Judgment;Abstract — ECLI:EU:T:2019:652
Date: 2019-09-20
Language of the case: Dutch
Court formation: Sixth Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment
Origin: Belgium

Summary of the Commission’s analysis with regard to the selectivity of the measure in the contested decision 111 In point 5.1.4 of the contested decision, which is devoted to the selectivity of the measure, the Commission submitted first of all that it was not disputed that the Belgian ports did not pay corporate tax. The basis for that absence of payment of corporate tax, according to the Belgian authorities, could have been either Article 180(2) of the CIR or Articles 1 and 2 of the CIR (recital 81 of the contested decision). 112 The Commission then went on to carry out a two-stage analysis, depending on whether Articles 1 and 2 of the CIR constituted the legal basis for the non-payment of corporate tax by the Belgian ports (‘the second assumption’) or whether Article 180(2) of the CIR constituted the legal basis for the non-payment of corporate tax by the Belgian ports (‘the first assumption’). 113 In the first place, in the context of the second assumption, the Commission analysed the Belgian authorities’ argument that Article 180(2) of the CIR merely draws the consequences from the general rules set out in Articles 1 and 2 of the CIR and would therefore not constitute a derogation to the reference system (recitals 82 to 91 of the contested decision). The Commission considered, in that regard, that such an interpretation was essentially based on the assumption that the nature of the activities carried out by the ports would necessarily preclude the possibility of their classification as ‘companies’ for the purposes of the taxation of income (of resident legal persons), whereas they constitute ‘undertakings’ within the meaning of Article 107 TFEU. The Commission considered, on the contrary, that the ports were in principle ‘companies’ for the purposes of taxation of income as regards the bulk of their activities and that they carried out economic activities of a nature to classify them as ‘undertakings’ within the meaning of Article 107 TFEU (recitals 84 and 85 of the contested decision). It noted, in addition, that the assumption on which the Belgian authorities based their reasoning is in contradiction with the official comments on the CIR, with other domestic texts and with official positions adopted by the Belgian Government (recital 86 of the contested decision). 114 Therefore, the Commission stated that it did not concur with the position that, even if Article 180(2) of the CIR were deleted, the ports would not be liable to corporate tax under the general criteria provided for in Articles 1 and 2 of the CIR. For the same reasons, the Commission disputed that the rules relating to tax on legal persons constituted the reference system for the taxation of the ports. In the light of those factors, the Commission considered that the normal application of the general rules of Belgian law results in the ports being subject to corporate tax with respect to the income from their economic activities (recitals 87 to 89 of the contested decision). 115 The Commission stated, moreover, that, even if the national rules in question – or their interpretation by the administration – were such as to result in the non-payment of corporate tax by the Belgian ports, those rules introduce discrimination between ‘undertakings’ engaging in economic activities within the meaning of Article 107 TFEU. Just as in the case of Article 180(2) of the CIR, in the analysis set out below, the Commission considered that those rules, or the Belgian income tax regime as a whole, are therefore the source of advantages granted to certain ‘undertakings’, namely the ports, despite the fact that those undertakings, with regard to the profits generated from ‘economic activities’, are in a comparable situation to that of other undertakings subject to corporate tax (resident legal persons) from the point of view of the objective of taxation of the income of resident legal persons – which is to tax profits. The Commission considered, moreover, that the ports did not conform to ‘particular operating principles which clearly distinguish[ed] them from other economic operators’ subject to corporate tax. In particular, the fact that the ports did not seek to make a profit is not sufficient to consider that they are in a different situation from that of other operators subject to corporate tax, according to the Commission. In that scenario, according to the Commission, the Belgian system would itself be selective (recital 90 of the contested decision). 116 Therefore, according to the Commission, even if Articles 1 and 2 of the CIR constituted the legal basis for non-payment of corporate tax by the Belgian ports, this non-payment would be a measure which is prima facie selective with respect to the economic activities of the ports (recital 91 of the contested decision). 117 In the second place, the Commission analysed the first assumption, which it favoured, that Article 180(2) of the CIR constitutes the legal basis for non-payment of corporate tax by the Belgian ports, as a derogation from the reference framework, composed of Articles 1 and 2 of the CIR (recitals 92 to 107 of the contested decision). 118 In that regard, the Commission considered, first, that the reference system in the present case was constituted by the general tax rules arising from Articles 1 and 2 of the CIR, whereas Article 180(2) of the CIR constitutes a derogation from those general tax rules. It found that Article 1 of the CIR establishes a dual system for the taxation of income for legal persons resident in Belgium: it subjects ‘companies’ to corporate tax and ‘legal persons other than companies’ to tax on legal persons. Article 2 of the CIR comprises the criteria for the definition of ‘companies’ and therefore the determination of the legal persons to be subject to corporate tax and, by elimination, those whose income will be subject to tax on legal persons. Moreover, Article 179 of the CIR confirms that taxpayers subject to corporate tax are resident companies. According to the Commission, Article 180(2) of the CIR exempts the ports unconditionally from corporate tax, without applying the general criteria for allocation between corporate tax and tax on legal persons defined in Articles 1 and 2, in other words without taking into account the status of ‘companies’ (or otherwise) of those ports (recitals 93 and 94 of the contested decision). 119 Secondly, the Commission took the view that that derogation from the reference system introduced differentiation between operators which are in a comparable legal or factual situation in terms of the objective pursued by the reference tax system. In fact, whichever reference system is adopted (corporate tax or taxation of the income of resident legal persons in general), the objective of income tax is to tax income, an objective in relation to which all undertakings are in the same factual and legal situation as regards the profits from their economic activities. According to the Commission, the fact that the ports do not pursue a profit motive or that they concentrate less on a short-term return on investment does not in any way alter this assessment. The fact that the Belgian ports are owned and controlled by public authorities or that they engage in particular in non-economic activities, such as public authority tasks, does not imply that they are in a different legal and factual situation with respect to the application of corporate tax to the revenue generated by their economic activities (recitals 97 and 98 of the contested decision). 120 The Commission concluded from this, therefore, that the measure was prima facie selective regarding the economic activities of the ports (recital 99 of the contested decision). 121 In the third place, irrespective of the assumption made, the Commission went on to examine a possible justification for the measure by the nature or general scheme of the tax system. It recalled, first of all, that the conformity of a measure with national law could, as such, constitute justification by the scheme of the system unless it had been shown that that justification resulted from characteristics inherent in the reference tax system. Moreover, it observed that the absence of discrimination in national law did not prejudge the absence of selectivity within the meaning of Article 107(1) TFEU (recitals 101 and 102 of the contested decision). 122 Likewise, according to the Commission, since the decisive criterion for liability to corporate tax or to tax on legal persons is the act of engaging in a ‘business’ or ‘transactions of a profit-making nature’ by the entity concerned (see Article 2 of the CIR), the arguments to the effect that the ports are exempt from corporate tax because they do not distribute their profit but reinvest it, that they pursue an objective beyond their individual interest, that they do not have the statutory objective of the pursuit of profit, that they are public authorities and that they carry out tasks in the general interest are not sufficient to justify more favourable tax treatment than that of other resident companies in relation to the guiding principles of the tax system. In addition, the alleged fact that that the ports’ resources do not always cover their costs or the fact that certain costs not inherent in the object of an undertaking are not deductible from corporate tax, pursuant to Article 49 of the CIR, is not said to provide any justification either for exempting the ports from corporate tax. Furthermore, the fact that the exemption of the ports from corporate tax results from a general principle of law, or even from the Belgian Constitution itself, assuming this fact to have been established, is not as such necessarily of a nature to justify that exemption through the nature or general scheme of the system, in so far as any considerations taken into account by the authors of the Constitution or the national courts may be external to the smooth operation of the tax system or its guiding principles (recitals 103 to 106 of the contested decision). 123 Finally, according to the Commission, the arguments of the Belgian authorities and interested parties relating to the criteria developed by national case-law to assess whether a legal person is a ‘company’ within the meaning of Articles 1 and 2 of the CIR (in particular absence of industrial and commercial methods) are ineffective in demonstrating the justification for the measure by the logic inherent in the tax system, in so far as they aim in reality to prove that the ports are not ‘companies’, in which case the absence of liability to corporate tax would be selective due to the very choice of the criteria used to determine the limits of the reference system and not due to a derogation from that reference system which could possibly be justified (recital 107 of the contested decision). Reminder of the relevant case-law 124 Under Article 107(1) TFEU, ‘save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’. 125 According to settled case-law, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between the Member States. Thirdly, it must confer a selective advantage on the recipient. Fourthly, it must distort or threaten to distort competition (judgments of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53; of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 43; and of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 79). 126 So far as concerns the condition relating to the selectivity of the advantage, which is a constituent factor in the concept of ‘State aid’, within the meaning of Article 107(1) TFEU, it is clear from equally settled case-law that the assessment of that condition requires a determination whether, under a particular legal regime, the national measure at issue is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which accordingly suffer different treatment that can, in essence, be classified as discriminatory (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54 and the case-law cited). 127 Further, where the measure at issue is conceived as an aid scheme and not as individual aid, it is for the Commission to establish that that measure, although it confers an advantage of general application, confers the benefit of that advantage exclusively on certain undertakings or certain sectors of activity (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 55 and the case-law cited). 128 The examination of the selectivity of a measure, in particular in matters of taxation, therefore seeks to establish whether it favours ‘certain undertakings or the production of certain goods’ within the meaning of Article 107(1) TFEU or whether, on the contrary, it is a general measure of tax policy which applies without distinction to all undertakings on national territory (see, to that effect, judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 35; of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 73; and of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 18). 129 In that context, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the common or ‘normal’ tax regime applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that common regime in so far as it differentiates between operators who, in the light of the objective pursued by that common tax regime, are in a comparable factual and legal situation (see judgment of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 36 and the case-law cited). 130 The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general scheme of the system of which the measures form part (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 58 and the case-law cited). 131 The examination of the selectivity condition therefore implies, in principle, the determination, first, of the reference framework within which the measure concerned falls, that determination being of greater importance in the case of tax measures, since the very existence of an advantage may be established only when compared with ‘normal’ taxation (see judgment of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 85 and the case-law cited). 132 However, the classification of a tax system as ‘selective’ is not conditional upon that system being designed in such a way that undertakings which might enjoy a selective advantage are, in general, subject to the same tax burden as other undertakings but benefit from derogating provisions, so that the selective advantage may be identified as being the difference between the normal tax burden and that borne by those former undertakings (judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 91, and of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 87). 133 Such an interpretation of the selectivity criterion would require that, in order for a tax system to be classifiable as ‘selective’, it must be designed in accordance with a certain regulatory technique; the consequence of this would be that national tax rules fall from the outset outside the scope of control of State aid merely because they were adopted under a different regulatory technique although, by adjusting and combining various tax rules, they produce the same effects in law or in fact. It therefore conflicts with settled case-law that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects, and thus independently of the techniques used (see judgment of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 88 and the case-law cited). 134 However, it also follows from that case-law that while, for the purposes of establishing the selectivity of a tax measure, the regulatory technique used is not decisive, with the result that it is not always necessary for it to derogate from a common tax system, the fact that it is a derogation as a result of the use of that regulatory technique is relevant for those purposes where it follows that two categories of operators are distinguished and a priori treated differently, namely those covered by the derogation and those which are covered by the ordinary taxation regime, even though those two categories are in a comparable situation with regard to the objective pursued by that system (judgments of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 77; of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 90; and of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 33). 135 It is in the light of those considerations that the various complaints made by the applicants and the Kingdom of Belgium should be examined. 136 In that regard, the Court considers it appropriate to examine the selectivity of the measure in question – namely the exemption from corporate tax from which the ports benefit under Article 180(2) of the CIR – in two stages, as the Commission did in the contested decision, depending on whether Article 180(2) of the CIR constitutes a derogation from the reference framework, formed of Articles 1 and 2 of the CIR (see paragraphs 117 to 120 above) or whether it forms an integral part of the reference framework (see paragraphs 113 to 116 above). The selectivity of the measure at issue in the event that Article 180(2) of the CIR constitutes a derogation from the reference framework – The complaint alleging that the reference framework has been identified incorrectly 137 In the context of their second plea, the applicants, supported by the Kingdom of Belgium, submit that the Commission erred in concluding that the measure at issue was selective by taking the view, first, that corporate tax was the reference system for entities such as the applicants and, secondly, that the liability of the ports to tax on legal persons constituted a derogation from the reference system, leading to a difference in the treatment of operators who, in the light of the objective pursued by the tax system concerned, were in a comparable factual and legal situation. 138 Thus, according to the applicants, the exemption from corporate tax granted to the Belgian ports under Article 180(2) of the CIR is merely a result of applying the general rules of Articles 1 and 2 of the CIR. The applicants also submit that the official comments on the CIR, on which the Commission relied in the contested decision, state solely that legal persons who are unconditionally exempted from corporate tax, in accordance with Article 180(2) of the CIR, may, in principle, be regarded as taxpayers subject to corporate tax. Therefore, it cannot be inferred from those comments that the deletion of Article 180(2) of the CIR would automatically result in the ports specifically being liable to corporate tax. Liability to tax on legal persons cannot in itself be regarded as a derogation from the reference framework. 139 According to the Kingdom of Belgium, entities which are liable to tax on legal persons are characterised, first, by the fact that they are not engaged in a business or transactions of a profit-making nature and, secondly, by the fact that they pursue an aim which goes beyond their personal interest or the interest of their shareholders. With regard to the port authorities, even though they pursue economic activities marginally, the absence of a profit-making objective and the fact that their tasks are of general interest justifies their exemption from corporate tax. By establishing an automatic connection between economic activity and corporate tax, the Commission is said to have misinterpreted the concept of a company under Belgian law, which is characterised by the objective of making a profit, that is to say the act giving partners a direct or indirect capital benefit. 140 The Commission disputes those arguments. 141 In that regard, it should be noted at the outset that, contrary to the applicants’ submissions, in the contested decision the Commission did not take the view that the reference system was constituted solely by corporate tax, from which other tax systems derogate. It is clear from recitals 83 and 93 of the contested decision that the Commission considered that the reference system was composed, in the present case, of the general tax rules arising from Articles 1 and 2 of the CIR, which provide that ‘companies’ are subject to corporate tax, whereas resident legal persons other than ‘companies’ are subject to tax on legal persons. The Commission examined, nevertheless, whether, in accordance with those general rules, the ports, in principle, fell within the scope of the concept of a ‘company’, referred to in Article 2(5) of the CIR, with the result that Article 180(2) of the CIR had to be interpreted as a derogation from the reference system in their favour or whether, in accordance with those general rules, they naturally fell within the scope of tax on legal persons, with the result that the effect of Article 180(2) of the CIR would be purely declaratory. 142 The applicants’ argument that the Commission defined the reference system incorrectly as being corporate tax is therefore based on an incorrect reading of the contested decision and must, therefore, be rejected. 143 Furthermore, it should be noted that the approach advocated by the applicants and the Kingdom of Belgium, in accordance with which Article 180(2) of the CIR does not constitute a derogation from the reference framework, corresponds to the second scenario that has been examined by the Commission, in recitals 82 to 97 of the contested decision, in order to establish the selectivity of the measure at issue (see paragraphs 113 to 116 above). 144 In order to reject that approach, the Commission essentially relied on the fact that the ports were in principle ‘companies’ for the purposes of taxation of income on account of the bulk of their activities, which were economic activities. It therefore considered that, in the absence of Article 180(2) of the CIR, the ports would usually be liable to corporate tax and rejected the idea that, under a ‘normal’ application of Articles 1 and 2 of the CIR, the ports would be liable to tax on legal persons and not to corporate tax. 145 It must be held that that reasoning is not vitiated by any errors of assessment. 146 Article 1 of the CIR defines corporate tax as ‘tax on the total income of resident companies’, whereas tax on legal persons is defined as ‘tax on the income of Belgian legal persons other than companies’, without further clarification. 147 Moreover, Article 2(5) of the CIR which, as the Commission acknowledges in the contested decision, also forms part of the reference framework, defines what is meant by ‘company’ and ‘resident company’. ‘Company’ is thus defined in Article 2(5)(a) of the CIR as ‘any company, association, establishment or body of any kind, duly constituted, which has legal personality and engages in a business or transactions of a profit-making nature’. ‘Resident company’ is defined in Article 2(5)(b) of the CIR as ‘any company which has its registered office, its principal place of business or its centre of management or administration in Belgium and which is not excluded from the scope of corporate tax’. 148 When questioned in that regard by way of a measure of organisation of procedure and at the hearing, the parties have acknowledged that the decisive criterion in order to determine whether a resident legal person must be liable to pay corporate tax or tax on legal persons lies in whether or not that entity engages in a ‘business or transactions of a profit-making nature’ within the meaning of Article 2(5)(a) of the CIR. 149 It is necessary to examine, therefore, whether the ports engage in a ‘business or transactions of a profit-making nature’ within the meaning of Article 2(5)(a) of the CIR and whether, in principle, they fall within the scope of the definition of a ‘company’ laid down in that article. 150 In that regard, as the applicants have explained in response to a measure of organisation of procedure, the act of engaging in ‘business of a profit-making nature’ covers, according to comment 179/10 by the Belgian tax authority, ‘the operation of an industrial, commercial or agricultural undertaking in any form’, the profits from which would constitute professional income subject to tax on natural persons on that basis, if that operation was carried out by a natural person or a company which does not have legal personality. The expression ‘to engage in transactions of a profit-making nature’ covers both ‘profit-making occupations’, in the sense of an occupation with a profit motive, and occupations of a profit-making nature, but not for profit, which are characterised by a permanent professional activity consisting of either the repetition, which is sufficiently frequent to constitute an ‘occupation’, of operations of an industrial, commercial or agricultural nature, or the use of industrial or commercial methods. Moreover, according to comment 182/10 on the CIR, a legal person uses industrial and commercial methods where that person works with an objective, an organisation or an economic strategy and uses management methods that are essentially inspired by notions of cost, income and profitability. 151 Therefore, although, as the applicants and the Kingdom of Belgium submit, the notions of ‘economic activity’ and ‘transactions of a profit-making nature’ do not fully overlap, in the present case, in the light of their activities set out above (see paragraph 49 above), the ports are engaged in transactions of a profit-making nature, within the meaning of Article 2(5)(a) of the CIR. 152 According to the Kingdom of Belgium, nevertheless, a ‘company’, unlike any other resident legal person, is characterised primarily by the objective of making a profit. The Kingdom of Belgium refers in that regard to Article 1 of the Belgian Code des sociétés (Companies Code), in accordance with which ‘a company is established by a contract under which two or more persons come together to carry out one or more specific activities and with the aim of giving partners a direct or indirect capital benefit’. 153 However, it should be noted, as the Commission has done, that it is not clear from Articles 1 and 2 of the CIR – which form the relevant reference framework in the present case – that the objective of making a profit is a decisive distinguishing criterion in that regard, since Article 2(5)(a) of the CIR makes reference not to the objective of making a profit, but to the act of engaging in a ‘business or transactions of a profit-making nature’. 154 When questioned on that issue by way of a measure of organisation of procedure, the applicants and the Kingdom of Belgium acknowledged that the notion of a business or transactions ‘of a profit-making nature’, referred to in Article 2(5)(a) of the CIR, did not necessarily overlap with a ‘profit-making objective’. That interpretation is also confirmed by comment 179/11 by the Belgian tax authority which interprets that provision, in accordance with which the expression ‘to engage in transactions of a profit-making nature’ also covers transactions of a profit-making nature which do not have the objective of making a profit, which are comparable to a permanent professional activity, since they consist of either the repetition, which is sufficiently frequent to constitute an occupation, of operations of an industrial, commercial or agricultural nature, or the use of industrial or commercial methods. 155 Moreover, it is clear from recital 103 of the contested decision that other undertakings also reinvest their profit, pursue objectives beyond their individual interest or generate effects on the economy beyond their individual interest without being exempted from corporate tax for that reason. In footnote 83 of the contested decision, reference is therefore made to the fact that certain intermunicipal associations, which also carry out tasks of general interest and were set up for a general interest purpose, have recently been made subject to corporate tax in Belgium, which has been acknowledged by the applicants and the Kingdom of Belgium in their responses to measures of organisation of procedure. It must be held, therefore, that the performance of tasks of general interest, the statutory objective of not seeking to make profits and the publicly owned status of partners are not the decisive criteria which form the basis of the tax scheme at issue. 156 Contrary to the Kingdom of Belgium’s submissions, therefore, it is not clear from the very logic of Articles 1 and 2 of the CIR that Article 180(2) of the CIR has no legal significance and is purely declaratory. However, as the Commission submits, it is clear from the logic of those provisions that resident companies which engage in a business or transactions of a profit-making nature must, in principle, be liable to corporate tax. Article 180(2) of the CIR therefore establishes an unconditional exemption from corporate tax for the ports referred to therein, in so far as those ports are indeed engaged in transactions of a profit-making nature, within the meaning of Article 2(5)(a) of the CIR. Consequently, Article 180(2) of the CIR is not an integral part and is not governed by the logic of the reference framework, as the applicants and the Kingdom of Belgium have tried to point out, rather it constitutes a derogation from that framework. 157 That conclusion is supported by the various pieces of evidence which have been convincingly adduced by the Commission in the contested decision and in the proceedings before the Court such as, inter alia, the official comments on the CIR made by the Belgian tax authority and the official positions of the Belgian authorities given in tempore non suspecto, which perceive the ports as falling, in principle, within the scope of the definition of a ‘company’ as laid down in Article 2(5) of the CIR. 158 Thus, first, it is clear from recital 86 of the contested decision that, according to the official comments of the Belgian tax authority, the Belgian ports are public undertakings which, in the absence of the unconditional exemption provided for in Article 180(2) of the CIR, would be subject to corporate tax pursuant to Articles 1 and 2 of the CIR. Comment 179/2, cited in footnote 71 of the contested decision, states, for example, that ‘although they may in principle be regarded as taxpayers subject to corporate tax, the following are excluded from corporate tax on the basis of Articles 180 to 182 of the CIR: 1. legal persons who are “unconditionally” excluded from corporate tax’. 159 Secondly, it is also clear from recital 86 of the contested decision that the Belgian Government itself took the view, before the Cour constitutionnelle (Constitutional Court), that the ports, among other companies and legal persons referred to in Article 180 and Article 220(2) of the CIR, were in fact legal persons who were engaged in a business or transactions of a profit-making nature within the meaning of Article 2 of the CIR. Furthermore, before the Lower House of the Belgian Parliament, the Deputy Prime Minister and Minister for Finance and Foreign Trade also took the view that the ports were public undertakings which, in the absence of the unconditional exemption provided for in Article 180 of the CIR, would be subject to corporate tax pursuant to Articles 1, 2 and 179 of the CIR. 160 Thirdly, it follows from the law adopted by the Belgian Federal Parliament on 29 May 2018 – ‘Loi fixant les conditions du passage à l’assujettissement à l’impôt des sociétés d’entreprises portuaires’ (Law establishing the conditions for the transition to the corporate tax liability of port undertakings) (Moniteur Belge of 11 June 2018, p. 48409) – that, in order to comply with the contested decision and to remove the unconditional exemption from corporate tax from which the ports benefit, which is classified as State aid by the Commission, under Article 2 of that law, ‘point 2 of the first subparagraph of Article 180 of the [CIR] is repealed’. It must be stated, therefore, as the Commission did at the hearing, that, according to the Belgian legislature, the mere removal of the exemption provided for in Article 180(2) of the CIR is sufficient in order for the ports to incur liability to corporate tax, which means that, without that exemption, the ports will be naturally or automatically liable to corporate tax. 161 Fourthly, it is clear from the wording and the logic of Articles 180 to 182 of the CIR that Article 180 establishes an unconditional exemption from corporate tax, in so far as, in contrast to Articles 181 and 182, it does not make the exemption from corporate tax for the entities referred to therein subject to any other conditions. In accordance with Article 181 of the CIR, ‘the following shall not be liable to corporate tax: not-for-profit associations and other legal persons who do not seek to make a profit’ and who perform certain activities of general interest which are listed in that provision, such as family support or education. Under Article 182 of the CIR, ‘with respect to not-for-profit associations and other legal persons who do not seek to make a profit, the following shall not be regarded as transactions of a profit-making nature: (1) one-off or exceptional transactions; (2) transactions which consist in the investment of funds collected in the performance of their statutory tasks; (3) transactions which constitute an activity that contains industrial, commercial or agricultural operations only on an ancillary basis or does not use industrial or commercial methods’. Article 180 of the CIR, however, provides merely that the entities listed therein ‘shall not be liable to corporate tax’, without any other condition relating to absence of a profit-making objective or the ancillary nature of transactions of a profit-making nature carried out by those entities. 162 That logic is replicated in Article 220 of the CIR, which provides that ‘the following shall be liable to tax on legal persons: (1) the State, the Communities, the Regions, the provinces, the metropolitan districts, the federations of municipalities, the municipalities, public intermunicipal social action centres, … public cultural establishments, emergency areas, police districts and the polders and water boards; (2) legal persons who, under Article 180, are not liable to corporate tax; (3) legal persons who have their registered office, their principal place of business or their centre of management or administration in Belgium and who are not engaged in a business or transactions of a profit-making nature or who are not liable to corporate tax under Articles 181 and 182’. Short of rendering Article 220(2) of the CIR ineffective and considering that that provision, like Article 180(2) of the CIR, is purely declaratory, that provision also states that, in the absence of the exemption provided for in Article 180(2) of the CIR, the ports would, in principle, be liable to corporate tax, unless they can demonstrate that they do not engage in a business or transactions of a profit-making nature or that they satisfy the other conditions laid down in Articles 181 and 182 of the CIR. 163 Accordingly, in the light of all of those considerations, it must be held that the Commission was correct to take the view in the contested decision that the reference framework for the purposes of examining selectivity was constituted, in the present case, by Articles 1 and 2 of the CIR, from which Article 180(2) of the CIR constitutes a derogation, in so far as that latter provision exempts the ports unconditionally from corporate tax, even if they engage in a business or transactions of a profit-making nature, within the meaning of Article 2(5)(a) of the CIR. 164 Therefore, the first complaint must be rejected as unfounded. – The complaint alleging that the ports and entities which are liable to corporate tax are not comparable 165 The applicants submit that the port authorities are not in the same situation as other entities which are liable to corporate tax, contrary to the Commission’s findings in recital 90 of the contested decision. According to the applicants, the port authorities are subject to legal and factual arrangements that are different from other entities and are an extension of public authorities, which are entrusted with performing public law tasks. Moreover, the port authorities are unable freely to use the funds available to them in order to optimise their activities, which, in principle, other entities which are liable to corporate tax, such as not-for-profit associations, are able to do when they engage in transactions of a profit-making nature. 166 According to the applicants, entities which are liable to tax on legal persons are characterised, on the one hand, by the fact that they are not engaged in a business or transactions of a profit-making nature or, on the other, by the fact that they pursue a wider objective which goes beyond their own interest or the interest of their shareholders. Contrary to the Commission’s claims, the legal form adopted by the ports is not decisive and the absence of a profit-making objective is therefore a significant element to distinguish corporate tax from tax on legal persons. Companies with a social purpose whose objective is not to distribute profits may be liable to tax on legal persons. 167 Furthermore, the applicants submit that they do not use industrial and commercial methods to carry out their activities, in accordance with Article 182(3) of the CIR. In that regard, they state that account must be taken of the fact that, first, the majority of the income received by the ports is not determined by the principles of supply and demand; secondly, their payments are remunerative in nature and, in principle, seek only to cover the costs of certain services, without seeking to maximise profits; thirdly, they do not choose the port that they must manage and cannot restrict their services to those users who are most profitable; fourthly, their income is not necessarily used to increase their efficiency or their own performance; fifthly, their investments are guided by the long-term macroeconomic outlook and not solely by short or medium-term microeconomic performance; and, sixthly, only they have the competence to exercise the powers relating to the administration of a port, which are not transferable. The absence of a profit-making objective, together with the fact that they do not use industrial and commercial methods, therefore justifies, in the applicants’ view, the ports being liable to tax on legal persons rather than corporate tax. 168 The Kingdom of Belgium also submits, relying on the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550), that, in the light of the objectives that are intrinsic to the corporate tax system, the ports are not in a comparable factual and legal situation to that of profit-making companies liable to that tax. It observes, in that regard, that nowhere in the Decree on seaport policy and management of 2 March 1999 does it indicate that the ports must seek to make a profit. 169 The Commission disputes those arguments. 170 In that regard, it should be recalled that, in accordance with the case-law, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the common or ‘normal’ tax regime applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue derogates from that common regime in so far as it differentiates between operators who, in the light of the objective pursued by that common tax regime, are in a comparable factual and legal situation (judgments of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49; of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57; and of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 36). 171 It is necessary, therefore, to determine whether a tax exemption such as that provided for in Article 180(2) of the CIR is such as to favour certain undertakings over others which are in a comparable factual and legal situation in the light of the objective pursued by the common regime. 172 In that regard, the Commission considered, in recitals 97 and 98 of the contested decision, that, whichever reference system was adopted (corporate tax or taxation of the income of resident legal persons in general), the objective of income tax was to tax income, an objective in relation to which all undertakings were in the same factual and legal situation as regards the profits from their economic activities. 173 However, according to the Kingdom of Belgium, the ports are not in a comparable situation to companies that are liable to corporate tax since, even if they are engaged in transactions of a profit-making nature, within the meaning of Article 2(5) of the CIR, they have certain specific features, such as the fact that their activities do not have a profit-making objective, the way in which they operate, their legal form or even the absence of competition with the private sector, which distinguish them from such companies. 174 In that regard, it should be pointed out that, contrary to the Commission’s submissions, it cannot be considered that the ports must necessarily have the same characteristics as cooperatives, which were at issue in the case which gave rise to the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550), such as the principle of the primacy of the individual or the ‘one man, one vote’ rule, so that they can be differentiated from the companies liable to corporate tax in the present case. 175 In accordance with the case-law, it is for the Commission to determine that the measure at issue is a priori selective (see, to that effect, judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 62), which involves determining in the present case whether, despite certain characteristics which are inherent to them, the ports are in a comparable factual and legal situation to that of companies which are liable to corporate tax, in the light of the objectives of the reference framework. 176 Nevertheless, it must be observed that, to that end, the distinguishing criterion used in order to assess whether the ports and companies which are liable to corporate tax are in a comparable situation must be based on characteristics that are relevant and consistent in relation to the objectives of the reference framework (see, to that effect, judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraphs 52 to 56). 177 In the present case, none of the characteristics of ports that are invoked by the applicants and the Kingdom of Belgium – even if established – are relevant and consistent in relation to the objective of income tax, which is, as its name suggests, to tax the income of resident legal persons and, with regard in particular to ‘companies’ which engage in a business or transactions of a profit-making nature, to tax the profits they make from those activities. 178 First, as regards the fact that the ports are not said to pursue a profit motive and they reinvest all of their profits into the port infrastructure with a view to performing their tasks of general interest, it should be noted, as the Commission has done, that the objectives of general interest invoked in the present case relate to the ports’ economic activities and not their non-economic activities of general interest (see paragraph 53 above). Those objectives essentially consist in promoting economic development and employment of the applicants and the Vlaams gewest (Flemish Region). It should be noted, as the Commission did in recital 103 of the contested decision, that other undertakings also reinvest their profit, pursue objectives beyond their individual interest or generate effects on the economy beyond their individual interest without being exempted from corporate tax for those reasons, which is not disputed by the applicants or the Kingdom of Belgium. 179 Therefore, even if the absence of a profit-making objective is an essential characteristic of ports and a distinguishing criterion based on that characteristic might, together with other factors such as those mentioned in Article 182 of the CIR, be relevant in order to establish whether a resident legal person must be liable to corporate tax or tax on legal persons, the fact remains that, in order to assess whether the situations of ports and companies which are liable to corporate tax are comparable, that criterion alone is neither relevant nor consistent in the light of the objective of income tax, covered by the scheme at issue. 180 In that regard, neither the applicants nor the Kingdom of Belgium can validly rely on the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal, Belgium) of 21 June 2006 – Oxfam Magasins du monde, to which reference was made at the hearing and by the Kingdom of Belgium in its written observations. In that case, the cour d’appel de Bruxelles (Brussels Court of Appeal) held that the not-for-profit association Oxfam had to be liable to pay tax on legal persons since its activities of selling fair trade products at fairs or markets were not transactions of a profit-making nature since they did not seek to use industrial or commercial methods, within the meaning of Article 182(3) of the CIR. 181 Article 182(3) of the CIR provides that, ‘with respect to not-for-profit associations and other legal persons who do not seek to make a profit, the following shall not be regarded as transactions of a profit-making nature … (3) transactions which constitute an activity that contains industrial, commercial or agricultural operations only on an ancillary basis or does not use industrial or commercial methods’. That article therefore provides for two separate situations in which the activities of legal persons which do not pursue a profit motive are presumed not to constitute transactions of a profit-making nature, within the meaning of Article 2(5) of the CIR, namely, first, the act of engaging in industrial commercial or agricultural operations as an ancillary activity and, secondly, the act of not using industrial or commercial methods. As the Commission has rightly argued, the case which gave rise to the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 21 June 2006 – Oxfam Magasins du monde, concerned only the second situation, namely the association’s use of industrial or commercial methods. 182 In that regard, it should be noted that, according to comment 182/10 on the CIR, a legal person uses industrial and commercial methods where that person works with an objective, an organisation or an economic strategy and uses management methods that are essentially inspired by notions of cost, income and profitability. 183 As far as the applicants are concerned, as the Commission observed at the hearing, the view cannot be taken that they do not use industrial or commercial methods, within the meaning of Article 182(3) of the CIR, like Oxfam in the case cited in paragraph 180 above. As the Commission recalled at the hearing, the ports develop a business plan, have a structured company policy and also have an HR department. Even if, as the applicants submit, the payments they receive are intended only to cover the costs of certain services, without providing any profit margin, it follows from the actual wording of the Decree on seaport policy and management of 2 March 1999, mentioned by the Commission in recital 46 of the contested decision, that their activities involve the use of industrial or commercial methods. Finally, there is nothing to suggest that their activities contain industrial or commercial operations only on an ancillary basis, within the meaning of that provision, with the result that they also do not fall within the scope of the first situation referred to in Article 182(3) of the CIR. 184 In any event, even if the ports do not pursue a profit motive, the exemption from which they benefit in the present case is based not on Article 182(3) of the CIR, but on Article 180(2) of the CIR, and there is nothing in the file to suggest that the Belgian legislature had carried out a specific assessment of the conditions set out in Article 182(3) of the CIR in respect of the ports. On the contrary, it is clear from paragraphs 156 to 163 above that, without that exemption, they should normally be liable to corporate tax, in accordance with the criteria laid down in Articles 1 and 2 of the CIR. 185 Secondly, as regards the distinguishing criterion based on the form or the legal status of ports, it should be noted, first, that, according to comment 179/16 by the Belgian tax authority, cited in recital 86 of the contested decision, the majority of the Belgian ports should, by virtue of their legal form (SA, SPRL or autonomous municipal authority), also in principle be liable to corporate tax, given that, as a general rule, they engage in either an industrial or commercial business of some kind, or a profit-making occupation, or both at once, and all the profits they make must be considered as resulting from that activity. Secondly, it is clear from recital 103 of the contested decision – without this having been disputed by the parities – that entities which are not public authorities, (such as not-for-profit associations), may be subject to tax on legal persons, which means that the fact of belonging to the public sphere is no longer a relevant criterion in relation to the national rules. Moreover, those associations, in spite of their non-profit-oriented statutory objective, may be subject to corporate tax pursuant to the general criteria if they engage in a business activity or carry out transactions of a profit-making nature. 186 It should be observed, furthermore, in that regard, as the Commission did in recital 98 of the contested decision, that, in accordance with the case-law, a tax exemption accorded on account of the undertaking’s legal form and the sectors in which that undertaking carries on its activities, which results from the legislature’s objective of favouring organisations regarded as socially deserving is, in general, considered to be selective (see, to that effect, judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraphs 136 to 138). 187 Thirdly, the Kingdom of Belgium’s argument, put forward for the first time in response to a measure of organisation of procedure, cannot be accepted either. The Kingdom of Belgium argued that the Belgian legislature could, in view of the regulatory framework organising the ports in the various regions of the country, have legitimately considered that, on the basis of their rules, the ports were not engaged in a business or transactions of a profit-making nature that are in competition with the private sector, which would have justified them being liable, as a whole, to tax on legal persons. 188 It is apparent from all of the evidence adduced by the Commission during the administrative procedure and before the Court that, in the absence of Article 180(2) of the CIR, the ports should, in principle, be liable to corporate tax (see paragraphs 156 to 163 above). Thus, in so far as they engage in a business or transactions of a profit-making nature, within the meaning of Article 2(5) of the CIR, they are in a comparable factual and legal situation to that of companies which are liable to corporate tax as regards the profits they make from those activities and the exemption from which they benefit under Article 180(2) of the CIR constitutes a difference in treatment which may, in essence, be classified as discriminatory (see the case-law cited in paragraph 126 above). 189 In that regard, the Kingdom of Belgium nevertheless relies on judgment No 151/2016 of the Belgian Cour constitutionnelle (Constitutional Court) of 1 December 2016 which recognised the legitimacy of the legislature’s choice to continue to make the ports covered by Article 180(2) of the CIR liable to tax on legal persons. In that judgment, the Cour constitutionnelle (Constitutional Court), in proceedings brought by the intermunicipal associations which had recently been made subject to corporate tax, held as follows: ‘Unlike intermunicipal associations and other cooperation structures and project associations which may cover a wide range of activities that could compete with private undertakings, the specific public economic operators covered by Article 180(2) to (13) of the [CIR] are engaged in an activity which is not in competition with private undertakings or which is a matter of specific public interest. The legislature was entitled to take the view that they should therefore be the subject of special tax treatment. The difference in treatment is not without reasonable justification.’ 190 However, as the Commission submitted in recital 102 of the contested decision, judgment No 151/2016 of the Belgian Cour constitutionnelle (Constitutional Court) of 1 December 2016 does not concern the exemption from corporate tax in favour of the ports in relation to State aid, but the assessment of the liability to corporate tax of intermunicipal associations, cooperation structures and project associations, in relation to the principles of equality and non-discrimination. The absence of discrimination in national law does not necessarily prejudge the absence of selectivity within the meaning of Article 107(1) TFEU. 191 In any event, even if the argument put forward last by the Kingdom of Belgium (see paragraph 187 above) could be accepted, that would mean that the Belgian tax system is designed to ensure that the legislature may, in a discretionary manner, consider that certain entities do not fall within the scope of corporate tax, even though they are in principle ‘companies’ engaged in a business or transactions of a profit-making nature, within the meaning of Article 2(5) of the CIR. According to the case-law, if the competent authorities have a broad discretion to determine the beneficiaries or the conditions under which the financial assistance is provided on the basis of criteria unrelated to the tax system, such as maintaining employment or the absence of competition with the private sector, the exercise of that discretion must then be regarded as favouring ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued, are in a comparable factual and legal situation (see, to that effect, judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 27 and the case-law cited). 192 It must be concluded, therefore, that the Commission was right to find, in recitals 97 to 99 of the contested decision, that the measure at issue was prima facie selective, in so far as it constituted a derogation from the reference framework, consisting of Articles 1 and 2 of the CIR, and it introduced a differentiation between the ports and companies which are liable to corporate tax, even though, in the light of the objective of that reference framework, they are in a comparable factual and legal situation. The selectivity of the measure if Article 180(2) of the CIR does not formally constitute a derogation from the reference framework 193 In the alternative, it is necessary to examine the second assumption made by the Commission in the contested decision in order to establish that the measure at issue is selective. According to that assumption, Articles 1 and 2 of the CIR constitute the legal basis for the non-payment of corporate tax by the ports in that Article 180(2) of the CIR does not formally constitute a derogation from the reference framework (see paragraphs 115 and 116 above). 194 In that regard, even if, as the applicants and the Kingdom of Belgium submit, Article 180(2) of the CIR does not constitute a derogation from the reference framework, in the sense that tax on legal persons is the relevant reference framework for entities, such as the applicants, it should be noted, as the Commission did in recital 90 of the contested decision, that the Belgian income tax regime is itself selective, in so far as it leads to ‘certain undertakings’ being favoured, namely the ports, even though they are in a comparable factual and legal situation to other undertakings which are subject to corporate tax in respect of the taxation of the profits which they derive from their economic activities (see, to that effect, judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 101 to 107, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraphs 76 to 79). 195 It should be recalled that, in accordance with the case-law, it is not always necessary that a measure derogates from a common tax system in order for it to be established that it is selective, even if it is, in principle, a relevant criterion in that regard (see the case-law cited in paragraphs 132 to 134 above). 196 According to the settled case-law, however, the fact that only taxpayers satisfying the conditions for the application of a measure can benefit from the measure cannot, in itself, turn it into a selective measure (judgments of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 59, and of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 24). 197 That is why, where it is not possible to identify a measure that derogates from a common tax regime, the criteria forming the basis of assessment which are adopted by that regime must, in order to be capable of being recognised as conferring selective advantages, be such as to characterise the recipient undertakings, by virtue of the properties which are specific to them, as a privileged category, thus permitting such a regime to be described as favouring ‘certain’ undertakings or the production of ‘certain’ goods within the meaning of Article 107(1) TFEU (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 104). 198 However, in the present case, as the Commission observed at the hearing, even assuming that Article 180(2) of the CIR does not derogate from the reference framework, consisting of Articles 1 and 2 of the CIR, that provision identifies by name certain entities, in particular the ports, and thus exempts them unconditionally from corporate tax, even though, with regard to the profits generated from ‘economic activities’, they are in a comparable situation to that of other undertakings (resident legal persons) which are liable to corporate tax. The ports are therefore identified as a category favoured by those provisions on account of their specific characteristics and the sector of activity to which they belong. 199 Accordingly the Commission was rightly able to take the view in recitals 90 and 91 of the contested decision that, even if Articles 1 and 2 of the CIR constituted the legal basis for non-payment of corporate tax by the ports, that non-payment is a measure which is a priori selective with regard to the economic activities of the ports. 200 It must also be ascertained whether, in accordance with the case-law recalled in paragraph 130 above, the measure at issue, although it is prima facie selective and irrespective of the assumption made in that regard in respect of the reference framework, may nevertheless be justified by the nature or the logic of the tax system of which it forms part, as the applicants and the Kingdom of Belgium submit. The complaint alleging that the measure is justified by the nature or the logic of the tax system 201 In the context of their third plea, the applicants submit, in the alternative, that, even if the liability of the port authorities to tax on legal persons constitutes a derogation from the reference system, it may be justified by the nature and general scheme of the Belgian income tax system. 202 The applicants submit that the overall coherence of the Belgian tax system means that the public authorities are not liable to corporate tax, which is a tax on profits. The legal persons referred to in Article 180 of the CIR, which include the Belgian ports, are not liable to corporate tax in so far as they do not pursue a profit motive and constitute the extension of the State’s authority. Moreover, according to the applicants, they do not act with the aim of maximising profits, but must reinvest any surpluses in the public infrastructure. It is therefore only logical that the port authorities fall within the scope of tax on legal persons and not corporate tax. 203 Finally, according to the applicants, the liability of the port authorities to corporate tax is penalising and discriminatory since it increases the tax burden on the port authorities in a disproportionate manner. Since they are liable to corporate tax, the ports are able to deduct only the costs which are associated with the social activity and intended to acquire or retain taxable income. Thus, the costs incurred by the ports for reasons of general interest cannot be deducted under Article 49 of the CIR and are added to the accounting profit as ‘non-deductible expenses’. Moreover, there is a risk that such costs may be taxed as ‘exceptional or gratuitous advantages’ within the meaning of Article 26 of the CIR. Consequently, the fact that the port authorities are liable to corporate tax results in discrimination since entities which are in different situations are treated identically. 204 The Kingdom of Belgium also points out that, even if Article 180(2) of the CIR were to introduce a derogation which favours the Belgian port authorities, which it denies vigorously, it could be justified by the nature and general scheme of the Belgian income tax system. The logic of the Belgian income tax system is based on a distinction between commercial undertakings with a profit-making objective and entities operating in the general public interest. The fact that the port authorities, which are bodies governed by public law pursuing public interest tasks that were previously entrusted to the local authorities, are not liable to corporate tax, is merely an application of that principle. 205 The Commission disputes those arguments. 206 In that regard, it must be observed that the arguments put forward by the Kingdom of Belgium in connection with that complaint coincide broadly with those which were examined in the context of the complaint alleging that the ports are not comparable to undertakings which are liable to corporate tax (see paragraphs 173 to 190 above). 207 It must be recalled that, according to the case-law, a measure which creates an exception to the application of the general tax system may be justified by the nature and overall structure of the tax system if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that connection, a distinction must be drawn between, on the one hand, the objectives attributed to a particular tax scheme which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives (judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 81; of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 69; and of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 48). 208 Thus, although the Court has accepted, in its case-law, that objectives inherent in the general tax system concerned, such as those aimed at avoiding double taxation or the prevention of abuse, could justify an a priori selective tax regime (see, to that effect, judgments of 29 April 2004, GIL Insurance and Others, C‑308/01, EU:C:2004:252, paragraphs 74 to 76; of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64 to 76; and of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraphs 50 to 53), it has consistently refused to accept that objectives which are external to the tax system, such as the desire to maintain international competitiveness or to safeguard employment in certain sectors, or even to favour socially deserving organisations, may justify a measure which is a priori selective and thus remove it from the scope of Article 107(1) TFEU (see, to that effect, judgments of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraphs 37 to 39; of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 54; and of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraphs 136 to 138). 209 The fact remains that, in the present case, the concepts of general interest, the absence of a profit-making objective and the public or private nature of the entities concerned are unrelated to the nature and logic of the Belgian income tax system, which is based, in respect of the distinction between corporate tax and tax on legal persons, on the definition of ‘company’, as laid down in Article 2(5) of the CIR (see paragraph 148 above). 210 Accordingly, the Commission did not commit an error of assessment when it took the view, in recital 103 of the contested decision, that, since the decisive criterion for liability to corporate tax or to tax on legal persons was the act of engaging in a ‘business’ or ‘transactions of a profit-making nature’ by the entity concerned (see Article 2 of the CIR), the arguments to the effect that the ports would be exempt from corporate tax because they did not distribute their profit but reinvested it, that they pursued an objective beyond their individual interest, that they did not have the statutory objective of the pursuit of profit, that they were public authorities and that they carried out tasks in the general interest were not sufficient to justify more favourable tax treatment than that of other resident companies in relation to the guiding principles of the tax system. 211 In any event, even if the objectives invoked by the Kingdom of Belgium may be covered by the nature or logic of the tax system, it must be stated that they are not pursued in a consistent way by the measure at issue in the present case (see, to that effect, judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 88, and of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 73 and 74). 212 As the Commission noted in recital 103 of the contested decision, other undertakings also reinvest their profit, pursue objectives beyond their individual interest or generate effects on the economy beyond their individual interest without being exempted from corporate tax for those reasons. Conversely, entities which are not public authorities, such as not-for-profit associations, may be subject to tax on legal persons provided that they respect the general criterion laid down in Article 2 of the CIR, which means that the fact of belonging to the public sphere is no longer a relevant criterion in relation to the national rules. 213 Finally, as regards the applicants’ argument that the fact that they are liable to corporate tax is penalising and discriminatory (see paragraph 203 above), it should be observed, as the Commission did in recital 105 of the contested decision, that the exemption from corporate tax from which the ports benefit is not linked to the fact that they are financially disadvantaged by Article 49 of the CIR, since the exemption at issue relates to all profits made and is not limited to profits resulting from the possible non-deductibility of certain costs under Article 49 of the CIR. The exemption provided for in Article 180(2) of the CIR is therefore not justified by a guiding principle of the Belgian tax system, even if Article 49 of the CIR constitutes such a guiding principle. 214 In the light of all of those considerations, the Commission did not commit an error of assessment when it considered, in the contested decision, that the exemption from corporate tax from which the ports benefited procured them a selective advantage in accordance with Article 107(1) TFEU. 215 Accordingly, the second and third pleas must be rejected. The fourth plea in law, regarding, in the further alternative, a request for a transitional period 216 In the further alternative, the applicants request that the Court grants a transitional period until such time that the Commission has completed its investigation into the tax regime of the various EU ports and, in any event, amounting to one full year, to enable them to adapt to the new situation. In the case concerning taxation of ports in the Netherlands, the Commission granted the legislature and the Netherlands ports a full year to adapt to the new situation. Moreover, there are indications that similar measures exist in other Member States, and therefore a difference in treatment would harm the conditions of fair competition and strengthen the inequalities between ports in the various Member States. 217 First, the Kingdom of Belgium submits that, by carrying out certain investigations selectively in some Member States only, the Commission thus conferred a competitive advantage on the port authorities of the European Union which are not liable to any form or other forms of tax and are not the subject of any investigation. Secondly, the Kingdom of Belgium, invoking the practical possibilities of adapting the Belgian tax legislation and relying on the example of the Netherlands, considers that the Commission has failed to ensure a level playing field by refusing to grant a transitional period in order to permit that adaptation. 218 The Commission disputes those arguments. 219 As a preliminary point, it should be noted that, by that plea, the applicants are requesting that the Court grants a transitional period and not that it annuls the contested decision on account of a defect by which it is vitiated. It must be recalled, as the Commission has done, that the Court has no jurisdiction to issue directions to EU institutions or, when exercising the review of legality, to assume the role assigned to them (see to that effect, judgments of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraph 43, and of 12 May 2016, Hamr – Sport v Commission, T‑693/14, not published, EU:T:2016:292, paragraph 91). 220 In the reply, the applicants submit, however that the limits of the Court’s review do not preclude the annulment of a Commission decision on the ground that it does not provide for an appropriate interim measure. Such a plea may be understood, therefore, as alleging, in essence, infringement of the principle of equal treatment, which should result in the contested decision being annulled in that respect, since that decision contains no transitional period for the Kingdom of Belgium not to make the Belgian ports liable to corporate tax until the Commission has completed its investigation into the tax regime of the various ports in all of the EU Member States. 221 In that regard, first, in so far as the applicants appear to claim that the Commission should have granted a transitional period of one year, as in its Decision (EU) 2016/634 of 21 January 2016 on aid measure SA.25338 (2014/C) (ex E 3/2008 and ex CP 115/2004) implemented by the Netherlands – Corporate tax exemption for public undertakings (OJ 2016 L 113, p. 148), the fact remains that it is not apparent from the operative part of that decision that the Commission granted a transitional period to the Kingdom of the Netherlands. On the contrary, Article 2 of that decision provides that ‘the Netherlands shall remove the corporate tax exemption for the seaports referred to in Article 1 within 2 months from the date of notification of this Decision, and the corporate tax scheme thus amended shall apply at the latest with effect from the tax year following the adoption of this Decision’. The obligations imposed on the Kingdom of the Netherlands under that decision are therefore similar to those which have been imposed on the Kingdom of Belgium under Article 2 of the contested decision in the present case (see paragraph 22 above), without there being any difference in treatment in that regard. 222 Secondly, in so far as the applicants appear to claim that the Commission should have waited until it closed its investigations into the taxation of ports in all EU Member States, in order not to create additional distortions of competition, it must be held that a similar argument was examined and rejected by the General Court in the judgment of 31 May 2018, Groningen Seaports and Others v Commission (T‑160/16, not published, EU:T:2018:317). 223 In that judgment, delivered following an action brought by certain Netherlands ports against Decision 2016/634 (see paragraph 221 above), the Court rejected the applicants’ argument alleging infringement of the principle of equal treatment, recalling, first of all, that, according to settled case-law, observance of the principle of equal treatment had to be reconciled with the principle of legality, which implied that no one could rely, in support of his claim, on an unlawful act committed in favour of a third party (see judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 116 and the case-law cited). 224 Thus, in order to obtain annulment of the contested decision, the applicants cannot rely on the fact that the Commission did not, at the same time, request that other Member States abolish the aid granted to their ports (see, to that effect, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 117). 225 In any event, it should be noted that, in accordance with settled case-law, observance of the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. According to equally settled case-law, a breach of the principle of equal treatment as a result of different treatment presupposes that the situations concerned are comparable, having regard to all the elements which characterise them (see judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 119 and the case-law cited). 226 In the present case, there are relative differences, on the one hand, in the progress of the various procedures concerning the tax regimes of the Member States and, on the other hand, in the tax legislation which applies to the ports of the various Member States. Such differences are capable of constituting objective reasons justifying the Commission’s adoption of the contested decision and its order that the exemption from which the Belgian ports benefited in the present case be abolished before it closed its investigations into the taxation of ports in all EU Member States (see, to that effect, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraphs 120 to 130). 227 Moreover, to accept the applicants’ line of argument would mean that the Commission had to wait to complete all of its investigations into all of the Member States which grant aid to their ports in order to take its final decisions and order the abolition of that aid, to the detriment of the Member States which do not grant aid to their ports (see, to that effect, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 132). 228 Finally, it must be held that the arguments put forward by the Kingdom of Belgium in support of the applicants must be understood in the same way as those referred to in paragraphs 219 to 227 above. Even if, however, the arguments put forward by the Kingdom of Belgium may be understood as alleging infringement of Article 107(1) TFEU, as regards the concepts of distortion of competition and the effect on trade between Member States, on account of the absence of fair competition in the European Union, it must be observed, as the Commission has done, that such a plea was not raised by the applicants and therefore constitutes a new plea in law which is inadmissible. It must be borne in mind that, although the fourth paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, and Article 142(3) of the Rules of Procedure do not preclude an intervener from submitting arguments which are new or different from those used by the party it supports, as otherwise its intervention is limited to restating the arguments put forward in the application, it cannot be accepted that those provisions allow it to alter or distort the context of the dispute defined by the application by raising new pleas in law (see judgment of 12 December 2006, SELEX Sistemi Integrati v Commission, T‑155/04, EU:T:2006:387, paragraph 42 and the case-law cited). 229 Accordingly, the fourth plea in law must also be rejected and the action must be dismissed in its entirety. Costs 230 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 231 However, in accordance with Article 138(1) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs. 232 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission, with the exception of the costs incurred by the Kingdom of Belgium, which is to bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Havenbedrijf Antwerpen NV and Maatschappij van de Brugse Zeehaven NV to bear their own costs and to pay the costs incurred by the European Commission; 3. Orders the Kingdom of Belgium to bear its own costs. Berardis Labucka Spielmann Csehi Spineanu-Matei Delivered in open court in Luxembourg on 20 September 2019. [Signatures] Table of contents * Language of the case: Dutch.