Opinion of the Advocate General — ECLI:EU:C:2017:135
Date: 2017-02-16
Language of the case: Spanish
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary 101. All in all it may be stated as follows: A tax exemption, such as that at issue in this case, does not contravene the prohibition on State aid under Article 107(1) TFEU, where it affects a school building which is used by the Catholic Church for the provision of educational services in the context of its social, cultural and educational mission. On the other hand, that tax exemption would constitute State aid prohibited under Article 107(1) TFEU if the building concerned were used for genuinely commercial objectives. VI – Conclusion 102. In the light of the foregoing considerations, I propose that the Court answer the question referred by the Juzgado de lo Contencioso-administrativo No 4 (Court for Contentious Administrative Proceedings No 4), Madrid for a preliminary ruling as follows: An exemption from the tax on constructions, installations and works to which the Catholic Church is entitled under the Agreement of 3 January 1979 between the Spanish State and the Holy See concerning economic matters does not contravene the prohibition on State aid under Article 107(1) TFEU, where it affects a school building which is used by the Catholic Church, not for the commercial provision of educational services, but for the provision of education services in the context of its social, cultural and educational mission. 1 Original language: German. 2 See, inter alia, judgments of 27 September 1988, Humbel and Edel (263/86, EU:C:1988:451), of 7 December 1993, Wirth (C‑109/92, EU:C:1993:916), and of 11 September 2007, Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492), and Commission v Germany (C‑318/05, EU:C:2007:495); also judgment of the EFTA Court of 21 February 2008, Private Barnehagers v EFTA Surveillance Authority (E-5/07, Report of the EFTA Court, 2008, 61). 3 See, most recently, Achbita (C‑157/15) and Bougnaoui and ADDH (C‑188/15). 4 – BOE No 300 of 15 December 1979, p. 28782, ‘1979 Agreement’ or ‘Agreement’. 5 Impuesto sobre Construcciones, Instalaciones y Obras (ICIO). 6 Ley reguladora de las Haciendas Locales. 7 Real Decreto Legislativo. 8 BOE No 59 of 9 March 2004, p. 10284. 9 BOE No 144 of 16 June 2001, p. 21427 (‘the 2001 Order’). 10 EHA/2814/2009, BOE No 254 of 21 October 2009, p. 88046 (‘the 2009 Order’). 11 Impuesto sobre Bienes Inmuebles (IBI). 12 According to the Spanish Government, that clarification was provided ‘in agreement with the Spanish Bishops’ Conference’ in order to allay the concerns of the European Commission in regard to the prohibition of State aid (Az. SA.22829, Spain — Tax exemption in favour of Catholic institutions (E 2/2007)). 13 ECLI:ES:AN:2013:5382. The latter judgment was upheld by the judgment of the Spanish Tribunal Supremo of 19 November 2014, ECLI:ES:TS:2014:4901. 14 ‘Congregación.’ 15 Órgano de Gestión Tributaria. 16 For instance, the Court highlights the need to observe Article 94 of the Rules of Procedure in the order of 12 May 2016, Security Service and Others (C‑692/15 to C‑694/15, EU:C:2016:344, paragraph 18). Analogous requirements as to the admissibility of requests for a preliminary ruling had already been formulated by the Court in a line of authorities; see, inter alia, judgments of 24 April 2012, Kamberaj (C‑571/10, EU:C:2012:233, paragraph 42), and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraphs 56 and 57). 17 To this effect, see order of 8 October 2002, Viacom (C‑190/02, EU:C:2002:569, paragraphs 21 and 22), and judgments of 31 January 2008, Centro Europa 7 (C‑380/05, EU:C:2008:59, paragraph 58); of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraph 20); and of 13 February 2014, Airport Shuttle Express and Others (C‑162/12 and C‑163/12, EU:C:2014:74, paragraph 38). 18 Judgments of 7 September 1999, Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 25); of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 20); and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 57). 19 Judgments of 24 June 2008, Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraph 31), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 36). 20 See in the same vein, inter alia, judgment of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 27). 21 On grounds of simplicity I shall, in the present case, refrain from specifically mentioning ‘religious associations or communities’, which are also referred to in Article 17 TFEU. 22 In so far as the Congregación relied on freedom of religion (Article 10 of the Charter of Fundamental Rights of the European Union) at the hearing before the Court, my submissions on Article 17 TFEU apply by analogy. 23 Signed at Rome on 29 October 2004 (OJ 2004 C 310, p. 1). 24 Declaration No 11 in the Final Act of the Inter-Governmental Conference on the Treaty of Amsterdam signed on 2 October 1997 (OJ 1997 C 340, p. 133). 25 Judgments of 5 October 1988, Steymann (196/87, EU:C:1988:475, paragraphs 9 and 14), and of 14 March 2000, Church of Scientology (C‑54/99, EU:C:2000:124). 26 Judgments of 12 December 1974, Walrave and Koch (36/74, EU:C:1974:140); of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463); of 18 July 2006, Meca-Medina and Majcen v Commission (C‑519/04 P, EU:C:2006:492); of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376); and of 16 March 2010, Olympique Lyonnais (C‑325/08, EU:C:2010:143). 27 Judgments of 11 September 2007, Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492), and Commission v Germany (C‑318/05, EU:C:2007:495). 28 Judgments of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71, paragraph 26); of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 58); and of 15 June 2006, Air Liquide Industries Belgium (C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 27). 29 See on this, inter alia, judgments of 12 December 1990, SARPP (C-241/89, EU:C:1990:459, paragraph 8); of 2 December 2009, Aventis Pasteur (C-358/08, EU:C:2009:744, paragraph 50); of 17 July 2014, Leone (C-173/13, EU:C:2014:2090, paragraphs 56 and 64); and of 13 July 2016, Pöpperl (C-187/15, EU:C:2016:550, paragraph 35). 30 Judgments of 16 November 1977, GB-Inno-BM (13/77, EU:C:1977:185, paragraph 31); of 11 December 2007, ETI and Others (C‑280/06, EU:C:2007:775, paragraph 38); of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraph 20); and of 5 March 2015, Commission and Others v Versalis and Others (C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 88). 31 Judgments of 23 April 1991, Höfner and Elser (C‑41/90, EU:C:1991:161, paragraph 21); of 16 March 2004, AOK Bundesverband and Others (C‑264/01, C‑306/01, C‑354/01 and C‑355/01, EU:C:2004:150, paragraph 46); and of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 33); also judgment of 12 July 1984, Hydrotherm Gerätebau (170/83, EU:C:1984:271, paragraph 11). 32 Judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraph 112). 33 Judgment of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraph 25, last sentence). In the same vein, judgments of 16 June 1987, Commission v Italy (118/85, EU:C:1987:283, paragraph 7); of 18 March 1997, Diego Calì & Figli (C‑343/95, EU:C:1997:160, paragraphs 16 and 18); and of 24 October 2002, Aéroports de Paris v Commission (C‑82/01 P, EU:C:2002:617, paragraph 75). Also my Opinions in Viacom Outdoor (C‑134/03, EU:C:2004:676, point 72) and MOTOE (C‑49/07, EU:C:2008:142, point 49). 34 Judgments of 18 June 1998, Commission v Italy (C‑35/96, EU:C:1998:303, paragraph 36); of 12 September 2000, Pavlov and Others (C‑180/98 to C‑184/98, EU:C:2000:428, paragraph 75); of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraph 108); of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraph 22); and of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 149). 35 In the same vein, judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraphs 122 to 124), and of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraph 27). See also judgment of 18 December 2007, Jundt (C‑281/06, EU:C:2007:816, paragraph 33). 36 The mere fact that there is freedom to found educational establishments (Article 14(3) of the Charter of Fundamental Rights) and that freedom of religion also has an educative component (Article 10(1), second sentence, of the Charter), cannot in itself give any indication as to whether educational services provided in a specific educational establishment are to be regarded as subsumed within the economic cycle or not. 37 This refers, inter alia, to donations in kind by pupils and their parents and also the private financing of certain constructions or building works. 38 To this effect, see — in relation to private educational establishments — judgments of 7 December 1993, Wirth (C‑109/92, EU:C:1993:916, paragraph 17), and of 11 September 2007, Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492, paragraph 40), and Commission v Germany (C‑318/05, EU:C:2007:495, paragraph 69). 39 To this effect, see — in relation to state educational establishments — judgments of 27 September 1988, Humbel and Edel (263/86, EU:C:1988:451, paragraphs 17 and 18); of 7 December 1993, Wirth (C‑109/92, EU:C:1993:916, paragraphs 15 and 16); and of 11 September 2007, Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492, paragraph 39); and Commission v Germany (C‑318/05, EU:C:2007:495, paragraph 68). As the EFTA Court emphasises this case-law which was decided in connection with freedom to provide services may be transposed to competition law and to the sector of State aid, judgment of 21 February 2008, Private Barnehagers v EFTASurveillance Authority (E-5/07, Report of the EFTA Court, 2008, 61, paragraphs 80 to 83). The Commission makes the same point in paragraphs 28 to 30 of its Notice on the notion of State aid (OJ 2016 C 262, p. 1). 40 That is how the question submitted by the referring court is formulated. 41 Apart from voluntary donations, the pupils’ parents pay only for optional services by the school such as transport of pupils and lunch. 42 It should be mentioned in passing that there would also be entrepreneurial activity if the school hall were hired out to third parties to a significant extent for non-school events without any social or cultural connotation. 43 In that connection, it is apparent from the files that 5.46% of the usable surface area of the buildings belonging to the La Inmaculada school are used by a non-profit establishment for educational provision which is not co-financed by the State. It will be for the national court to assess whether those particular activities form part of the voluntary educational provision mentioned above or whether they are a separate additional commercial educational provision. 44 At the hearing the Commission contended that the number of pupils taking up the voluntary educational provision at the La Inmaculada school is up to 23%. It claims that this number emerges from the information published by the school itself on its web page. In that connection the Commission appears to base itself on the pupil numbers in the bachillerato and formación profesional branches for the school year 2008/2009 (see www.escolapiosdegetafe.es/historia, most recently visited on 12 January 2017). It is not the task of the Court of Justice to verify the correctness and completeness of this information. 45 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). 46 Communication from the Commission — Framework for State aid for research and development and innovation (OJ 2014 C 198, p. 1). 47 Recital 49 of Regulation No 651/2014. 48 Paragraph 20 of the EU framework. 49 In assessing the question whether under Articles 101 and 102 TFEU certain conduct by undertakings can have discernible effects on trade between Member States a market share threshold of 5% is used in the case-law and the practice of the Commission in addition to other criteria; see on this Commission Notice ‘Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty’, paragraphs 46, 52 and 53 (OJ 2004 C 101, p. 81). 50 Thus in the VAT sector Germany was authorised by the Council to exclude from the right to deduct the VAT charged on expenditure on goods and services where more than 90% of those goods and services are used for the private purposes of a taxable person or of his employees or, more generally, for non-business purposes (Article 1 of Council Decision 2000/186/EC of 28 February 2000; OJ 2000 L 59, p. 12). Economic activity may thus be deemed to be wholly ancillary in this case only if it constitutes or amounts to less than 10%. 51 See points 36 to 60 of this Opinion. 52 Judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 74); of 8 May 2013, Libert and Others (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 74); and of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 40); and Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53). 53 Judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 75); of 8 May 2013, Libert and Others (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 74); and of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 40); and Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53). 54 Judgments of 3 March 2005, Heiser (C‑172/03, EU:C:2005:130, paragraph 46); of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 94); of 26 October 2016, Orange v Commission (C‑211/15 P, EU:C:2016:798, paragraph 38); and of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 48). 55 Judgments of 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v HighAuthority (30/59, EU:C:1961:2, p. 43); of 15 March 1994, Banco Exterior de España (C‑387/92, EU:C:1994:100, paragraph 13); of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 58); and of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 33). 56 Judgments of 15 March 1994, Banco Exterior de España (C‑387/92, EU:C:1994:100, paragraph 14); 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 72); of 9 October 2014, Ministerio de Defensa and Navantia (C‑522/13, EU:C:2014:2262, paragraph 23); 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, paragraph 56); similarly judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416,, inter alia, paragraph 81). 57 To this effect, see judgments of 14 October 1987, Germany v Commission (248/84, EU:C:1987:437, paragraph 17), and of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraph 55). 58 See above, point 13 of this Opinion. 59 Judgment of 14 January 2015 (Eventech, C‑518/13, EU:C:2015:9, paragraph 54). 60 Judgments of 3 March 2005, Heiser (C‑172/03, EU:C:2005:130, paragraph 40); of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 55); and of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraphs 41 and 54); and Commission v World Duty Free Groupand Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54); In the same vein, judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 41). 61 Judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraphs 41 and 42); of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraphs 54 and 56); 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 73, 75 and 101); 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 54 and 60). 62 See on the criterion of financial advantage, judgments of 15 June 2006, Air Liquide Industries Belgium (C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 30); of 9 October 2014, Ministerio de Defensa and Navantia (C‑522/13, EU:C:2014:2262, paragraph 23); of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555, paragraph 61); 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, paragraph 56). 63 See, on the issue of general measures applicable without distinction to all economic operators, judgments of 18 July 2013, P (C‑6/12, EU:C:2013:525, paragraph 18); of 9 October 2014, Ministerio de Defensa and Navantia (C‑522/13, EU:C:2014:2262, paragraph 23); 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 56 and 59); In the same vein, judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 35). 64 Judgments of 29 April 2004, Netherlands v Commission (C‑159/01, EU:C:2004:246, paragraphs 42 and 43); of 18 July 2013, P (C‑6/12, EU:C:2013:525, paragraph 22); 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, paragraph 58); and Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 41); similarly judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 42), and of 9 October 2014, Ministerio de Defensa and Navantia (C‑522/13, EU:C:2014:2262, paragraphs 42 and 43). 65 Judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraphs 83 to 94, in particular, paragraphs 88 to 93); settled case-law, finally see judgment of 26 October 2016, Orange v Commission (C‑211/15 P, EU:C:2016:798, paragraphs 42 and 44). 66 First criterion in Altmark Trans (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 89). 67 Second criterion in Altmark Trans (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraphs 90 and 91). 68 Judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraph 140); of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 65); of 26 October 2016, Orange v Commission (C‑211/15 P, EU:C:2016:798, paragraph 64); and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 102). 69 Judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraphs 141 to 143); of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraphs 66 and 67); and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 104). 70 Judgments of 30 April 2009, Commission v Italy and Wam (C‑494/06 P, EU:C:2009:272, paragraph 54), and of 26 October 2016, Orange v Commission (C‑211/15 P, EU:C:2016:798, paragraph 66). 71 Judgments of 21 March 1990, Belgium v Commission (‘Tubemeuse’, C‑142/87, EU:C:1990:125, paragraph 43); of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 81); of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 68); and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 107). 72 See on this my comments above on the concept of undertaking, inter alia, at points 53 to 60 of this Opinion. 73 – Fundamental in this regard is the judgment of 28 February 1991, Delimitis (C‑234/89, EU:C:1991:91, paragraphs 19 to 27), according to which when assessing any anticompetitive effects of agreements between undertakings it is relevant to consider that a ‘bundle of similar contracts’ exists on the market capable of producing a ‘cumulative sealing-off effect’; see also judgments of 27 April 1994, Almelo (C‑393/92, EU:C:1994:171, paragraph 37), and of 26 November 2015, Maxima Latvija (C‑345/14, EU:C:2015:784, paragraph 26); similarly, judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204, paragraph 79). 74 Article 3(1) and (2) of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European EU to deminimis aid (OJ 2013 L 352, p. 1). This regulation applies under Article 7(1) also to aid granted before its entry into force. 75 See above, points 36 to 60 of this Opinion. 76 On the need to give the referring court a useful reply and thus if necessary to discuss aspects of EU law which are not expressly forming the subject matter of a request for a preliminary ruling, see judgments of 12 December 1990, SARPP (C‑241/89, EU:C:1990:459, paragraph 8); of 2 December 2009, Aventis Pasteur (C‑358/08, EU:C:2009:744, paragraph 50); of 18 December 2014, Centre public d’action sociale d'Ottignies-Louvain-La-Neuve (C‑562/13, EU:C:2014:2453, paragraph 37); and of 17 December 2015, Neptune Distribution (C‑157/14, EU:C:2015:823, paragraphs 33 and 34). 77 Judgments of 14 February 1990, France v Commission (C‑301/87, EU:C:1990:67, paragraph 17); of 12 February 2008, Centre d’exportation du livre français (C‑199/06, EU:C:2008:79, paragraphs 36 and 37); of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraphs 25 and 26); and of 11 November 2015, Klausner Holz Niedersachsen (C‑505/14, EU:C:2015:742, paragraphs 18 and 19). 78 Judgments of 15 March 1994, Banco Exterior de España (C‑387/92, EU:C:1994:100, paragraph 20); of 18 July 2013, P (C‑6/12, EU:C:2013:525, paragraph 36); and of 26 October 2016, DEI v Commission (C‑590/14 P, EU:C:2016:797, paragraph 45). 79 In that connection see my Opinion in Vervloet and Others (C‑76/15, EU:C:2016:386, point 115), in relation to the question when new aid is to be deemed to be ‘initiated’ or ‘put into effect’ within the meaning of Article 108(3) TFEU. The same criterion of the occurrence of the distortion of competition may also be used for the demarcation between new aid and existing aid. 80 Judgments of 14 October 1980, Burgoa (812/79, EU:C:1980:231, paragraph 6), and of 2 August 1993, Levy (C‑158/91, EU:C:1993:332, paragraph 11). 81 Judgments of 28 March 1995, Evans Medical and Macfarlan Smith (C‑324/93, EU:C:1995:84, paragraph 27); of 14 January 1997, Centro-Com (C‑124/95, EU:C:1997:8, paragraph 56); and of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 61). 82 To this effect, see judgments of 14 January 1997, Centro-Com (C‑124/95, EU:C:1997:8, paragraph 61), and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 301). 83 Judgment of 28 March 1995, Evans Medical and Macfarlan Smith (C‑324/93, EU:C:1995:84, paragraph 32). 84 Judgments of 2 August 1993, Levy (C‑158/91, EU:C:1993:332, paragraph 21); of 28 March 1995, Evans Medical and Macfarlan Smith (C‑324/93, EU:C:1995:84, paragraph 29), and of 14 January 1997, Centro-Com (C‑124/95, EU:C:1997:8, paragraph 58). 85 Judgments of 14 September 1999, Commission v Belgium (C‑170/98, EU:C:1999:411, paragraph 42), and of 4 July 2000, Commission v Portugal (C‑62/98, EU:C:2000:358, paragraph 49) and Commission v Portugal (C‑84/98, EU:C:2000:359, paragraph 58).