código Fiscal 
do Investimento e procede à revisão dos regimes de benefícios fiscais ao 
investimento produtivo, e respetiva regulamentação (Decree-Law No 162/2014 of 
31 October 2014 approving a new Tax Code on Investment and amending the 
CAXAMAR 
 
3 
schemes providing tax advantages for productive investment and the regulation 
thereof): Articles 2(2) and 22(1). 
‘Article 2 
Subject matter 
[…] 
2 – The subject matter of the investment projects referred to in the previous 
paragraph must, inter alia, fall within the following economic activities and must 
also fall within the sectoral scope established by the Guidelines on regional State 
aid for 2014-2020, published in the Official Journal of the European Union No C 
209 of 23 July 2013 (‘the Guidelines’), and by the GBER: 
(a) extractive industry and processing industry; 
(b) tourism, including activities of tourist interest; 
(c) computing activities and services and related activities and services; 
(d) agricultural, aquaculture, fishing, farming and forestry activities; 
(e) research and development and high technology intensity activities; 
(f) information and audiovisual and multimedia production technologies; 
(g) defence, environment, energy and telecommunications; 
(h) shared service centre activities. 
[…] 
Article 22 
Scope and definitions 
1 – The RFAI applies to persons liable for IRC who carry on an activity within the 
sectors expressly listed in Article 2(2), having regard to the activity codes defined 
in the ministerial order referred to in Article 2(3), other than activities that are 
excluded from the sectoral scope of the Guidelines and the GBER. 
[…]’ 
Portaria n.º 282/2014, de 30 de dezembro, que define os códigos de atividade 
económica (CAE) correspodentes a várias atividades [Ministerial Order 
No 282/2014 of 30 December 2014 defining the economic activity codes (CAE) 
for various activities]: Articles 1 and 2. 
‘Article 1 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-23/22 
 
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European Union framework 
Under the Guidelines on regional State aid for 2014-2020, published in the 
Official Journal of the European Union No C 209 of [23] July 2013, and 
Regulation (EU) No 651/2014 of [17] June 2014, published in the Official Journal 
of the European Union No [L] 187 of 26 June 2014 (the general block exemption 
regulation), investment projects relating to economic activities in the steel, coal, 
fishery and aquaculture and primary agricultural production sectors, those 
involving the processing and marketing of the agricultural products listed in 
Annex I to the Treaty on the Functioning of the European Union, and those in the 
forestry, shipbuilding, synthetic fibres, transport and related infrastructure, and 
energy generation, distribution and infrastructure sectors may not obtain tax 
advantages. 
Article 2 
Sectoral scope 
Without prejudice to the restrictions established in the previous article, the 
economic activities listed in Article 2(2) of Decree-Law No 162/2014 of 
31 October 2014 correspond to the following codes in the Portuguese 
Classification of Economic Activities, Revision 3 (CAE-Rev.3), approved by 
Decree-Law No 381/2007 of 14 November 2007: 
(a) extractive industries – divisions 05 to 09; 
(b) processing industries – divisions 10 to 33; 
(c) accommodation – division 55; 
(d) food and beverage services and similar – division 56; 
(e) publishing activities – division 58; 
(f) motion picture, video and television programme production activities – group 
591; 
(g) computer consultancy, programming and related activities – division 62; 
(h) data processing, hosting and related activities and web portals – group 631; 
(i) scientific research and development activities – division 72; 
(j) activities of tourist interest – subclasses 77210, 90040, 91041, 91042, 93110, 
93210, 93292, 93293 and 96040; 
(k) administrative services and business support activities – classes 82110 and 
82910.’ 
CAXAMAR 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 CAXAMAR is a public limited company engaged primarily in the salting, drying 
and other processing of fishery and aquaculture products (code 10204 CAE-Rev3) 
and, secondarily, in the freezing of fishery and aquaculture products (code 10202 
CAE-Rev3) and the wholesaling of other food products (code 46382 CAE-Rev3); 
it is subject to the general IRC scheme and the normal monthly VAT scheme. 
2 The company was the subject of a tax inspection carried out by the Santarém 
Finance Directorate, which examined the application of the tax advantages 
granted under the RFAI. In that context, the inspection services made a series of 
corrections which consisted in disapplying the reductions made to the taxable 
amount for IRC purposes for the 2016 and 2018 tax years in connection with the 
advantages offered by the RFAI, since the activity carried on by the company did 
not come within the scope of that scheme. That scope is defined by the provisions 
in Article 2(2) and (3) and Article 22(1) and (2) of the Código Fiscal do 
Investimento (Tax Code on Investment; ‘the CFI’), and in Articles 1 and 2 of 
Ministerial Order No 282/2014 of 30 December 2014. Nor does the activity come 
within the sectoral scope of the [Guidelines] and the GBER, as read with Annex I 
to the TFEU. 
3 The costs in question are inherent in the investments, as regards the ‘RFAI’ tax 
benefit for the 2016 and 2018 tax years, made in connection with CAE 10204-R3, 
which applies to the ‘SALTING, DRYING AND OTHER PROCESSING 
ACTIVITIES OF FISHERY AND AQUACULTURE PRODUCTS’.  
4 The AT concluded that the aim of the investment project in question is to increase 
the capacity of an existing establishment and that it was undertaken to improve 
and extend processes for ‘salting, desalting and freezing cod’. It considered that 
the output from the processing activities carried on by CAXAMAR, which fall 
within CAE 10204 (‘salted cod’, ‘frozen cod’, ‘desalted cod’) and within the 
chapters of the Brussels nomenclature referred to in Annex I to the Treaty, comes 
within the concept of ‘processing of agricultural goods’, since the end product is 
still an agricultural product listed in Annex I to the Treaty. 
5 CAXAMAR had no outstanding debts to the AT or to Social Security in 2016 or 
2018. It paid the tax assessed as due for the 2016 tax year, amounting to 
EUR 82 547.33, on 13 February 2021, and the tax assessed as due for the 2018 tax 
year, amounting to EUR 43 755.29, also on 13 February 2021. 
The essential arguments of the parties in the main proceedings 
6 CAXAMAR argues that the AT erred in its assessment of the facts and its 
interpretation of the legislation. It understands that its activity falls within the 
sectoral scope of the GBER and the Guidelines, and that consequently the CFI is 
applicable to it and it may, therefore, take advantage of the RFAI: the industry 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-23/22 
 
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concerned is cod processing, which is not the processing of an agricultural 
product. 
7 Moreover, it has no outstanding debts to the AT or to Social Security. 
8 For its part, the AT considers that CAXAMAR has unlawfully taken advantage of 
that tax benefit (RFAI), since its activity does not satisfy the eligibility 
requirements for the benefit. The AT therefore carried out a series of 
supplementary tax assessments. In its view, CAXAMAR cannot take advantage of 
the RFAI because the company’s activities do not fall within its sectoral scope. 
Those activities, which consist in processing cod into salted, frozen and desalted 
cod, fall within the processing and marketing of the fishery products sector and 
are excluded from the scope of the Guidelines and the GBER, with which the 
RFAI must comply. Not only are fishery and aquaculture products expressly 
excluded from the scope of the Guidelines, the GBER and the RFAI; both the 
Guidelines and the ministerial order also exclude the ‘agricultural products’ 
referred to in Annex I to the TFEU; in accordance with Article 38 TFEU and the 
list in Annex I to the Treaty, that term also includes fisheries, that is, fish, 
molluscs and crustaceans listed in Chapter 3 of the combined nomenclature. The 
AT contends that, even if the economic activities in question were not excluded, 
the RFAI benefit obtained in the 2016 and 2018 tax years exceeded the maximum 
intensity (35%) approved by the European Commission for regional State aid. 
Lastly, the AT maintains that the company has not demonstrated that, during the 
tax years in which it benefited from the advantage in question, it did not have any 
outstanding debts to the tax authorities or to Social Security, as required under the 
CFI. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 In essence, the point at issue is whether the AT acted correctly when it amended 
the taxable amount for IRC purposes and the corresponding interest on the 
grounds that the activity carried on by CAXAMAR did not fall within the scope of 
the RFAI and therefore the investment did not satisfy the necessary requirements 
in order to benefit from the credits and deductions available under that tax 
advantage. 
10 In other words, the relevant issue is to determine whether the activity carried on 
by CAXAMAR, namely the processing of cod into salted, frozen and desalted 
cod, can be considered an ‘activity of the processing industry’ falling within 
Article 2(b) of Ministerial Order 282/2014 of 30 December 2014 (‘(b) Processing 
industries – divisions 10 to 33’), inasmuch as, under the applicable EU legislation, 
in particular the Guidelines, the GBER, and the rules to which these refer, the 
activity involves the processing of an agricultural product. 
11 In the present case, the taxable amount for IRC purposes has been reduced by 
EUR 72 775.36 and EUR 41 607.67 for the 2016 and 2018 tax years respectively 
CAXAMAR 
 
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in respect of the tax advantages provided for in the RFAI for the investments 
made in those periods. 
12 More specifically, the question is whether or not the investment projects 
undertaken by CAXAMAR in 2016 and 2018 in connection with cod processing 
fall within the scope of the RFAI. 
13 In so far as EU State aid legislation is concerned, the CFI, the regulation of the 
RFAI contained therein, and Ministerial Order No 282/2014 of 30 December 2014 
must be seen as measures to implement and give effect to the principles and rules 
in Articles 107 to 109 TFEU, in the GBER and in the Guidelines and, in that 
context, the ministerial order can only be seen as a measure implementing 
provisions of EU law. Consequently, the AT understands that there is no reason 
for the rule in Article 1 of the ministerial order to prevail over Article 1(3)(c) of 
the GBER so as to exclude the granting of the tax benefit established in the RFAI. 
14 The [Centro de Arbitragem Administrativa (Centre for Administrative 
Arbitration)] has already stated that it must be borne in mind that the list of 
activities provided in Article 2 of the CFI is not exhaustive, since it merely 
provides a purely indicative list of the economic activities to which the investment 
projects apply. 
15 But it is also clear from that article that, in order to be eligible for the benefit, an 
economic activity must also fall within the sectoral scope of the Guidelines for 
2014-2020 and the GBER. Moreover, project eligibility is also subject, in 
particular, to specification of the economic activity codes (CAE) – which the 
legislature left to be addressed in a regulatory instrument – which must have 
regard to the restrictions in Article 1 of Ministerial Order No 282/2014; under 
those restrictions, investment projects for economic activities connected with 
primary agricultural production and the processing and marketing of agricultural 
products listed in Annex I to the TFEU are ineligible for the benefit.