62019CC0050
OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 21 January 2021 (
1
)
Case C‑50/19 P
Sigma Alimentos Exterior, SL
v
European Commission
(Appeal – Provisions concerning corporate tax allowing companies which are resident for tax purposes in Spain to amortise the goodwill resulting from the acquisition of shareholdings in companies which are tax resident for tax purposes abroad – Concept of State aid – Selectivity)
1.
The present case concerns the appeal brought by Sigma Alimentos Exterior, SL (‘Sigma’) against the judgment of 15 November 2018, Sigma Alimentos Exterior v Commission (
2
) (‘the judgment under appeal’), by which the General Court dismissed the action brought under Article 263 TFEU by Sigma seeking the annulment of Article 1(1) of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain (‘the decision at issue’) (
3
) and, in the alternative, of Article 4 of that decision.
2.
The present appeal forms part of a series of eight parallel actions seeking the annulment of the judgments by which the General Court dismissed the actions brought by certain Spanish undertakings against the decision at issue or against Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain (‘the Decision of 28 October 2009’). (
4
)
I. The facts, the measure at issue and the decision at issue
3.
On 10 October 2007, after a number of written questions had been sent to it in 2005 and 2006 by Members of the European Parliament and after it had received a complaint from a private operator in 2007, the European Commission decided to initiate the formal investigation procedure under the current Article 108(2) TFEU (
5
) (‘the opening decision’), in relation to an arrangement laid down in Article 12(5) of the Ley del Impuesto sobre Sociedades (Spanish Corporate Tax Law) introduced by Ley 24/2001, de Medidas Fiscales, Administrativas y del Orden Social (Law 24/2001 on fiscal, administrative and social measures) of 27 December 2001, (
6
) and reproduced in Real Decreto Legislativo 4/2004, por el que se aprueba el texto refundido de la Ley del Impuesto sobre Sociedades (Royal Legislative Decree 4/2004 approving the recast text of the Corporate Tax Law; ‘the TRLIS’) of 5 March 2004 (‘the measure at issue’). The measure at issue provides that, in the event that an undertaking taxable in Spain acquires a shareholding in a ‘foreign company’ equal to at least 5% of that company’s capital and retains that shareholding for an uninterrupted period of at least one year, the resulting financial goodwill (
7
) (
8
) may be deducted, in the form of amortisation, from the taxable base for the undertaking’s corporate tax liability. The measure at issue states that, to be classified as a ‘foreign company’, a company must be liable to pay a tax that is identical to the tax applicable in Spain and its income must derive mainly from business activities carried out abroad.
4.
By the Decision of 28 October 2009, the Commission closed the formal investigation procedure in respect of acquisitions of shareholdings within the European Union. In that decision, the Commission held that the aid scheme implemented by Spain under the measure at issue was incompatible with the internal market as regards aid granted to beneficiaries in respect of intra-Community acquisitions.
5.
The Commission did, however, keep the formal investigation procedure open in respect of acquisitions of shareholdings outside the European Union, pending further information that the Spanish authorities had undertaken to provide. That part of the procedure was closed by the adoption of the decision at issue. Article 1(1) of that decision stated that the aid scheme implemented by Spain under the measure at issue was incompatible with the internal market ‘as regards aid granted to beneficiaries in respect of extra-EU acquisitions’. (
9
) Paragraph 4 of that article states that ‘tax reductions enjoyed by beneficiaries under Article 12(5) of the TRLIS in respect of extra-EU acquisitions carried out by the date of publication of this Decision in the Official Journal of the European Union, which are related to majority shareholdings held directly or indirectly in foreign companies established in China, India or in other countries where the existence of explicit legal barriers to cross-border business combinations have been or can be demonstrated … can continue to apply over the entire amortisation period established by the aid scheme’. Article 4(1) of the decision at issue requires the recovery of the ‘incompatible aid corresponding to the tax reduction under the scheme referred to in Article 1(1) from the beneficiaries whose rights in foreign companies, acquired in the context of extra-EU acquisitions, do not fulfil the conditions laid down in Article 1(2) to (5)’.
II. The procedure before the General Court and the judgment under appeal
6.
By application lodged at the Registry of the General Court on 3 May 2011, Sigma brought an action seeking annulment of the decision at issue. By separate document, the Commission raised a plea of inadmissibility on 11 November 2011, which the General Court joined to the substance. The procedure was suspended from 13 March to 7 November 2014, the date on which the General Court ruled on the case that gave rise to the judgment of 7 November 2014, Banco Santander and Santusa v Commission (
10
) (‘the judgment in Banco Santander and Santusa v Commission’) setting aside the decision at issue, on the grounds that the Commission had misapplied the condition of selectivity laid down in Article 107(1) TFEU. The General Court also set aside the Decision of 28 October 2009 by judgment of 7 November 2014, Autogrill España v Commission (
11
) (‘the judgment in Autogrill España v Commission’).
7.
By application lodged at the Registry of the Court of Justice on 19 January 2015, the Commission brought an appeal against the judgment in Banco Santander and Santusa v Commission. That appeal, registered under number C‑21/15 P, was joined to the appeal, registered under number C‑20/15 P, brought by the Commission against the judgment in Autogrill España v Commission. By decisions of the President of the Court of Justice of 19 May 2015, the Federal Republic of Germany, Ireland and the Kingdom of Spain were granted leave to intervene in the joined cases in support of the forms of order sought by World Duty Free Group and Banco Santander and Santusa. By judgment of 21 December 2016, Commission v World Duty Free Group and Others (
12
) (‘the WDFG judgment’), the Court of Justice set aside the judgment in Banco Santander and Santusa v Commission, referred the case back to the General Court and partially reserved the costs. The Court of Justice also set aside the judgment in Autogrill España v Commission.
8.
The procedure before the General Court, which was once again suspended from 9 March 2015, resumed on 21 December 2016 and concluded with the adoption of the judgment under appeal, by which the General Court dismissed Sigma’s action and ordered that party to pay costs.
III. Procedure before the Court of Justice and forms of order sought
9.
By application lodged at the Registry of the Court of Justice on 25 January 2019, Sigma brought the present appeal. That party is seeking to have: (i) the judgment under appeal set aside; (ii) Article 1(1) of the decision at issue annulled, primarily, in so far as it states that the system introduced by the measure at issue constitutes State aid and, in the alternative, in so far as it states that the system in question constitutes aid even when it involves an acquisition of control; (iii) in the further alternative, Article 4 of the decision at issue annulled, in so far as it requires the recovery of aid granted for transactions completed prior to the publication of the decision at issue in the Official Journal; (iv) an order for the Commission to pay the costs. The Commission contends that the Court should dismiss the appeal and order Sigma to pay the costs. The Federal Republic of Germany supports the forms of order sought by Sigma.
IV. Arguments
A. Introductory comments
10.
Reference should be made to the statements made and the criteria discussed in points 11 to 21 of my Opinion in Joined Cases C‑51/19 P, World Duty Free Group v Commission and C‑64/19 P, Spain v Commission, delivered today, for an examination of the case-law, as it now stands, in relation to selectivity of tax measures and, in particular, for an illustration of the three-step method for analysing selectivity developed by the Court. It is in the light of those statements and criteria that the complaints put forward by Sigma will be examined.
B. The appeal
11.
The appellant puts forward two grounds in support of its appeal. The first contends that the General Court has misinterpreted the WDFG judgment. The second, which is subdivided into four limbs, relates to an erroneous application of the three-step method for analysing selectivity.
1.
The first ground of the appeal
(a)
Arguments of the parties
12.
By its first ground of appeal, the appellant, supported by the German Government, alleges that the General Court has misinterpreted the WDFG judgment in asserting, in paragraphs 69 and 70 of the judgment under appeal, that the selectivity of a measure can be established on the basis of the intentional behaviour of the undertakings excluded from the advantage granted by that measure, without consideration of the specific circumstances of the undertakings concerned. According to the appellant, it follows from paragraphs 67, 77 and 79 of the WDFG judgment that the selectivity analysis must be conducted on the basis of the situation of the undertakings and not the system applying to the transactions they carry out. The fact that certain undertakings may choose to carry out certain transactions and not others does not imply that those undertakings are in different situations. Undertakings investing in Spanish companies are free to decide whether to form a business combination and thus whether to benefit from amortisation. For those undertakings, the fact that they cannot amortise their goodwill does not depend on the situation of the acquiring company but on its behaviour. By contrast, before the measure at issue entered into force, the fact that amortisation was not possible in the event of acquisition of shareholdings in foreign companies was absolute, especially for non-EU acquisitions, and depended on the situation of the acquiring company and not its behaviour. Undertakings acquiring shares in resident companies were therefore in a more advantageous position, and had the option of choosing.
13.
The Commission asserts that the first ground of appeal is inadmissible because Sigma’s action before the General Court did not raise any pleas relating to the criteria serving as the basis for comparing the situation of the undertakings benefiting from the measure at issue and those excluded from application of the measure. According to the Commission, to allow Sigma to put forward new pleas in an appeal would be to authorise it to bring before the Court of Justice a wider case than the one brought before the General Court. In any case, according to the Commission, the first ground of appeal is unfounded, because the measure at issue does not apply solely to undertakings that acquire shareholdings in foreign companies for the purpose of mergers, but also to those that acquire minority interests.
(b)
Evaluation
(1) Admissibility
14.
In my view, the plea of inadmissibility put forward by the Commission must be rejected.
15.
It is certainly true that, according to settled case-law cited by the Commission, in an appeal the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas argued before the General Court, and that, therefore, a party may not, as a general rule, put forward for the first time before the Court of Justice a ground that it has not raised before the General Court. (
13
)
16.
However, the Court of Justice has clarified that an appellant may, in its appeal, argue grounds that are based on the judgment under appeal itself and seek to criticise, in law, its merits. (
14
)
17.
In this case, therefore, even if we were to hold, as the Commission contends, that the plea put forward by Sigma in its first ground of appeal constitutes a ‘new ground’ compared to those raised to support its action before the General Court, that would not be a sufficient basis in and of itself to declare that plea inadmissible.
18.
I also note that the arguments raised by Sigma in its first ground of appeal contain a precise and detailed criticism of the grounds of the judgment under appeal and are intended to challenge the interpretation and application of the WDFG judgment by the General Court. Consequently, they could not be put forward before that court. (
15
)
19.
On the basis of the above, I consider that Sigma's first ground of appeal should therefore be declared admissible.
(2) Merits
20.
The examination of the first ground of appeal requires a brief review of the salient passages of the judgment in Banco Santander and Santusa v Commission and the WDFG judgment.
21.
In the judgment in Banco Santander and Santusa v Commission, which annulled the decision at issue, the General Court held, first, that for the condition of selectivity to be satisfied, a category of undertakings which are exclusively favoured by the measure at issue must be identified in all cases and that, where that benefit is potentially available to all undertakings, as in the case of the measure at issue, the mere finding that a derogation from the common or ‘normal’ tax regime has been provided for cannot give rise to selectivity. (
16
) Second, the General Court held that not all tax differentiation involved the existence of aid and that, in order for tax differentiation to be classified as aid, it had to be possible to identify a specific category of undertakings which can be distinguished on account of their specific characteristics. (
17
)
22.
In the relevant passages of the WDFG judgment, the Court of Justice upheld the Commission’s appeal, which sought, among other aims, to contest the requirement imposed by the General Court to identify a group of undertakings with specific characteristics in order to demonstrate the selective nature of a national measure. After reviewing the three-step method used to analyse selectivity, the Court of Justice asserted that the measure at issue, because it was capable of conferring an advantage on all undertakings resident for tax purposes in Spain that carry out acquisitions of at least 5% shareholdings in companies resident for tax purposes outside that Member State, could be regarded as capable of constituting an aid scheme. It was therefore for the Commission to establish that that measure, notwithstanding that it confers an advantage of general application, confers the benefit of that advantage exclusively on certain undertakings or on certain sectors of activity. (
18
) The Court of Justice then observed that the General Court’s reasoning was based on a misapplication of the selectivity requirement and that, as this was a national measure conferring a tax advantage of general application, that condition is satisfied where the Commission is able to demonstrate that that measure is a derogation from the ordinary or ‘normal’ tax regime applicable in the Member State concerned, introducing, through its actual effects, differences in the treatment of operators, although the operators who qualify for the tax advantage and those who do not are, in the light of the objective pursued by that Member State’s tax system, in a comparable factual and legal situation. (
19
) According to the Court of Justice, the General Court therefore erred in law in concluding that the measure at issue, on the grounds that it did not affect any particular category of undertakings or the production of any particular category of goods, that it was applicable regardless of the nature of an undertaking’s activity and that it was accessible, a priori or potentially, to all undertakings that wanted to acquire shareholdings of at least 5% in foreign companies and that held those shareholdings without interruption for at least one year, had to be regarded not as a selective measure but as a general measure. (
20
) The Court of Justice also held that, contrary to the view of the General Court, the potentially selective nature of the measure at issue was in no way called into question by the fact that the essential condition for obtaining the tax advantage conferred by that measure is that there should be an economic transaction, more particularly an ‘entirely financial’ transaction, for which no minimum investment is required and which is available regardless of the nature of the business of the recipient undertakings. (
21
) The Court of Justice therefore concluded that the General Court had erroneously criticised the Commission’s findings in relation to the selectivity of the measure at issue while omitting to determine whether the Commission had in fact analysed the question and established that that measure was discriminatory. (
22
)
23.
In paragraphs 64 to 76 of the judgment under appeal, the General Court has applied the principles established by the Court of Justice in the WDFG judgment and has rejected the first complaint in Sigma’s single plea, in which it asserted that the measure at issue was not selective because it applied to all undertakings with corporate tax liability and did not restrict the benefit of that measure to a particular type of undertaking. In paragraph 69 of the judgment under appeal, the General Court has asserted, on the basis of the approach adopted by the Court of Justice in the WDFG judgment, that ‘a finding that the measure is selective is not necessarily the result of the impossibility for certain undertakings to benefit from the advantage provided for by the measure at issue on account of legal, economic or practical restrictions which prevent the performance of the transaction governing whether that advantage is granted, but may arise merely from the finding that a transaction exists which, although it is comparable to the transaction governing whether the advantage in question is granted, does not give rise to the right to that advantage’. The General Court continued, stating that this means that ‘a tax measure may be selective even though any undertaking may freely choose whether to perform the transaction governing whether the advantage provided for by that measure is granted’. In paragraph 70 of the judgment under appeal, the General Court states that ‘emphasis has therefore been placed on a concept of selectivity which is based on the distinction between undertakings which choose to perform certain transactions and other undertakings which choose not to perform them, and not on the distinction between the undertakings from the perspective of their specific characteristics’.
24.
It seems clear that, in the abovementioned paragraphs 69 and 70, the General Court gives a ‘directed’ interpretation of the WDFG judgment, highlighting the aspects that distinguish the approach adopted by the Court of Justice from that applied in the judgment in Banco Santander and Santusa v Commission, while indicating a preference for that latter approach. However, contrary to the position asserted by the appellant, I do not consider that these paragraphs are a sign of a misunderstanding by the General Court of the WDFG judgment, or an indication that the assertions contained in that judgment have influenced the General Court’s reasoning in a sense that is not in line with the criteria laid down in that judgment.
25.
First, it is in application of those criteria, cited in particular in paragraph 68 of the judgment under appeal, that the General Court concluded, in paragraph 75 of that judgment, and in line with the findings of the WDFG judgment, that the measure at issue, ‘which grants an advantage upon satisfaction of the condition that an economic transaction is performed, may be selective including where … any undertaking may freely choose whether to perform that transaction’, and therefore rejected the first complaint of Sigma’s sole plea.
26.
Secondly, contrary to Sigma’s assertion, paragraphs 69 and 70 of the judgment under appeal do not suggest that the General Court intended to claim that the selectivity of a national measure can be determined solely on the basis of the behaviour of the undertakings excluded from the advantage conferred by the measure in question, without taking into account the specific situations of those undertakings. In fact, those paragraphs merely emphasise that, on the basis of the WDFG judgment, a measure may be selective even where the obtaining of the advantage it confers depends not on the specific characteristics of the undertaking but on the transaction that it may or may not decide to carry out. (
23
)
27.
I do not consider that this assertion conflicts with the WDFG judgment. Indeed, according to that judgment, a domestic measure may be selective even when it does not identify ex ante a particular category of beneficiaries and when all the undertakings established in the territory of the Member State concerned, regardless of their size, legal form, sector of activity or other specific characteristics, potentially have access to the benefit conferred by that measure on condition that they make a specific type of investment. The General Court did not therefore err when it essentially held that, according to the WDFG judgment, when assessing the selective nature of a measure account should also be taken of the existence of a disparity of treatment that can be linked to the behaviour of the undertakings.
28.
It follows from all of the foregoing considerations that Sigma’s first ground of appeal must be rejected as being without foundation.
2.
The second ground of appeal
29.
By its second ground of appeal, which is subdivided into four limbs, Sigma claims that the General Court erred when it held that the potential existence of obstacles to cross-border business combination did not rule out the selective nature of the measure at issue.
(a)
First limb of the second ground of appeal
(1) Arguments of the parties
30.
The appellant claims, first, that the General Court concluded in error that the objective of the tax deduction of goodwill is to establish the tax and accounting treatment of goodwill on the same footing, irrespective of whether the undertaking acquires shareholdings in resident or non-resident companies. The General Court therefore not only lost sight of the actual aim of the tax treatment of goodwill, which is to promote fiscal neutrality by removing obstacles to cross-border combinations of undertakings, but it also substituted its own reasoning for that of the decision at issue, since none of the passages in the decision at issue contained such a conclusion. The appellant asserts, second, that, in Spanish law, the tax and accounting treatment of goodwill, although linked, remain separate and apply different rules and criteria. Third, the appellant notes that, in paragraphs 103 and 104 of the judgment under appeal, the General Court itself recognises that accounting goodwill may arise without a merger, namely without such a booking having a tax effect. Fourth, the appellant states that between 2008 and 2015, Spanish law did not permit the accounting amortisation of goodwill, while tax deductions of goodwill resulting from mergers were allowed. According to the appellant, it was because of an incorrect assessment of the objective pursued by the measure at issue that the General Court confirmed the decision made by the Commission to identify the reference system in the tax treatment of goodwill, ruling out the possibility that that system could be represented by the measure at issue. Fifth, the appellant claims that undertakings that acquire shareholdings in Spanish companies may not only freely create a business combination and thus benefit from the tax deduction of goodwill, but they also benefit from additional advantages, such as access to a tax integration system, to which undertakings acquiring foreign shareholdings do not have access. Referring to the acquisitions carried out by it in the United States and Peru, the appellant highlights the fact that, even if we were to accept that there are no legal obstacles to business combination, the simple fact that Spanish and foreign undertakings have different legal or corporate forms constitutes an obstacle in and of itself. Undertakings that acquire shareholdings in resident companies are therefore in a different legal and factual situation than those that acquire shareholdings in foreign companies, in particular if, as is the case for the appellant, these are companies in third countries and controlling interests.
31.
The Commission has raised a plea of inadmissibility in respect of the first limb of the second ground of appeal for the same reasons stated in point 12 of this Opinion, and asserts that it has no foundation. Contrary to Sigma’s contention, the measure at issue does not seek to guarantee tax neutrality and is not proportionate, because it also applies to cross-border acquisitions of minority shareholdings that do not, in any case, enable business combination. It therefore follows that the General Court was correct in concluding that the alleged existence of obstacles to business combination in Peru and the United States is not relevant.
(2) Evaluation
32.
The plea of inadmissibility raised by the Commission must be rejected for the same reasons indicated in point 13 of this Opinion.
33.
As to the substance, we should first note the reasoning followed by the General Court in paragraphs 79 to 111 of the judgment under appeal, against which the complaints raised by Sigma are directed. That reasoning can be subdivided into two limbs.
34.
The first limb, which includes paragraphs 79 to 95, generally addresses the question of the methodology applicable to determining the reference system in the context of the first step of the examination of selectivity. In paragraph 85, the General Court asserts that the delimitation ratione materiae of that reference system is, in principle, in line with the measure analysed and, in paragraph 89, preceded by an analysis of the judgments of 8 September 2011, Paint Graphos (
24
) (‘the Paint Graphos judgment’), and of 8 September 2011, Commission v Netherlands (
25
) (‘the judgment in Commission v Netherlands’), the General Court notes that ‘in addition to there being a link between the purpose of the measure at issue and that of the normal regime, the examination of whether situations falling under that measure and situations falling under that regime are comparable also enables the scope ratione materiae of that regime to be defined’. The General Court continues by stating, in paragraphs 90 and 91, that, because it is the comparability of those situations that also enables the finding that a derogation exists where situations which fall under the measure at issue are treated differently from those which fall under the normal regime, an ‘overall reasoning with regard to the first two steps of the method [for analysing selectivity] may, in some cases, result in both the normal regime and the existence of a derogation being determined’.
35.
In the second part of its reasoning, which covers paragraphs 96 to 111 of the judgment under appeal, in application of the methodology discussed in paragraphs 95 to 108 of that judgment, the General Court has examined whether, in the light of the objective pursued by the normal regime identified by the Commission, undertakings acquiring shareholdings in resident companies and those acquiring shareholdings in non-resident companies are in comparable factual and legal situations. The assessment of comparability, which is normally carried out in the second step of the selectivity analysis, is therefore brought forward to the first step, and the General Court makes the correct determination of the reference system dependent on its outcome (see paragraph 96 of the judgment under appeal). Following that assessment, the General Court concludes that ‘undertakings which acquire shareholdings in non-resident companies are, in the light of the objective pursued by the tax treatment of goodwill, in a comparable factual and legal situation to that of undertakings which acquire shareholdings in resident companies’ (paragraph 109 of the judgment under appeal) and that the Commission rightly considered‘under the normal regime, the tax treatment of goodwill and not the tax treatment of financial goodwill introduced by the measure [at issue]’ (paragraph 110 of the judgment under appeal). In paragraph 111 of the judgment under appeal, the General Court concludes this section of its reasoning by stating that ‘by allowing the amortisation of goodwill in respect of the acquisition of shareholdings in non-resident companies without there being a business combination’, the measure at issue ‘applies to those transactions different treatment to that afforded to the acquisition of shareholdings in resident companies, even though both types of transaction are, in the light of the objective pursued by the normal regime, in comparable legal and factual situations’.
36.
By way of preliminary comment, I would point out that Sigma seems to consider that the reference system identified by the General Court as the tax treatment of goodwill is consistent with the system adopted by the Commission in the decision at issue and does not therefore invoke a substitution of grounds on this point, unlike the appellants in the parallel proceedings indicated in footnote 4 of the present Opinion. Furthermore, Sigma has not raised any complaints seeking to contest the methodology described by the General Court in paragraphs 79 to 95 of the judgment under appeal, in respect of which I will merely refer to the observations made in point 73 of my Opinion in Joined Cases C‑51/19 P and C‑64/19 P, delivered today.
37.
With regard to Sigma’s arguments seeking to contest the conclusion reached by the General Court in paragraph 108 of the judgment under appeal whereby the objective of the reference system is to ensure a degree of consistency between the tax treatment of goodwill and its accounting treatment, I believe these arguments should be declared inadmissible. That conclusion is based on findings stemming from the General Court’s interpretation of the tax and accounting principles under Spanish law relating to goodwill and thus not open to review by the Court of Justice on appeal, unless distortion of those principles is alleged and proven. (
26
)
38.
However, in my view, the complaint based on the substitution of grounds of the decision at issue should be upheld in relation to the identification of the objective of the reference system. Indeed, it must be pointed out that in no part of the decision at issue does the Commission mention that the objective of the reference system it identified is to maintain a degree of consistency between the tax treatment and accounting treatment of goodwill. The General Court does uphold the findings of the decision at issue where it states that the tax treatment of goodwill is organised on the basis of the criterion related to whether or not a business combination has arisen (see paragraphs 103 and 105) and where it explains, citing recitals 28 and 123 of that decision, that this is due to the fact that, following an acquisition or contribution of the assets constituting independent businesses or even from a merger or a de-merger, ‘goodwill appears, … as a separate intangible asset, in the books of the combined business’ (see paragraph 104 of the judgment under appeal). Similarly, it is consistent with the Commission’s finding in the decision at issue (see recitals 121 to 124 in particular) that the tax treatment of goodwill is in line with accounting logic, as set out in paragraph 103 of the judgment under appeal. However, it is entirely independently of that decision and on the basis of its own interpretation of the Spanish tax and accounting rules that the General Court concludes that the objective of the rules on the amortisation of financial goodwill, as laid down in the Spanish law on corporate tax, is to ensure consistency between the tax and accounting treatment of goodwill and that, in view of that objective, the situation of undertakings investing in Spanish companies is comparable to that of undertakings investing in non-resident companies.
(3) Consequences of the merits of the complaint relating to a substitution of grounds
39.
On this point, I would note first of all that, in accordance with the case-law referred to in points 13 to 15 of my Opinion in Joined Cases C‑51/19 P and C‑64/19 P, delivered today, the assessment of comparability to be carried out in the context of the second step of the selectivity analysis must be conducted in the light of the objective of the reference system and not that of the measure at issue.
40.
In the decision at issue, while stating that the measure at issue also pursued an objective aimed at increasing the international competitiveness of Spanish undertakings (see recital 138), the Commission nevertheless examined whether it could be justified in the light of the principle of fiscal neutrality, ruling out such a justification on two grounds. First, it rejected the Kingdom of Spain’s argument that a different treatment of foreign investment was necessary owing to the obstacles to cross-border mergers, considering that neither general obstacles to mergers nor specific obstacles in the countries examined had been demonstrated. This reasoning is discussed in recitals 110 to 118 of the decision at issue, in the section relating to the definition of the reference system. Second, the Commission held that, in any case, the measure at issue was not proportionate (see recitals 132 to 140 of the decision at issue).
41.
Conversely, it is not apparent from reading the decision at issue that the Commission attributed the objective of fiscal neutrality claimed by Sigma before the Court of Justice to the reference system it had identified. Without explicitly identifying the objective of that system, it considered, in essence, that undertakings investing in domestic companies and those investing in foreign companies were in a comparable situation with regard to the scheme introduced by the measure at issue, which provided, by way of derogation from the reference system, for the amortisation of financial goodwill even if the acquisition of shareholdings was not followed by a merger. (
27
) In other words, the Commission took the view that the differentiation, introduced by the measure at issue, between undertakings acquiring shareholdings in resident companies, which necessarily had to carry out a merger in order to amortise goodwill, and undertakings acquiring shareholdings in foreign companies, which automatically benefited from the possibility of making such a deduction, irrespective of whether the transaction preceded a merger and whether there was evidence of actual obstacles to such a merger, could amount to discrimination, if not justified by the Kingdom of Spain.
42.
While such a course of action may not seem entirely consistent with the three-step analysis of selectivity as set out in the most recent case-law since the decision at issue, starting with the Paint Graphos judgment, I do not consider that the decision at issue should be set aside for that reason alone.
43.
The measure at issue is, as the Kingdom of Spain clearly states, a corrective measure, which serves to remedy the adverse effects of the tax treatment of goodwill in general, according to which amortisation is allowed only in the case of business combinations (or in the case of acquisition of control and consolidation of accounts). It therefore tends, by its very nature, to reserve favourable treatment for a certain category of undertakings, in particular those which make a certain type of investment, as the Court of Justice held in paragraphs 62 and 119 of the WDFG judgment, on the assumption that those undertakings would otherwise be penalised by the application of the normal regime. However, regardless of the systematic framework imposed by the case-law, I believe that the differentiations introduced by measures of this type must generally be assessed not only by examining the veracity of the factual assumptions on which they are based, but also in the light of their proportionality and ability to achieve the objective pursued. This comes under the third step of the selectivity analysis, which is aimed at establishing whether the unequal treatment introduced by a prima facie selective derogating measure is justified by the nature or structure of the tax system of which it forms part. Yet such an examination could be dispensed with automatically if it were sufficient, in the context of the second step of the selectivity analysis, to cite as the objective of the reference system – in the light of which the comparability of the situations subject to the differentiation is assessed – the general objective of fiscal neutrality, which also covers the specific objective of the corrective action implemented by the measure examined.
44.
Fiscal neutrality is an objective of any tax regime, and there is no doubt that this principle also underpins the tax regime for goodwill in the context of Spanish corporate tax. Even so, as the General Court correctly held in paragraph 131 of the judgment under appeal, the objective pursued by that scheme ‘is not to enable undertakings to benefit from the tax advantage of the amortisation of goodwill when they encounter difficulties which prevent them from combining businesses’. To uphold Sigma’s complaint would thus be to admit, contrary to recent case-law on selectivity, that the assessment of comparability in the context of the second step of the selectivity analysis must be conducted in the light of the objective of the measure at issue, and not that of the reference system, irrespective of whether that objective was not explicitly identified in the decision at issue and even where it must, as submitted by Sigma, be identified as fiscal neutrality.
(4) Conclusions on the first limb of Sigma’s second ground of appeal
45.
In the light of the foregoing considerations, I propose that the Court of Justice should find that the General Court misinterpreted the decision at issue by substituting its grounds for those of the decision, but that such an error cannot bring about the annulment of the judgment under appeal, since Sigma’s complaint in relation to which that error was committed must be rejected.
(b)
Second limb of the second ground of appeal
(1) Arguments of the parties
46.
The appellant contends that the General Court erred in rejecting the possibility of considering the measure at issue as an autonomous reference system on the basis of the Opinion of Advocate General Warner in Italy v Commission (
28
) (‘the Opinion of Advocate General Warner’). Indeed, contrary to the measure in question in that case, the measure at issue does not seek to resolve a specific problem in a given industrial sector, but, rather, applies to all undertakings liable for corporate tax. The General Court also erred in so far as it failed to consider the measure at issue as a general measure intended to offer economic operators a practical solution that would treat the tax treatment of cross-border transactions in the same way as laid down in Article 89(3) and Article 11(4) of the TRLIS for domestic transactions, to ensure that investment decisions are made by undertakings on the basis of economic and not tax-related criteria. The measure at issue is clearly a general economic policy measure intended to preserve the principle of fiscal neutrality. In the alternative, the appellant asserts that the measure at issue should be considered to be justified on the basis of the logic of the tax system, in the light of the principle of fiscal neutrality.
47.
The Commission has raised a plea of inadmissibility in respect of the second limb of the second ground of appeal for the same reasons stated in point 12 of this Opinion, and asserts that it has no foundation. Contrary to the appellant’s contention, the measure at issue would not guarantee fiscal neutrality because it grants acquisitions of shareholdings in foreign companies more favourable conditions than shareholdings in domestic companies. For the former, in fact, the amortisation of goodwill is subject to the sole condition that the acquisition involve a 5% shareholding in the capital of the company acquired while for the latter, business combination is also required.
(2) Evaluation
48.
We must first of all reject the plea of inadmissibility raised by the Commission for the same reasons indicated in point 13 of the present Opinion.
49.
As to the substance, to the extent that Sigma is contesting the reference to the Opinion of Advocate General Warner, set out in paragraphs 114 and 115 of the judgment under appeal, I note, first, that its arguments do not seek to criticise, as such, the assertion, which the General Court derives from that Opinion, that a tax measure cannot constitute an autonomous reference system if its ‘objective was to solve a specific problem’. (
29
) Rather, it contests the conclusion – which the General Court reaches in paragraph 138 of the judgment under appeal – that the removal of the effects of obstacles to cross-border business combinations regarding the tax treatment of goodwill constitutes a ‘specific problem’, in addition to the present case being placed on the same footing as the one at issue in that Opinion.
50.
I also observe that, contrary to the appellant’s contention, it is not in view of the ‘specific’ nature of the objective pursued by the measure at issue that the General Court ruled out that that measure could constitute a reference system in its own right. Rather – as is clear from paragraphs 121 and 122 of the judgment under appeal – the General Court reached that conclusion in consideration of the fact that the measure constituted ‘an exception to the general rule that only business combinations may lead to the amortisation of goodwill’, intended to remedy the adverse effects created by applying that rule. This conclusion was supported by the finding that the measure did not make the transaction consisting in the acquisition of shareholdings a new general criterion for the tax treatment of goodwill, but ‘reserve[d] entitlement to the amortisation of goodwill solely to the acquisition of shareholdings in non-resident companies’ (see paragraph 122 of the judgment under appeal). It is not therefore the ‘limited’ nature of the objective pursued by the measure at issue that the General Court ultimately held to be decisive, despite the statement made at the end of its analysis in paragraph 125 of the judgment under appeal.
51.
In those circumstances, the arguments put forward by the appellant, first, objecting to the present case being placed on the same footing as the one in question in the Opinion of Advocate General Warner and, second, seeking to demonstrate that the objective of the measure at issue is to safeguard the principle of fiscal neutrality, and not to solve a ‘specific problem’, are, in my view, insufficient to vitiate the reasoning followed by the General Court in paragraphs 112 to 127 of the judgment under appeal.
52.
Finally, I should point out that, to the extent that Sigma contends that the measure at issue should be considered to be non-selective because it is available to all undertakings liable for corporate tax, this casts doubt directly on the WDFG judgment, in which the Court of Justice held that that measure, because it was capable of procuring an advantage for all undertakings resident for tax purposes in Spain that carry out acquisitions of at least 5% shareholdings in undertakings resident for tax purposes outside that Member State, could be considered as constituting State aid, despite procuring a general advantage, where the discriminatory nature of the measure could be demonstrated. (
30
)
53.
In the light of all of the foregoing considerations, I consider that the second limb of Sigma’s second ground of appeal must be rejected as unfounded.
(c)
Third limb of the second ground of appeal
(1) Arguments of the parties
54.
The third limb of Sigma’s second ground of appeal, raised in the alternative, is directed against paragraph 134 of the judgment under appeal in which, after having recalled that ‘the normal regime provides for the amortisation of goodwill only in the case of a business combination and that, by allowing that amortisation in respect of the acquisition of shareholdings in non-resident companies, the measure at issue applies to those transactions different treatment to that afforded to the acquisition of shareholdings in resident companies, even though both types of transaction are, in the light of the objective pursued by the normal regime, in comparable legal and factual situations’, the General Court held that ‘the measure at issue introduces … a derogation from that regime, as the Commission rightly found’. According to the appellant, even if we were to suppose that the reference system as defined by the Commission and confirmed by the General Court were correct, there is nothing to permit the General Court to conclude that a derogation from the reference system is possible because undertakings that acquire shareholdings in companies resident in Spain and those that acquire shareholdings in foreign companies are not in a comparable situation, given the existence of barriers to cross-border combinations.
55.
The Commission has submitted a plea of inadmissibility of the third limb of the second ground of appeal for the reasons stated in point 12 of this Opinion, and contends that that ground is unfounded, since the question of the existence of obstacles to business combination has no relevance for the purpose of determining comparability.
(2) Evaluation
56.
The plea of inadmissibility raised by the Commission must be rejected for the same reasons indicated in point 13 of this Opinion.
57.
As to the substance, I note first of all that the General Court has ruled out the relevance of the potential existence of obstacles to cross-border combinations for the purposes of determining comparability of undertakings acquiring shareholdings in companies resident in Spain and undertakings acquiring shareholdings in foreign companies on the basis of the grounds set out in paragraphs 128 to 133 of the judgment under appeal (not cited in Sigma’s complaint), and that paragraph 134 of that judgment, against which that complaint is directed, is set out for the sake of completeness (‘a mayor abundamiento’, in Spanish, the authentic language of the case, and ‘au surplus’, in French).
58.
To the extent that Sigma’s arguments should be regarded as being intended to contest the conclusions reached by the General Court in paragraphs 108 and 111 of the judgment under appeal, they overlap with the arguments developed to support the complaints put forward by that party in the first limb of the second ground of appeal, and reference should therefore be made to that section of the discussion.
59.
On the basis of the above considerations, I consider that the third limb of Sigma’s second ground of appeal should also be rejected.
(d)
Fourth limb of the second ground of appeal
(1) Position of the parties
60.
The fourth limb of Sigma’s second ground of appeal seeks to contest paragraph 155 of the judgment under appeal in which the General Court concluded, following an analysis of paragraphs 147 to 154 of the judgment under appeal, that the advantage deriving from the measure at issue had not been shown to benefit undertakings faced with the difference in treatment that that measure is said to remedy and, therefore, the ‘neutralising effects’ of the measure at issue had not been established. According to the appellant, if the adjustment provided by that measure did not exist, the principle of fiscal neutrality would be infringed, because this would consolidate situations in which the obstacles to acquisitions in foreign companies would prevent the amortisation of goodwill under the same conditions as those to which acquisitions of shareholdings in resident companies are subject. With respect to the existence of obstacles to mergers with American and Peruvian companies, Sigma refers to the information already submitted in the action before the General Court. In terms of the finding of the General Court in paragraph 154 of the judgment under appeal, whereby the documents in the case file did not show that the Kingdom of Spain ‘has established that undertakings that wish to carry out cross-border mergers and cannot do so on account of – in particular, legal – obstacles to business combinations, acquire shareholdings by default in non-resident companies or, at least, maintain the shareholdings that they already have’, Sigma asserts that such a test does not appear in the decision at issue and this would therefore represent a further substitution of the grounds of that decision by the General Court. In conclusion, according to Sigma, the measure at issue is justified by the logic of the tax system and, in particular, the principle of fiscal neutrality.
61.
The Commission has raised a plea of inadmissibility in respect of the fourth limb of the second ground of appeal for the same reasons stated in point 12 of this Opinion, and asserts that it has no foundation, using arguments identical to those already advanced in point 44 of this Opinion.
(2) Evaluation
62.
We must first of all reject the plea of inadmissibility raised by the Commission for the same reasons indicated in point 13 of this Opinion.
63.
As to the substance, I note that in paragraphs 149 to 156 of the judgment under appeal, the General Court, having established that the measure at issue ‘is necessarily based on the premiss that undertakings that wish to carry out cross-border mergers and cannot do so on account of … obstacles to business combinations, acquire shareholdings by default in non-resident companies or, at least, maintain the shareholdings that they already have’ (paragraph 149 of the judgment under appeal), concluded that the Kingdom of Spain, which was required to justify the derogation from the reference system by the measure at issue, had failed to establish that premiss. The General Court essentially held that, since the acquisition of shareholdings is a separate transaction from a merger and not an alternative to it, the measure at issue in practice conferred an advantage on undertakings that intend to invest in foreign companies but do not necessarily intend to merge – in other words, undertakings other than those that, according to the Kingdom of Spain, would suffer the adverse consequences of the general rules on the amortisation of goodwill.
64.
In that regard, I note first of all that, although in the paragraphs contested by the complaint under examination, the General Court concluded that the Kingdom of Spain had failed to demonstrate that the measure at issue offset the alleged adverse effects of the normal regime, it nevertheless continued its analysis on the assumption that such demonstration had been provided (see paragraphs 157 and 165 of the judgment under appeal). As is expressly stated in paragraph 166 of the judgment under appeal, the grounds against which that complaint is directed are therefore not the only grounds on which the General Court bases its conclusion that the Commission did not err in finding that the Kingdom of Spain had failed to justify the differentiation introduced by the measure at issue. It follows that, even if the complaint in question were upheld, that conclusion would still be supported by other grounds (set out in paragraphs 145 to 165 of the judgment under appeal). It is settled case-law that, at the appeal stage, a plea directed against a ground included only for the sake of completeness in the judgment under appeal, the operative part of which is sufficiently based on other points of law, is ineffective and must therefore be rejected. (
31
)
65.
I note, however, that while it is true that the reasoning set out in paragraphs 149 to 156 of the judgment under appeal is not expressed in the same terms in the decision at issue, it is fully in line with the logic on the basis of which the Commission found that the measure at issue was inconsistent with and disproportionate to the alleged objective of offsetting the adverse effects of the normal regime of amortisation of goodwill for undertakings that acquire shareholdings in foreign companies and are unable to carry out cross-border mergers. (
32
) I do not therefore believe that the General Court made a substitution of the grounds of the decision at issue, as the appellant alleges.
66.
For the above reasons, the fourth limb of Sigma’s second ground of appeal is, in my opinion, irrelevant and, in the alternative, unfounded.
C. Request for substitution of grounds by the Commission
67.
In the event that the Court of Justice should consider Sigma’s appeal to be well founded, the Commission asks the Court of Justice to substitute the grounds and declare the proceedings before the General Court inadmissible. On that point, I note that the Commission raised a plea of inadmissibility in relation to the proceedings brought by Sigma before the General Court, and consideration of that plea was reserved for the final judgment. On the basis of the judgment of 26 February 2002, Council v Boehringer (
33
) (‘the Boehringer judgment’), the General Court nevertheless held, in paragraph 26 of the judgment under appeal, that it was justified in examining the action on the merits without ruling on that plea. (
34
)
68.
Since I propose that the Court of Justice should dismiss Sigma’s appeal, I will only make a few brief points below on the merits of the Commission’s request, which essentially seeks an examination of the plea of inadmissibility raised by that party before the General Court.
69.
In essence, the question is whether, in order to prove that it has locus standi to act against a decision whereby the Commission declares a system of aid to be incompatible with the internal market, where that system grants a tax deduction and requires the recovery of aid paid in implementation of that decision, an undertaking can simply rely on and produce, on the one hand, the adjustments to the profit and loss account made by it in application of the deduction in question as part of a self-assessment system showing a negative taxable base, and, on the other hand, the adjustments made by the tax authorities as part of the self-assessment inspection procedure and motivated by the adoption of the Commission’s decision.
70.
Before the General Court, the Commission contended that Sigma lacked locus standi and an interest in bringing proceedings against the decision at issue, because it was not an actual beneficiary of aid granted under the system of aid introduced by the measure at issue and was neither required to return such aid nor exposed to a risk that aid would be recovered, as is required by the case-law. (
35
) According to the Commission, a tax system that grants a tax deduction confers an advantage only where the taxpayer makes profits and obtains a tax reduction. In this case, Sigma has not obtained any tax reduction because its taxable base was negative. The fact that the decision at issue established the reduction of the negative taxable base that Sigma was authorised to offset against potential profits in subsequent financial years was not of itself sufficient to demonstrate its capacity as a beneficiary required to repay the aid, because, in such circumstances, the effect of the decision at issue would merely be that Sigma would not be able to apply the deduction in future. The appellant responded to the plea of inadmissibility raised by the Commission by stating that it had benefited from individual aid for transactions carried out in Peru and the United States, (
36
) that it appeared on the list of beneficiaries of the aid in question and that the aid was recovered by adjustment of the negative taxable bases by the tax authorities in application of the decision at issue.
71.
For my part, I note that, before the General Court, Sigma produced, as an attachment to its action, a ‘settlement proposal’ from the Alcobendas Tax Office, in which the tax authority expressly indicates that it has not performed any checks on the veracity of the acquisition transactions indicated in Sigma’s self-assessment document, but has merely examined the documentation attached to that document for the purpose of implementing the decision at issue. In that proposal, which does not appear to be a final, binding document, the tax authority indicates that it has modified the taxable base declared by Sigma because the adjustments made by that party in application of the measure at issue in relation to the acquisition of a shareholding in a Peruvian company should be considered incorrect, given that the measure was considered to be State aid in the decision at issue. As an annex to its comments on the plea of inadmissibility, Sigma has also produced two provisional tax notices that confirm the adjustments made to the self-assessment document. Sigma’s contentions are therefore confirmed by the documents, contrary to the assertions made by the Commission in its response. Likewise, I note that the Commission incorrectly asserted before the General Court that Sigma’s situation could be likened to that of the applicant in the case that gave rise to the judgment of 8 March 2012, Iberdrola v Commission, (
37
) because, as emerges from paragraph 29 of that judgment, that applicant had not asked in any of its tax returns for the measure at issue to apply.
72.
However, I question whether an undertaking can be considered to be an actual beneficiary of a tax deduction granted under a system of aid that has been declared incompatible even where that beneficiary has not received a tax reduction but, rather, only a tax credit to be applied in the course of subsequent financial years if profits accrue (
38
) and whether that capacity [as an actual beneficiary] can be sufficiently proven by a measure that merely acknowledges the adjustment made by the undertaking concerned during self-assessment without verifying that the material conditions for application of the deduction in question have been met.
73.
That said, I note that, in the judgment of 28 June 2018, Andres v Commission (
39
) (‘the Andres judgment’), the Court of Justice clarified that the fact that an applicant may fall within or outside the category of actual or potential recipients of individual aid granted under an aid scheme declared incompatible with the internal market by a Commission decision is not decisive as regards determining whether the applicant is individually concerned by that decision, where it is in any event established that the applicant is otherwise affected by it by reason of certain attributes which are peculiar to it or a factual situation which differentiates it from all other persons. If it rules on the Commission’s plea of inadmissibility and reaches the conclusion that Sigma cannot be considered to be an actual beneficiary of the advantage provided by the measure at issue, the Court of Justice must therefore assess whether its situation is in any case such as to distinguish it from other operators that are affected only as potential beneficiaries of that measure and, in particular, whether the ‘tax credit’ that it claims to have accrued by applying the measure at issue in self-assessment confers on it, under Spanish law, (
40
) a ‘right to a tax saving’, (
41
) as recognised for the applicant in the case that gave rise to the Andres judgment. In this regard, I will simply state that, in that case, the General Court held that the applicant had, in a financial year preceding the opening of the formal investigation procedure, made taxable profits from which it claims to have deducted the losses carried forward under the restructuring clause applying in that case, and that binding information received from the German tax authorities showed that it met the conditions for applying that clause. (
42
)
74.
With regard to Sigma’s alleged absence of interest in bringing proceedings, I note that, according to the constant case-law of the Court of Justice, an action for annulment brought by a natural or legal person is admissible only where that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party that brought it. (
43
) An applicant’s interest in bringing proceedings must be vested and current. (
44
) It may not concern a future and hypothetical situation. (
45
) In this case, it is legitimate to ask whether the criterion that the interest in bringing proceedings must be ‘vested and current’ is met, given that the application of the measure at issue to the appellant’s situation, assuming it is accepted, would have caused not a reduction in the tax burden, with the consequent exposure to the risk that it would need to pay the tax due if the deduction were not applied, but only ‘the recognition of the future application of negative taxable bases’ to be offset against any profits over a given period of time.
V. Costs
75.
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Pursuant to Article 138(1) of those rules, which are applicable, mutatis mutandis, under Article 184(1) of the same rules, to the procedure before the Court of Justice on an appeal against a decision of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Because I suggest that the Court of Justice should dismiss Sigma’s appeal, that party must, in my view, be ordered to pay costs, in accordance with the corresponding application from the Commission. Under Article 184(4) of the Rules of Procedure of the Court of Justice ‘where the appeal has not been brought by an intervener at first instance, he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that he shall bear his own costs’. I therefore suggest that the Court of Justice should declare that the Federal Republic of Germany must bear its own costs.
VI. Conclusion
76.
On the basis of all of the foregoing, I propose that the Court should dismiss the appeal, order Sigma to pay the costs and declare that the Federal Republic of Germany must bear its own costs.
(
1
)	Original language: Italian.
(
2
)	T‑239/11, not published, EU:T:2018:781.
(
3
)	Decision C 45/07 (ex NN 51/07, ex CP 9/07) (OJ 2011 L 135, p. 1). That decision has been rectified on two occasions, on 3 March 2011 and on 26 November 2011.
(
4
)	C 45/07 (ex NN 51/07, ex CP 9/07) (OJ 2011 L 7, p. 48). The other cases, on which I am presenting my Opinions today, are Joined Cases C‑51/19 P, World Duty Free Group v Commission and C‑64/19 P, Spain v Commission; C‑53/19 P, Banco Santander and Santusa v Commission and C‑65/19 P, Spain v Commission; and Cases C‑52/19 P, Banco Santander v Commission; C‑54/19 P, Axa Mediterranean v Commission; and C‑55/19 P, Proseguor Compañía de Seguridade v Commission.
(
5
)	OJ 2007 C 311, p. 21 (‘the opening decision’).
(
6
)	BOE No 61 of 11 March 2004, p. 10951.
(
7
)	Goodwill is defined in recital 27 of the decision at issue as the ‘value of a well-respected business name, good customer relations, employee skills, and other such factors expected to translate into greater than apparent earnings in the future’, corresponding to ‘the price paid for the acquisition of a business in excess of the market value of the assets constituting the business’. On the basis of Spanish accounting standards, this should be booked as a separate intangible asset as soon as the acquiring company takes control of the target company.
(
8
)	Recital 29 of the decision at issue states that ‘financial goodwill’, as used in the Spanish tax system, is the goodwill that would have been booked if the shareholding company and the target company had merged.
(
9
)	Article 1(2) of the decision at issue excluded from the declaration of incompatibility and from the recovery order the tax reductions that the beneficiaries had enjoyed in respect of extra-EU acquisitions under the measure at issue ‘which are related to rights held directly or indirectly in foreign companies fulfilling the relevant conditions of the aid scheme by 21 December 2007, apart from the condition that they hold their shareholdings for an uninterrupted period of at least 1 year’. The Commission took the view that until that date (corresponding to the publication in the Official Journal of the decision to initiate the formal investigation procedure), the beneficiaries of the measure at issue had a legitimate expectation that the measure was lawful (see recitals 186 to 202 of the decision at issue).
(
10
)	T‑399/11, EU:T:2014:938.
(
11
)	T‑219/10, EU:T:2014:939.
(
12
)	C‑20/15 P and C‑21/15 P, EU:C:2016:981.
(
13
)	See, among others, judgments of 1 February 2007, Sison v Council (C‑266/05 P, EU:C:2007:75, paragraph 95), and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 38).
(
14
)	See judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission (C‑176/06 P, not published, EU:C:2007:730, paragraph 17); of 10 April 2014, Commission v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 102); of 20 December 2017, EUIPO v European Dynamics Luxembourg and Others (C‑677/15 P, EU:C:2017:998, paragraph 28); of 6 September 2018, Czech Republic v Commission (C‑4/17 P, EU:C:2018:678, paragraph 24); and, lastly, of 26 February 2020, EEAS v Alba Aguilera and Others (C‑427/18 P, EU:C:2020:109, paragraph 54).
(
15
)	See, to that effect, judgment of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 60).
(
16
)	See, in particular, paragraphs 48 and 49, 57 and 66 of the judgment in Banco Santander and Santusa v Commission.
(
17
)	See paragraphs 71 and 72 of the judgment in Banco Santander and Santusa v Commission.
(
18
)	See paragraph 62 of the WDFG judgment.
(
19
)	See paragraph 67 of the WDFG judgment.
(
20
)	See paragraph 69 of the WDFG judgment.
(
21
)	See paragraph 81 of the WDFG judgment.
(
22
)	See paragraph 93 of the WDFG judgment.
(
23
)	I also note that, in paragraphs 69 and 70 of the judgment under appeal, the General Court makes clear reference to the choice between acquisitions of domestic or foreign shareholdings as the basis for obtaining the advantage conferred by the measure at issue and not to the decision as to whether to merge with the company acquired, which establishes whether it is possible to amortise goodwill for undertakings excluded from application of the measure at issue.
(
24
)	C‑78/08 to C‑80/08, EU:C:2011:550.
(
25
)	C‑279/08 P, EU:C:2011:551.
(
26
)	See Andres judgment, paragraph 78, and, in the same vein, judgments of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraph 79 and the case-law cited); of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission (C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 98); and of 20 September 2018, Spain v Commission (C‑114/17 P, EU:C:2018:753, paragraph 75). See, to the same effect, points 90 and 91 of my Opinion in Joined Cases C‑51/19 P and C‑64/19 P, delivered today.
(
27
)	Various passages in the decision at issue can be interpreted in this sense. See, in particular, recitals 89 to 91.
(
28
)	173/73, EU:C:1974:52, p. 728.
(
29
)	The Opinion of Advocate General Warner referred to above contains a more detailed assessment of the measure in question in Case 173/73, which consists of a temporary reduction of certain social security charges for the textile industry so as to reduce the imbalance that the previous system entailed for sectors with a high proportion of female workers. Advocate General Warner ruled out the introduction of an autonomous tax system by that measure not only because it was intended to address the situation in a specific industrial sector, but also because it was for a limited period, formed an integral part of a law for the ‘restructuring, reorganisation and conversion’ of the industrial sector in question, and was not based on general criteria that took account of the proportion of female workers in different industries.
(
30
)	See, in particular, paragraphs 62 and 93 of the WDFG judgment.
(
31
)	See, for example, judgment of 21 December 2011, ACEA v Commission (C‑319/09 P, not published, EU:C:2011:857, paragraph 120 and the case-law cited).
(
32
)	See, in particular, recital 106 of the decision at issue, cited in paragraph 156 of the judgment under appeal. See also recital 139 of that decision.
(
33
)	C‑23/00 P, EU:C:2002:118, paragraph 52.
(
34
)	The reversal of the logical or natural order for examining actions resulting from application of the Boehringer case-law in the event that the EU judicature rejects an action on its merits even where a plea of inadmissibility has been raised – in particular if it relates to public policy or is submitted in a separate document requesting a ruling without involving the discussion on the merits – has been the subject of some criticism. See, for example, Opinions of Advocate General Jääskinen in Switzerland v Commission (C‑547/10 P, EU:C:2012:565, points 46 to 54); of Advocate General Bot in Philips Lighting Poland and Philips Lighting v Council (C‑511/13 P, EU:C:2015:206, points 50 to 67); of Advocate General Mengozzi in SNCF Mobilités v Commission (C‑127/16 P, EU:C:2017:577, point 163); and of Advocate General Ruiz-Jarabo Colomer in Council v Boehringer (C‑23/00 P, EU:C:2001:511, points 30 to 36). Despite these criticisms, the Boehringer case-law continues to be applied both by the General Court (see, most recently, judgment of 11 November 2020, AV and AW v Parliament (T‑173/19, not published, EU:T:2020:535, paragraph 42), and by the Court of Justice (for a recent application in an appeal, see judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:989, paragraph 68).
(
35
)	According to established case-law, the actual beneficiaries of individual aid granted under a system of aid of which the Commission has ordered recovery are, by that fact, individually concerned within the meaning of the fourth paragraph of Article 263 TFEU (see, specifically, judgment 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 53); ‘the Comitato “Venezia vuole vivere” judgment’), even if recovery is only implemented in a subsequent phase, in which it is to be established whether the advantages received actually constitute State aid having to be repaid (see the Comitato ‘Venezia vuole vivere’ judgment, paragraph 55). Indeed, according to the Court of Justice, the order for recovery already concerns all the beneficiaries of the system in question individually ‘in that they are exposed, as from the time of the adoption of the [Commission] decision, to the risk that the advantages which they have received may be recovered, and thus find their legal position affected’ (see the Comitato ‘Venezia vuole vivere’ judgment, paragraph 56). Those beneficiaries therefore form part of a limited class within the meaning of the case-law drawn from the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18, paragraph 31).
(
36
)	This results from the corresponding adjustments made to the profit and loss account by Sigma during self-assessment.
(
37
)	T‑221/10, EU:T:2012:112, paragraph 29.
(
38
)	In this sense, Sigma’s situation is similar to that of the applicant in the case that gave rise to the judgment of 11 June 2009, AMGA v Commission (T‑300/02, EU:T:2009:190, paragraph 50).
(
39
)	C‑203/16 P, EU:C:2018:505, paragraph 48.
(
40
)	The appellant mentions Article 25 of the TRLIS, in particular.
(
41
)	See Andres judgment, paragraphs 54 to 58.
(
42
)	See, in particular, paragraphs 13 and 55 of the Andres judgment.
(
43
)	See, in particular, to that effect, judgments of 17 September 2009, Commission v Koninklijke FrieslandCampina (C‑519/07 P, EU:C:2009:556, paragraph 63); of 21 December 2011, ACEA v Commission (C‑319/09 P, EU:C:2011:857, paragraph 67); Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2014:100, paragraph 67); and Stichting Woonlinie and Others v Commission (C‑133/12 P, EU:C:2014:105, paragraph 54).
(
44
)	See, to that effect, judgments of 17 September 2009, Commission v Koninklijke FrieslandCampina (C‑519/07 P, EU:C:2009:556, paragraph 65), and of 26 February 2015, Planet v Commission (C‑564/13 P, EU:C:2015:124, paragraph 34).
(
45
)	See, to that effect, judgments of 21 January 1987, Stroghili v Court of Auditors (204/85, EU:C:1987:21, paragraph 11); of 20 June 2013, Cañas v Commission (C‑269/12 P, EU:C:2013:415, paragraphs 16 and 17); and, most recently, of 17 September 2020, Compagnie des pêches de Saint-Malo (C‑212/19, EU:C:2020:726, paragraph 34).