JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)
20 September 2023 (*)
(State aid – Aid scheme put into effect by Belgium – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted – Tax ruling – Taxable profit – Excess profit exemption – Advantage – Selectivity – Recovery)
In Cases T‑278/16 and T‑370/16,
Atlas Copco Airpower, established in Antwerp (Belgium),
Atlas Copco AB, established in Nacka (Sweden),
applicants in Case T‑278/16,
Anheuser-Busch Inbev, established in Brussels (Belgium),
Ampar, established in Leuven (Belgium),
applicants in Case T‑370/16,
represented by A. von Bonin, O. Brouwer, A. Haelterman, A. Pliego Selie and T. van Helfteren, lawyers,
v
European Commission, represented by P.‑J. Loewenthal, B. Stromsky and F. Tomat, acting as Agents,
defendant,
THE GENERAL COURT (Second Chamber, Extended Composition),
composed of A. Marcoulli, President, S. Frimodt Nielsen, V. Tomljenović (Rapporteur), R. Norkus and W. Valasidis, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure, in particular:
–        the decision of 16 February 2018 to stay the proceedings pending the decisions closing the proceedings in the cases that gave rise to the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and to the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741),
–        the decision of 9 September 2022 to resume the proceedings,
–        the written questions put by the Court to the parties and their replies to those questions,
having regard to the order of the President of the Second Chamber, Extended Composition, of 21 December 2022 joining Cases T‑278/16, T‑370/16, T‑373/16, T‑420/16, T‑467/16, T‑637/16, T‑681/16, T‑858/16 and T‑867/16 for the purposes of the oral part of the procedure,
further to the hearing on 13 February 2023,
gives the following
Judgment
1        By their actions under Article 263 TFEU, the applicants – in Case T‑278/16, Atlas Copco Airpower and Atlas Copco AB, and, in Case T‑307/16, Anheuser-Busch Inbev and Ampar – seek the annulment of Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61; ‘the contested decision’).
I.      Background to the dispute
2        The facts of the dispute and the legal background were set out by the General Court in paragraphs 1 to 28 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and by the Court of Justice in paragraphs 1 to 24 of the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741; ‘the judgment on appeal’). For the purposes of the present proceedings, they may be summarised as follows.
3        By an advance ruling issued by the ‘service des décisions anticipées’ (Advance Ruling Commission) of the service public fédéral des finances belge (Belgian Federal Public Service for Finance) under Article 185(2)(b) of the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘the CIR 92’), read in conjunction with Article 20 of the loi du 24 décembre 2002 modifiant le régime des sociétés en matière d’impôts sur les revenus et instituant un système de décision anticipée en matière fiscale (Law of 24 December 2002 amending the corporate income tax system and establishing an advance tax ruling system) (Moniteur belge, 31 December 2002, p. 58817; ‘the Law of 24 December 2002’), Belgian resident companies that were part of a multinational group and Belgian permanent establishments of foreign resident companies that were part of a multinational group could reduce their tax base in Belgium by deducting what was considered to be ‘excess’ profit from the profit which they had recorded. Under that system, part of the profit made by the Belgian entities benefiting from an advance ruling was not taxed in Belgium. According to the Belgian tax authorities, that excess profit arose from the synergies, economies of scale or other benefits resulting from membership of a multinational group and, accordingly, was not attributable to the Belgian entities in question.
4        The applicants in the present cases are companies established in Belgium that form part of multinational groups of undertakings and other companies belonging to those groups. Those companies carry out transactions with other companies within their respective groups.
5        It is apparent from the annex to the contested decision and the documents in the files in the cases in question that, on 6 September 2011, as regards Atlas Copco Airpower, and, on 28 August 2012, as regards Anheuser-Busch Inbev and Ampar, the Advance Ruling Commission of the Belgian Federal Public Service for Finance adopted advance rulings on the exemption of excess profit in respect of the applicants, which had requested them following restructuring of their groups of undertakings to centralise a number of functions and services with companies established in Belgium. Those advance rulings were valid for five years. In the case of Atlas Copco Airpower, on 15 October 2014, the advance ruling was renewed for a period of five years.
6        Following an administrative procedure that was initiated on 19 December 2013 with a letter by which the European Commission requested the Kingdom of Belgium to provide information on the system of excess profit tax rulings, which were based on Article 185(2)(b) of the CIR 92, the Commission adopted the contested decision on 11 January 2016.
7        By the contested decision, the Commission found that the excess profit exemption scheme that was based on Article 185(2)(b) of the CIR 92, pursuant to which the Kingdom of Belgium had issued advance rulings to Belgian entities of multinational groups of undertakings, granting those entities an exemption in respect of part of their profit, constituted a State aid scheme giving its beneficiaries a selective advantage, for the purposes of Article 107(1) TFEU, that was incompatible with the internal market.
8        Thus, the Commission argued, principally, that the scheme at issue granted beneficiaries of the advance rulings a selective advantage, since the excess profit exemption applied by the Belgian tax authorities was a departure from the ordinary Belgian corporate income tax system. In the alternative, the Commission found that the excess profit exemption could confer a selective advantage on beneficiaries of the advance rulings, in so far as that exemption was not in line with the arm’s length principle.
9        Having found that the scheme at issue had been put into effect in breach of Article 108(3) TFEU, the Commission ordered that the aid thus granted be recovered from its beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.
II.    Forms of order sought
10      The applicants claim that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
11      The Commission contends that the Court should:
–        dismiss the actions;
–        order the applicants to pay the costs.
III. Law
12      It is appropriate, first of all, that the present cases should be joined for the purposes of the decision closing the proceedings, in accordance with Article 68(1) of the Rules of Procedure of the General Court, the parties having been heard.
13      In support of their actions and on the basis of virtually identical applications, the applicants raise four pleas in law. The first plea alleges an error of law, a manifest error of assessment and a failure to state reasons in so far as the contested decision found that there was an aid scheme. The second plea alleges infringement of Article 107 TFEU and manifest errors of assessment, in that the contested decision classified the scheme at issue as a State aid measure. The third plea alleges manifest errors of assessment, infringement of Article 16(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) and breach of the general principles of legality and legal certainty in that the contested decision identified the multinational groups as beneficiaries of the aid at issue and ordered that that aid be recovered. The fourth plea alleges breach of the principles of legal certainty, the protection of legitimate expectations and sound administration.
A.      The plea alleging an error of law, a manifest error of assessment and a failure to state reasons, in so far as the contested decision found that there was an aid scheme
14      In the first plea, the applicants submit, in essence, that the contested decision is vitiated by an error of law and manifest errors of assessment and that it does not demonstrate the existence of an aid scheme, in accordance with Article 1(d) of Regulation 2015/1589. In addition, the applicants claim that the contested decision is vitiated by a failure to state reasons in that the Commission fails to explain how the sample of 22 advance rulings is representative.
15      The Commission contends that the applicants’ arguments should be rejected.
16      In that regard, it should be borne in mind that, in the judgment on appeal, the Court of Justice stated that the contested decision had established the existence of an aid scheme, within the meaning of Article 1(d) of Regulation 2015/1589, resulting from a systematic approach by the Belgian tax authorities, and thus rejected as unfounded the plea relied on by the Kingdom of Belgium and Magnetrol International, alleging a failure to state reasons and that it was incorrectly concluded that there was an aid scheme.
17      In those circumstances, the applicants’ first plea in the present cases, alleging a failure to state reasons and that the Commission erred in finding that there was an aid scheme, must be rejected, that plea being, in essence, similar to those of the Kingdom of Belgium and Magnetrol International, which were rejected by the Court of Justice in the judgment on appeal.
B.      The pleas alleging infringement of Article 107 TFEU and manifest errors of assessment, in that the contested decision classified the scheme at issue as a State aid measure
18      In the second plea and part of the fourth plea, the applicants criticise the Commission for concluding that the excess profit system constituted a State aid measure.
19      First, in the first part of the second plea, the applicants argue that the Commission erred in law and made a manifest error of assessment in finding that the excess profit system did not form an inherent part of the relevant reference system for determining whether there was a selective advantage. In addition, they claim that there were numerous errors and inaccuracies on the part of the Commission regarding the content and objective of Belgian tax law. Secondly, in the second and fourth pleas, the applicants complain that the Commission confused the concepts of ‘advantage’ and ‘selectivity’. Thirdly, in the second to sixth parts of the second plea, the applicants challenge the Commission’s primary line of reasoning, according to which the excess profit exemption system derogated from the general scheme governing Belgian corporate income tax and conferred a selective advantage on its beneficiaries. Fourthly, in the seventh part of the second plea, the applicants contest the Commission’s subsidiary line of reasoning concerning selective advantage and the Commission’s findings relating to the arm’s length principle. Fifthly, in the eighth part of the second plea, the applicants submit, in essence, that the excess profit exemption scheme was justified because it was intended to avoid double taxation.
20      The Commission contends that the applicants’ arguments should be rejected.
21      So far as concerns the conditions relating to advantage and selectivity, they require a determination as to whether, under a particular legal regime, the national measure at issue is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which accordingly suffer different treatment that can, in essence, be classified as discriminatory (see, to that effect, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 67 and the case-law cited).
22      In order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the reference system, that is the ‘normal’ tax system applicable in the Member State concerned, and demonstrate, as a second step, that the tax measure at issue is a derogation from that reference system, in so far as it differentiates between operators who, in the light of the objective pursued by that system, are in a comparable factual and legal situation. The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate, as a third step, that that differentiation is justified, in the sense that it flows from the nature or general structure of the system of which those measures form part (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 68 and the case-law cited).
1.      Identification of the reference system
23      In the first part of the second plea, the applicants criticise the Commission, in particular in the light of recent case-law, for having found that the excess profit exemption scheme did not form an inherent part of the relevant reference system for determining whether there was a selective advantage. They complain that the Commission made several errors vitiating its assessment of the reference system on which it based its consideration of the selectivity of the scheme at issue. Those errors related in particular to the Commission’s failure to take into account the adjustment and deduction mechanisms provided for under Belgian tax law.
24      In that regard, it must be recalled that the determination of the reference system is of particular importance in the case of tax measures, since the existence of an economic advantage for the purposes of Article 107(1) TFEU may be established only when compared with ‘normal’ taxation. Thus, determination of the set of undertakings which are in a comparable factual and legal situation depends on the prior definition of the legal regime in the light of whose objective it is necessary, where applicable, to examine whether the factual and legal situation of the undertakings favoured by the measure in question is comparable with that of those which are not (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 69 and the case-law cited).
25      In that context, it has been held that the determination of the reference system, which must be carried out following an exchange of arguments with the Member State concerned, must follow from an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State (see judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 62 and the case-law cited).
26      In addition, it is apparent from settled case-law that, while the Member States must thus refrain from adopting any tax measure liable to constitute State aid that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member State concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its fiscal autonomy, the characteristics constituting the tax, which define, in principle, the reference system or the ‘normal’ tax regime, from which it is necessary to analyse the condition relating to selectivity. This includes, in particular, the determination of the basis of assessment and the taxable event (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 65 and 73 and the case-law cited).
27      It follows that only the national law applicable in the Member State concerned must be taken into account in order to identify the reference system for direct taxation, that identification being itself an essential prerequisite for assessing not only the existence of an advantage, but also whether it is selective in nature.
28      Furthermore, in order to determine whether a tax measure has conferred a selective advantage on an undertaking, it is for the Commission to carry out a comparison with the tax system normally applicable in the Member State concerned, following an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State. Parameters and rules external to the national tax system at issue cannot therefore be taken into account in the examination of the existence of a selective tax advantage within the meaning of Article 107(1) TFEU and for the purposes of establishing the tax burden that should normally be borne by an undertaking, unless that national tax system makes explicit reference to them (see, to that effect, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 92 and 96).
29      In these cases, the Commission set out in recitals 121 to 129 of the contested decision its position concerning the reference system.
30      Thus, in recitals 121 and 122 of the contested decision, the Commission stated that the reference system was the ordinary system of taxation of corporate profits under the general Belgian corporate income tax system, which had as its objective the taxation of profit of all companies subject to tax in Belgium. The Commission noted that the Belgian corporate income tax system applied to companies resident in Belgium as well as to Belgian branches of non-resident companies. Under Article 185(1) of the CIR 92, companies resident in Belgium were liable to corporate income tax on the total amount of their profit, unless a double taxation treaty applied. Moreover, under Articles 227 and 229 of the CIR 92, non-resident companies were only taxable on specific Belgium-sourced income. The Commission also stated that, in both cases, Belgian corporate income tax was payable on the total profit, which was established according to the rules on calculating profit as defined in Article 24 of the CIR 92. Under Article 185(1) of the CIR 92, read in conjunction with Articles 1, 24, 183, 227 and 229 of the CIR 92, the total profit was calculated as corporate income, minus deductible expenses which were typically recorded in the accounts, so that the profit actually recorded formed the starting point for calculating the total taxable profit, without prejudice to the subsequent application of upward and downward adjustments provided for by the Belgian corporate income tax system.
31      In recitals 123 to 128 of the contested decision, the Commission explained that the excess profit exemption scheme applied by the Belgian tax authorities was not an inherent part of the reference system.
32      More specifically, in recital 125 of the contested decision, the Commission found that that exemption was not prescribed by any provision of the CIR 92. Article 185(2)(a) of the CIR 92 allowed the Belgian tax administration to make a unilateral primary adjustment of a company’s profits where transactions or arrangements with associated companies were concluded on terms that differed from arm’s length conditions. By contrast, Article 185(2)(b) of the CIR 92 provided for the possibility of making downward adjustments of a company’s profit from an intra-group transaction or arrangement, subject to the additional condition that the profit to be adjusted had to have been included in the profit of the foreign counterparty to that transaction or arrangement.
33      In addition, in recital 126 of the contested decision, the Commission recalled that the objective of the Belgian corporate income tax system was to tax corporate taxpayers on their actual profits, irrespective of their legal form or size and of whether or not they formed part of a multinational group of undertakings.
34      Furthermore, in recital 127 of the contested decision, the Commission noted that, for the purposes of determining taxable profit, integrated multinational group companies were required to set the prices they applied to their intra-group transactions instead of those prices being dictated by the market, which is why Belgian tax law contained certain special provisions applicable to groups, which were generally aimed at putting non-integrated companies and economic entities structured in the form of groups on an equal footing.
35      In recital 129 of the contested decision, the Commission concluded that the reference system to be taken into consideration was the Belgian corporate income tax system, which had as its objective the taxation of profits of all companies resident or operating through a permanent establishment in Belgium in the same manner. That system included the applicable adjustments under the Belgian corporate income tax system, which determined the company’s taxable profit for the purpose of levying Belgian corporate income tax.
36      It should be noted at the outset that the parties are agreed on the starting point: that the ordinary Belgian corporate income tax system constitutes the reference system.
37      However, the applicants take issue with the Commission’s view of the scope and content of that ordinary system, in particular as regards the determination of taxable profit, the possibility of adjusting the profits recorded by taxable companies, the identification of the objective of the Belgian tax system and the question as to whether or not that system includes the excess profit exemption scheme applied by the Belgian tax authorities.
(a)    The applicants’ arguments challenging the Commission’s analysis for the purposes of identifying the reference system
38      As a preliminary point, it must be noted that, for the purpose of establishing what the ordinary or ‘normal’ tax system applicable in Belgium is, the Commission relied on the legal provisions applicable, in particular the CIR 92, as is apparent from paragraphs 29 to 35 above. Indeed, on the basis of the information provided by the Kingdom of Belgium in the context of the administrative procedure, the Commission described the legislative framework applicable and set out, in particular in recitals 23 to 28 of the contested decision, the Belgian corporate income tax system, as laid down by the CIR 92. Specifically, as stated in paragraph 30 above, the Commission expressly referred to Articles 1, 24, 183 and 185 of the CIR 92.
39      Moreover, contrary to what the applicants claim in their replies to the measures of organisation of procedure, recent case-law on State aid and taxation does not call into question the Commission’s analysis as regards the definition of the reference system.
40      First of all, as the applicants submit, it is apparent from the case-law that the delimitation ratione materiae of the reference system is, in principle, in line with the measure at issue (judgment of 15 November 2018, World Duty Free Group v Commission, T‑219/10 RENV, EU:T:2018:784, paragraph 98). However, it is important to note that the Commission did take account of the purpose of the measures at issue and the legal framework of which they formed part. First, as is apparent from recitals 127 and 129 of the contested decision, the Commission did take into account, with a view to identifying the reference system, the purpose of the scheme at issue, namely the determination of the taxable profits in order to levy corporate income tax in Belgium. Secondly, as is apparent from recitals 121, 122 and 125 to 128 of the contested decision (see paragraphs 30 to 34 above), the Commission examined in detail the legal framework in which the scheme at issue was implemented. The Commission noted, in particular, that, under the Belgian corporate income tax system, the special provisions applicable to groups were aimed at putting standalone companies and entities forming part of groups on an equal footing. It follows that, contrary to what the applicants claim, the Commission’s analysis for the purposes of identifying the reference system meets the requirements laid down in the case-law.
41      Next, the applicants add that, in paragraphs 154 and 155 of the judgment of 15 July 2020, Ireland and Others v Commission (T‑778/16 and T‑892/16, under appeal, EU:T:2020:338), the Court held that the advance rulings issued by the Irish authorities for the purposes of determining the tax base of undertakings formed part of the general Irish corporation tax regime. It should be noted, however, that the applicants misread paragraphs 154 and 155 of that judgment, currently under appeal. It is apparent from those paragraphs, and from paragraphs 156 to 164 of that judgment, that the Court considered that the ordinary system of taxation of corporate profits had to constitute the relevant reference system for the purpose of examining whether those rulings conferred a selective advantage on their addressees by derogating from that reference system. In the present cases, the advance rulings granted under the scheme at issue were adopted to allow companies belonging to a group to determine their taxable profit in Belgium for the purposes of corporate income tax in that Member State.
42      Lastly, the applicants refer to the considerations set out in paragraphs 62 and 63 of the judgment of 6 October 2021, World Duty Free Group and Spain v Commission (C‑51/19 P and C‑64/19 P, EU:C:2021:793), relating to the determination of the reference system. However, the consideration that the reference system to be taken into account might be more limited than the general tax system, or even that it might equate to the tax measure itself, is not applicable in this instance. Such considerations concern only the situation in which the tax measure is clearly severable from the general tax system or where it is a rule having its own legal logic as regards that system. In the present cases, the applicants do not claim that a more limited reference system, restricted to the excess profit exemption scheme, should be used, or that that system was separable from the general Belgian corporate income tax regime.
43      It follows from the above that, contrary to what is claimed, in essence, by the applicants, the Commission’s approach for the purposes of determining the reference system is consistent with the requirements of recent case-law.
(b)    The errors in the interpretation of Belgian tax law relied on by the applicants
44      The applicants claim that the Commission misinterpreted Belgian tax law in numerous respects. In particular, they complain that the Commission found that the taxable profit was based on the total recorded profit of companies subject to tax, when, according to Belgian tax law, in the case of associated undertakings, the taxable profit should be determined on the basis of the arm’s length principle and taking into account the upward and downward adjustments provided for in that regard.
45      In the first place, as regards the determination of taxable profit, it must be noted, as the Commission correctly indicated in recital 122 of the contested decision, that, for tax purposes, in Belgium, taxable income comprises inter alia profits as defined in Article 24 of the CIR 92 in the section relating to taxation of natural persons.
46      Article 24 of the CIR 92 provides that the taxable income of industrial, commercial and agricultural undertakings includes all income from entrepreneurial activities such as profit from ‘all the operations handled by those undertakings or through their intermediation’ as well as profit from ‘all increases in value of their assets … or decrease in value of their liabilities … when that profit has been realised and registered in the accounts’.
47      Moreover, recital 122 of the contested decision refers to Article 183 and Article 185(1) of the CIR 92. Under Article 183 of the CIR 92, income subject to corporate tax is the same as that envisaged by personal income tax, the calculation of which is based on the principle that the taxable income is made up of all net income, including profit, less deductible expenses. Furthermore, under Article 185(1) of the CIR 92, companies are taxable on the total amount of profit.
48      It follows that, according to the provisions of the CIR 92, for corporate income tax purposes, taxable revenue is calculated on the basis of all profits made or recorded by undertakings subject to taxation in Belgium, profits to which the deductions provided for by law are to be applied.
49      In the second place, contrary to what is claimed by the applicants, the Commission did not disregard the fact that, in the case of profits on transactions between associated companies, adjustments and deductions had to be made in order to determine the taxable profit of the company subject to taxation in Belgium.
50      Admittedly, it is indicated in recital 133 of the contested decision that in the context of the ordinary system of taxation of corporate profits under the Belgian corporate income tax system, entities subject to taxation in Belgium are taxed on their total profit, that is, on their profit actually recorded, not on a hypothetical level of profit.
51      However, that finding does not mean that the Commission failed to take into account the adjustments provided for by the Belgian corporate income tax system. Indeed, in recital 123 of the contested decision, in particular, the Commission recognised that, specifically under Article 185(2)(b) of the CIR 92, in order to determine the taxable profit of a Belgian undertaking, there was a possibility of making downward adjustments where part of the profit of that undertaking was already included in the taxable profit of an associated foreign undertaking.
52      Thus, contrary to the applicants’ contention, the position taken by the Commission in the contested decision does not mean that all profit recorded by companies that are subject to taxation in Belgium must be taxed by the Belgian tax authorities without any adjustments being made to the profits recorded in the accounts of those companies. In fact, the Commission itself takes account of the fact that the total recorded profit provides the basis for calculation that is subject to the downward and upward adjustments provided for by the ordinary Belgian corporate income tax system.
53      Moreover, it is apparent from recital 68 of the contested decision that the Commission does not criticise the Kingdom of Belgium for applying adjustments generally, but that it is only the downward adjustment in the context of the excess profit scheme which it regarded as contra legem.
54      For the same reasons, the applicants’ claims that the Commission disregarded the fact that there was a difference in the Belgian tax system between the accounting profit and the taxable profit cannot be upheld.
55      In the third place, the applicants dispute the Commission’s interpretation of Article 185(2) of the CIR 92 and, in particular, the assertion that the application of that article is conditional on the inclusion of excess profit in the tax base of other group entities.
56      First, it must be noted that the Commission based its analysis of Article 185(2) of the CIR 92 on the wording of that provision and the texts that accompanied its entry into force. In recitals 29 to 38 of the contested decision, the Commission described in detail the text of Article 185(2) of the CIR 92, introduced by the loi du 21 juin 2004, modifiant le [CIR 92] et la loi du 24 décembre 2002 (Law of 21 June 2004 modifying the CIR 92 and the Law of 24 December 2002) (Moniteur belge, 9 July 2004, p. 54623; ‘the Law of 21 June 2004’); the explanatory memorandum to the draft of that law, presented to Belgium’s Chamber of Representatives by the Belgian Government on 30 April 2004 (‘the Memorandum to the Law of 21 June 2004’); and the circular of 4 July 2006 concerning Article 185(2) of the CIR 92 (‘the Circular of 4 July 2006’).
57      First of all, in the version applicable to the present cases, Article 185(2) of the CIR 92, to which reference is made in recital 29 of the contested decision, is worded as follows:
‘Without prejudice to the second paragraph, for two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:
…
(b)      when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the profit of the first company is adjusted in an appropriate manner.
The first paragraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/436) of 23 July 1990 or of a Convention for the avoidance of double taxation.’
58      Next, the Memorandum to the Law of 21 June 2004, referred to in recital 34 of the contested decision, states that Article 185(2)(b) of the CIR 92 provides for an appropriate correlative adjustment in order to avoid or undo a (potential) double taxation, and that a correlative adjustment should be made only if the tax administration or the Advance Ruling Commission considers both the principle and the amount of the primary adjustment to be justified.
59      Moreover, the Memorandum to the Law of 21 June 2004 makes clear that that provision does not apply if the profit made in the partner State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied, since the Belgian tax authorities are not obliged to accept the consequences of an arbitrary or unilateral adjustment in the partner State.
60      Lastly, the Circular of 4 July 2006, referred to in recital 38 of the contested decision, reiterates that such a downward adjustment does not apply in cases where the primary upward adjustment in another tax jurisdiction is exaggerated. That circular, moreover, largely reproduces the text of the Memorandum to the Law of 21 June 2004, in that it recalls that the corresponding downward adjustment is informed by the arm’s length principle, that its objective is to avoid or undo a (potential) double taxation and that it must be made in an appropriate manner, that is, that the Belgian tax authorities can make that adjustment only if both the principle and the amount of that adjustment are justified.
61      Accordingly, it is apparent from the wording of Article 185(2)(b) of the CIR 92 that the downward adjustment is envisaged in the context of cross-border relationships between two associated companies and that it must be a correlative adjustment, in the sense that it is applicable only if the profit that is to be adjusted is already included in the profit of the other company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies.
62      That finding is confirmed both by the Memorandum to the Law of 21 June 2004 and by the Circular of 4 July 2006, which make clear that both the principle and the amount of the correlative adjustment must be appropriate and that that adjustment should not be made if the profit made in another State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied. Those texts indicate that the downward adjustment provided for by Article 185(2)(b) of the CIR 92 requires a correlation between the profit adjusted downwards in Belgium and profit included in another group company established in another State.
63      Secondly, contrary to what the applicants claim, the Commission did not consider that the application of Article 185(2)(b) of the CIR 92 was conditional on the inclusion of the excess profit in the tax base of other undertakings, or on the actual taxation of that profit in other tax jurisdictions. As is apparent from recital 125 of the contested decision, the Commission merely considered, as regards the first of the two conditions identified in paragraph 61 above, that Article 185(2)(b) of the CIR 92 required that the profit should also have been included in the profit of the associated undertaking established abroad. The condition identified by the Commission therefore concerned the allocation of excess profit to another entity in the group and, thus, the verification that the excess profit excluded from the Belgian tax base corresponded to profits attributable to another entity. Furthermore, as is apparent from recitals 133, 135 and 136 of the contested decision, what the Commission emphasised was that the excess profit exemption consisted of an exemption percentage calculated on the basis of a hypothetical level of profit.
64      Therefore, contrary to what the applicants maintain, the Commission’s interpretation of Article 185(2)(b) of the CIR 92 does not amount to making the application of the Belgian calculation and allocation rules conditional on the application of rules of other tax jurisdictions. Nor does such an interpretation amount to requiring the Kingdom of Belgium to prove that the profit in question was subsequently included in a foreign tax base.
65      Thirdly, as regards the term ‘exemption’ used by the Commission to define the excess profit system under the scheme at issue, it is common ground that that system was described by the Belgian tax authorities themselves as an ‘excess profit exemption’, consisting in the taxation of only part of the profit, as defined by the company in question together with the Advance Ruling Commission. Thus, part of the profit that is considered to be excess profit, on the basis of the percentage prescribed by the advance ruling, is excluded from the tax base of the company in question for each tax year of the period of validity of the advance ruling, irrespective of the nature and amount of the profit made by that company. Such a system can hardly be designated a mere ‘adjustment’, contrary to what is claimed by the applicants. The Commission cannot, therefore, be criticised for having described the scheme applicable to excess profits as an exemption.
66      Furthermore, the applicants’ argument that the Commission wrongly stated, in recital 29 of the contested decision, that the Law of 21 June 2004 had introduced new rules regarding cross-border transactions of entities belonging to a multinational group, that law having merely confirmed and explained the rules contained in the tax treaties, must also be rejected. First, the question whether or not that law introduces new rules has no bearing on the Commission’s reasoning and is not such as to call into question the lawfulness of the contested decision. Secondly, the Commission merely stated, in recital 29 of the contested decision, that new rules, including paragraph 2 of Article 185 of the CIR 92, had been introduced into Belgian law by the Law of 21 June 2004.
67      Lastly, contrary to what the applicants maintain, the Commission in no way stated, in recital 126 of the contested decision, that Belgian law required a company to have been recently established in Belgium. On the contrary, in that recital, the Commission stated that all companies were subject to corporate income tax in the same manner, irrespective of whether they had recently established operations in Belgium or whether they had operated in Belgium for many years.
(c)    The applicants’ arguments challenging the non-inclusion of the excess profit scheme in the reference system
68      The applicants criticise the Commission for finding that the excess profit scheme was not an inherent part of the reference system. In that regard, it must be noted, in the first place, that the Commission did not exclude Article 185(2)(b) of the CIR 92 from the reference system. However, it did find that the excess profit scheme applied by the Belgian tax authorities did not form part of that system.
69      In the second place, in order to determine whether the Commission correctly concluded that the excess profit scheme was not provided for by Article 185(2)(b) of the CIR 92, it is necessary to examine, on the one hand, the scope of that provision and, on the other, the excess profit scheme as applied by the Belgian tax authorities.
70      First, as stated in paragraphs 56 to 61 above, it is apparent from the wording of Article 185(2)(b) of the CIR 92 that the downward adjustment is envisaged in the context of cross-border relationships between two associated companies and that it must be a correlative adjustment, in the sense that it is applicable only if the profit that is to be adjusted is already included in the profit of the other company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies.
71      Secondly, as regards the determination of the scope of the excess profit scheme, as applied by the Belgian tax authorities, the Commission, in particular in recitals 39 to 42 of the contested decision, took into account the replies given by the Belgian Minister for Finance on 13 April 2005, 11 April 2007 and 6 January 2015 to parliamentary questions on the application of Article 185(2)(b) of the CIR 92. Those replies explain the administrative practice of the Belgian tax authorities relating to excess profit.
72      It is apparent from those replies that, in the context of the excess profit scheme applied by the Belgian tax authorities, the downward adjustment of profit enabling that excess profit to be deducted from the tax base was not conditional upon the exempted profit having been included in the profit of another company and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies.
73      It is, moreover, apparent from the explanations given by the Kingdom of Belgium, as set out in particular in recitals 15 to 20 of the contested decision, that the exemption applied by the Belgian tax authorities under the scheme at issue was based on an exemption percentage, calculated on the basis of a hypothetical average profit for the Belgian entity, obtained using a profit level indicator derived from a comparison with the profit of comparable standalone companies and fixed as a point in the interquartile range of the chosen profit level indicator of a set of comparable standalone companies. That exemption percentage would have been applicable for a number of years, that is to say, during the period of validity of the advance ruling. Thus, the resulting starting point for the taxation of Belgian entities was not the full profit actually recorded, within the meaning of Articles 1, 24, 183 and Article 185(1) of the CIR 92, to which the adjustments provided for by law in the case of groups of undertakings would have been applied under Article 185(2) of the CIR 92; rather, it was a hypothetical profit that disregarded the total profit made by the Belgian entity in question and the adjustments provided for by law.
74      It follows from the above that, while Article 185(2)(b) of the CIR 92 requires, for the purposes of a downward adjustment, that the profit to be adjusted should already have been included in the profit of another company and be profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the excess profit scheme was applied by the Belgian tax authorities without those conditions being taken into consideration. It must therefore be held that the Commission correctly concluded, in recital 125 of the contested decision, that the excess profit exemption was not prescribed by any provision of the CIR 92.
75      Furthermore, the fact that the objective of Article 185(2)(b) of the CIR 92 is to avoid potential double taxation cannot eliminate the condition expressly laid down, relating to the fact that the profit to be adjusted is already included in the profit of another company and that that profit is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. If that profit is already included in the profit of another company, established in another State, it may be taxed there. Thus, even if, for the purposes of the application of Article 185(2)(b) of the CIR 92, proof of actual taxation in that other State is not required, the adjustment provided for by that provision is in fact intended to avoid potential double taxation.
76      Lastly, the applicants claim that the Commission found, in the decisions initiating the formal investigation procedure adopted on 16 September 2019, concerning each beneficiary of the scheme at issue, following the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), that the excess profit scheme formed part of the relevant reference system for examining those measures. However, that argument, which relates to a decision adopted in the context of other proceedings, is irrelevant for the purposes of assessing whether the contested decision is lawful.
77      Accordingly, contrary to the applicants’ contention, the Commission was right to find that the excess profit exemption applied by the Belgian tax authorities under the scheme at issue did not form part of the reference system.
(d)    The applicants’ arguments challenging the identification of the objective of the reference system
78      The applicants criticise the Commission for taking the view that the objective of the reference system was to tax accounting profits. They submit that the objective of that system was in fact to determine the correct net taxable income taking into account deductions and exemptions.
79      In that regard, it should be noted, first, that the Commission did not find that the objective of the Belgian corporate income tax system was to tax accounting profits. As stated in paragraph 35 above, the Commission concluded, in recital 129 of the contested decision, that the Belgian corporate income tax system had as its objective the ‘taxation of profits of all companies resident or operating through a permanent establishment in Belgium in the same manner’. Secondly, as stated in paragraphs 49 to 53 above, the Commission did take account of the fact that adjustments and deductions had to be made for the purposes of determining the taxable profit of the company subject to tax in Belgium and it therefore did not find that the Belgian corporate income tax system consisted in taxing companies on their full accounting profit.
(e)    Conclusion on the identification of the reference system
80      In the light of the above, the first part of the applicants’ second plea, challenging the Commission’s identification of the reference system and the objective of that system in the contested decision, must be rejected.
2.      Analysis of the criterion of advantage
81      In the second plea in Case T‑370/16 and the fourth plea in Cases T‑278/16 and T‑370/16, in essence, the applicants complain that the Commission confused the concepts of ‘advantage’ and ‘selectivity’. In addition, in their replies to the measures of organisation of procedure, they submit that the primary line of reasoning does not make it possible to establish the existence of an advantage and, in particular, that it does not demonstrate that the excess profit exemption lightens the tax burden normally borne by the beneficiaries of that scheme.
(a)    The joint analysis of advantage and selectivity
82      As regards the Commission’s joint analysis of the criterion of advantage and that of selectivity, it must be noted that, in the analysis of the conditions set out in Article 107(1) TFEU that must be satisfied in order for a measure to constitute State aid, including that relating to the existence of a selective advantage, the concept of advantage and that of its selectivity are two separate criteria. So far as advantage is concerned, the Commission must show that the measure improves the financial situation of the recipient (see, to that effect, judgment of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 15). However, so far as selectivity is concerned, the Commission must show that the advantage does not benefit other undertakings that are in a factual and legal situation comparable to that of the recipient in the light of the objective of the reference system (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).
83      In that regard, it should be noted that, according to the case-law, the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings (judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59).
84      It must however be stated that, according to the case-law of the Court of Justice, those two criteria may be examined together as a ‘third condition’ laid down by Article 107(1) TFEU, requiring there to be a ‘selective advantage’ (see, to that effect, judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 32).
85      In the contested decision, the Commission’s reasoning with regard to the advantage is set out in its analysis of the existence of a selective advantage, that is, in Section 6.3, entitled ‘Existence of a selective advantage’. In that context, the Commission did in fact examine the criterion of advantage.
86      As a preliminary point, in recital 125 of the contested decision, the Commission indicated that the excess profit exemption applied by the Belgian tax authorities was not provided for by the Belgian corporate income tax system. Furthermore, in recital 126 of the contested decision, the Commission highlighted the fact that that exemption was calculated in disregard of the total profit actually recorded by the Belgian entity and the adjustments provided for by law. In recital 127 of the contested decision, it stated that although the Belgian system contained certain special provisions applicable to groups, these were aimed at putting integrated multinational group entities and standalone entities on an equal footing.
87      In that context, in recital 133 of the contested decision, the Commission indicated that, under the Belgian corporate income tax system, corporate entities resident or operating through a permanent establishment in Belgium were taxed on their profit actually recorded, not on a hypothetical level of profit, which was why the excess profit exemption conferred an advantage on Belgian group entities benefiting from the scheme at issue.
88      In recital 135 of the contested decision, the Commission recalled the case-law according to which an economic advantage may be granted through a reduction in an undertaking’s tax burden and, in particular, through a reduction in the tax base or in the amount of tax due. Thus, the Commission found that, in this instance, the scheme at issue allowed corporate beneficiaries of advance rulings to reduce their tax liability by deducting a so-called ‘excess’ profit from their profit that was actually recorded. That excess profit was determined by estimating the hypothetical average profit of comparable standalone undertakings, so that the difference between the profit actually recorded and that hypothetical average profit was then translated into an exemption percentage underpinning the calculation of the tax base agreed for the five years of the advance ruling’s application. In so far as that tax base, thus determined on the basis of the advance rulings granted under the scheme at issue, was lower than it would have been had those advance rulings not been issued, an advantage would have arisen.
89      Consequently, it is apparent from the recitals of the contested decision highlighted in paragraphs 86 to 88 above that the advantage identified by the Commission consisted in the non-taxation of the excess profit of corporate beneficiaries, and in the taxation of their profit calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, in accordance with advance rulings under the scheme at issue. According to the Commission, such taxation represented a lowering of the tax burden of the beneficiaries of the scheme, in comparison with the burden that would have arisen from normal taxation, under the Belgian corporate income tax system, which would have covered all profits actually recorded, after applying the adjustments provided for by law.
90      Next, the actual analysis of the selectivity of that advantage is set out in recitals 136 to 141 of the contested decision, under Section 6.3.2.1 of that decision, so far as concerns the Commission’s primary line of reasoning as to selectivity, based on the existence of a derogation from the general Belgian corporate income tax system. Moreover, the selectivity of the advantage represented by the excess profit exemption is also analysed in recitals 152 to 170 of the contested decision, under Section 6.3.2.2 of that decision, so far as concerns the Commission’s subsidiary line of reasoning as to selectivity, based on the existence of a derogation from the arm’s length principle.
91      Accordingly, the fact that, in terms of form, the analysis of advantage was included in a section that also covers the examination of selectivity does not reveal a failure to carry out a substantive examination of both concepts, in so far as the existence of an advantage, on the one hand, and the existence of its selective nature, on the other, are in fact assessed.
92      Contrary to what the applicants maintain, the recent case-law of the Court of Justice and of the General Court is not such as to call that finding into question. On the contrary, in the judgment of 24 September 2019, Netherlands and Others v Commission (T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 129), the General Court expressly found that the Commission’s approach of examining the criteria of advantage and selectivity concurrently was not itself incorrect, given that both the advantage and the selective nature of that advantage were examined.
93      It is also necessary to reject the applicants’ argument that the possibility of analysing the criteria of advantage and selectivity concurrently is not applicable to the examination of an aid scheme, but only to that of an individual aid measure. It is apparent from the judgments of 30 June 2016, Belgium v Commission (C‑270/15 P, EU:C:2016:489, paragraph 32), and of 6 April 2022, Mead Johnson Nutrition (Asia Pacific) and Others v Commission (T‑508/19, EU:T:2022:217, paragraph 169), that the criteria of advantage and selectivity may, in terms of form, be examined together in the context of the examination of an aid scheme.
(b)    Proof of the existence of an advantage
94      As regards proof of the existence of an advantage, it should be noted that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 40 and the case-law cited; judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 21).
95      In the case of tax measures, the very existence of an advantage may be established only when compared with ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56). Therefore, such measures confer an economic advantage on their recipients if the measures mitigate the burdens normally included in the budget of an undertaking and, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 22).
96      Consequently, in order to determine whether there is a tax advantage, the position of the recipient as a result of the application of the measure at issue must be compared with the recipient’s position in the absence of that measure, and under the normal rules of taxation (see judgment of 24 September 2019, Netherlands and Others v Commission, T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 147 and the case-law cited).
97      Furthermore, in the case of an aid scheme, the Commission need only demonstrate that the tax scheme at issue is such as to favour its beneficiaries, by ascertaining that the scheme, taken as a whole, is, given its particular characteristics, capable of resulting, at the time of its adoption, in the tax liability being lower than it would have been if the general tax regime had been applied (see judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 63 and the case-law cited).
98      In this instance, as is apparent from paragraphs 30 to 35, 40 and 85 to 89 above, the Commission noted in recitals 125 to 127 and 133 to 135 of the contested decision that, following the advance rulings issued under the scheme at issue, the Belgian entities that were part of a multinational group and that had requested it had been able to reduce their corporate tax liability in Belgium, by deducting from their tax base a percentage of their profit, as ‘excess’ profit, for the five years of the advance rulings’ validity.
99      First of all, it is not disputed that the scheme at issue was designed as a system which consisted in the non-taxation of part of the profit recorded by Belgian entities that were part of a multinational group. Also undisputed is the fact that, under Article 2 of the Law of 21 June 2004, it is only through an advance ruling issued by the Advance Ruling Commission in response to a request made by the Belgian entities concerned that part of the profit of those entities could be classified as excess profit under Article 185(2)(b) of the CIR 92 and that the exemption percentage in question could be applied to the tax base of those entities, so that only part of that tax base was taxed.
100    Next, it should be recalled that it is apparent from Article 185(1) of the CIR 92 that resident companies in Belgium are to be taxed on the total amount of their profit. Furthermore, it is apparent from Article 24 of the CIR 92 that the starting point for the taxable profit of undertakings is all the profit realised or registered in the accounts.
101    Lastly, as indicated in paragraphs 56 to 62 above, it is apparent from Article 185(2)(b) of the CIR 92 that the tax base can be adjusted downwards where the profit of the company in question is already included in the profit of another company of the same group and it is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies.
102    Consequently, under the normal rules of taxation in Belgium, Belgian entities were taxed on all of their profit, as registered in their accounts, subject to any adjustments, such as that provided for in Article 185(2)(b) of the CIR 92. However, in so far as the scheme at issue consisted in an exemption of ‘excess’ profit for which, as noted in paragraph 77 above, no provision was made in Article 185(2)(b) of the CIR 92, that scheme was capable of resulting in a reduction of the tax which the entities that requested those rulings would otherwise have had to pay, pursuant to the rules on corporate income tax in Belgium.
103    In the circumstances, the Commission cannot be criticised for having found that the tax scheme at issue was such as to favour its beneficiaries, in so far as that scheme, taken as a whole and given its particular characteristics, was capable of resulting in the tax liability being lower than it would have been if the normal rules of corporate taxation in Belgium had been applied.
104    Furthermore, the applicants submit that, in order to establish the existence of an advantage in the context of the primary line of reasoning, the Commission should have demonstrated that the excess profit exemption system deviated from the arm’s length principle. It should be noted, in that regard, that it was only in the context of the analysis of the selectivity of the scheme at issue that the Commission examined, in the alternative, the extent to which that scheme derogated from the arm’s length principle. That argument is, therefore, entirely irrelevant in the context of the examination of the Commission’s assessment of the existence of an advantage.
105    In the light of the above, the applicants’ arguments criticising the Commission for having conflated the concepts of advantage and selectivity and for having failed to demonstrate the existence of an advantage must be rejected.
3.      The primary line of reasoning to establish the existence of a selective advantage
106    In essence, in the second to sixth parts of their second plea, the applicants challenge the Commission’s primary line of reasoning to establish the existence of a selective advantage. They dispute the finding that the excess profit exemption system derogated from the general corporate income tax system. They also dispute the various findings that that system had introduced a difference in treatment of the beneficiaries as compared with economic operators in a comparable situation.
107    The Commission contends that the applicants’ arguments should be rejected.
108    As a preliminary point, it should be noted that, in their replies to the measures of organisation of procedure, the applicants claim that, according to recent case-law, the Commission must demonstrate the use of manifestly discriminatory criteria in order to establish the selectivity of a tax measure.
109    In that regard, as has already been stated in paragraph 22 above, it should be recalled that the Court of Justice has recently confirmed that, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the reference system, that is the ‘normal’ tax system applicable in the Member State concerned, and demonstrate, as a second step, that the tax measure at issue is a derogation from that reference system, in so far as it differentiates between operators who, in the light of the objective pursued by that system, are in a comparable factual and legal situation (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 68 and the case-law cited).
110    Furthermore, in so far as the applicants refer to the judgment of 16 March 2021, Commission v Hungary (C‑596/19 P, EU:C:2021:202), and the Opinion of Advocate General Kokott in Fossil (Gibraltar) (C‑705/20, EU:C:2022:181), it should be noted that those cases concerned the conditions under which a tax rule which relates to the characteristics constituting the tax and forming part of the reference system could nevertheless be classified as selective. Thus, the requirement to demonstrate the existence of manifestly discriminatory parameters intended to circumvent EU State aid law, to which the applicants refer, does not concern situations in which the tax measure does not form part of the reference system. In this instance, contrary to what the applicants suggest, the scheme at issue does not consist of Article 185(2)(b) of the CIR 92 but of the excess profit exemption applied by the tax authorities without this being prescribed by the CIR 92. Since, as stated in paragraphs 68 to 76 above, the excess profit exemption does not form part of the reference system, it was not for the Commission to demonstrate the existence of manifestly discriminatory parameters.
(a)    Whether there is a derogation from the reference system as a result of the Belgian tax authorities’ application of Article 185(2)(b) of the CIR 92
111    In essence, the applicants claim that the Commission incorrectly found that the Belgian tax authorities had applied Article 185(2)(b) of the CIR 92 contra legem and that it inferred from this that there was a derogation from the reference system.
112    In the contested decision (Section 6.3.2.1), the Commission found, principally, that the Belgian excess profit exemption scheme conferred a selective advantage on its beneficiaries by derogating from the general Belgian corporate income tax system, in so far as that system provided for companies to be taxed on their total profit, that is, their profit actually recorded, not on a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law.
113    Thus, the Commission concluded, in recital 136 of the contested decision, that Article 185(2)(b) of the CIR 92, on which the Kingdom of Belgium relied as the basis for the scheme at issue, did not have the meaning or effect suggested by that scheme and accordingly that that scheme constituted, rather, a derogation from the general rule under Belgian tax law according to which profit actually recorded is taxed. The Commission also pointed out that that scheme was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.
114    The Commission then went on, in recitals 137 to 141 of the contested decision, to develop its reasons for considering that the scheme at issue differentiated between operators who, in the light of the objective assigned to the Belgian tax system, were in a comparable legal and factual situation.
115    It should be recalled at the outset that what the Commission regarded as not forming part of the reference system and thus derogating from it is the excess profit scheme, that is to say, the downward adjustment, as applied by the Belgian tax authorities to a certain part of the taxable profit, referred to as the ‘excess’.
116    However, as indicated in paragraphs 71 to 77 above, in the light of the wording of Article 185(2)(b) of the CIR 92, the downward adjustment of the taxable profit is conditional on the profit of a given company that is to be deducted having already been included in the profit of another company, and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. By contrast, the Belgian tax authorities’ practice of making a unilateral downward adjustment without the need to establish that the profit that is to be adjusted has already been included in the profit of another company and that it is profit which would have been made by that other company if the relevant transactions had been between independent companies is not provided for in Article 185(2)(b) of the CIR 92.
117    Moreover, the applicants’ argument that Article 185(2)(b) of the CIR 92 does not derogate from the reference system, because it cannot apply to a purely domestic situation or to standalone entities, must be rejected. The purpose of Article 185(2) of the CIR 92 is precisely to put associated and unrelated undertakings on an equal footing.
118    In that regard, as stated in paragraph 79 above, it must be recalled that the objective of the ordinary Belgian corporate income tax system, as is apparent from the conclusion relating to the reference system in recital 129 of the contested decision, is the taxation of all the taxable profits of entities subject to Belgian corporate income tax. In addition, as indicated in paragraph 46 above, according to the normal rules of taxation in Belgium, the starting point for the taxable profit of undertakings is all the profit realised or registered in their accounts.
119    Consequently, the Commission was right to find, in the context of its primary line of reasoning, that the excess profit exemption scheme derogated from the ordinary Belgian corporate income tax system.
120    Furthermore, it is also necessary to reject the applicants’ arguments that the Commission disregarded the division of powers between the Member States and the European Union by failing to take account of the fact that EU law did not impose any method for determining the taxable profit, or of the fact that EU law did not prohibit double taxation or double non-taxation. First, the contested decision is in no way based on any prohibition under EU law of double taxation or of double non-taxation. Secondly, the Commission relied exclusively, for the purposes of establishing the existence of an aid scheme, on Belgian national law and the fact that the scheme at issue exempted income that should normally have been taxed under the normal rules of taxation.
(b)    Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation
121    The applicants claim that the Commission incorrectly found that the scheme at issue resulted in a difference in treatment of beneficiaries in comparison with other economic operators in a comparable situation.
122    In that regard, it should be noted that, in recitals 138 to 140 of the contested decision, the Commission put forward three alternative grounds for its conclusion. It is appropriate to examine each of these in turn, for the sake of completeness.
(1)    Different treatment of beneficiaries forming part of a multinational group of undertakings
123    The Commission found, in recital 138 of the contested decision, that the scheme was selective because it was open only to entities that were part of a multinational group of undertakings.
124    It is true that Article 185(2)(b) of the CIR 92 is intended to apply to integrated multinational group companies. However, as is apparent from the Memorandum to the Law of 21 June 2004, the purpose of Article 185(2) of the CIR 92 is to put associated and unrelated undertakings on an equal footing.
125    In that regard, as stated in paragraphs 35 and 79 above, it must be recalled that the objective of the ordinary Belgian corporate income tax system, as is apparent from recital 129 of the contested decision, is the taxation of all the taxable profits of entities subject to Belgian corporate income tax, whether they are standalone entities or form part of a multinational group of undertakings. In addition, as stated in paragraph 48 above, according to the normal rules of taxation in Belgium, the starting point for the taxable profit of undertakings is all the profit realised or registered in their accounts.
126    By contrast, the excess profit exemption applied by the Belgian tax authorities, in so far as it derogated from Article 185(2) of the CIR 92, granted a tax reduction to the beneficiaries concerned, on the ground that they were part of a multinational group of undertakings, by allowing them to deduct part of their recorded profit from their tax base, without that exempted profit having been included in the profit of another group company.
127    Therefore, entities forming part of a multinational group which benefited under the scheme at issue from an excess profit exemption, in the form of an exemption percentage calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, would be treated differently from other entities, whether standalone or forming part of a group of undertakings, which would have been taxed in accordance with the normal Belgian corporate income tax rules on their total profit actually recorded, where appropriate, in the case of integrated entities, after adjustment pursuant to Article 185(2)(b) of the CIR 92 under the conditions laid down in that provision.
128    Accordingly, the Commission cannot be criticised for having stated that the entities forming part of a multinational group which benefited from the excess profit exemption pursuant to the scheme at issue, as an adjustment which is not as such provided for by law, were treated differently from other entities in Belgium that did not benefit from it, although those entities were in a comparable factual and legal situation, in the light of the objective of the ordinary Belgian corporate income tax system, which is the taxation of all taxable profits of all companies resident or operating through a permanent establishment in Belgium.
(2)    Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium
129    In recital 139 of the contested decision, the Commission stated that the scheme at issue was selective in so far as it was not open to companies that may have decided not to make investments, create employment or centralise activities in Belgium. The Commission noted that Article 20 of the Law of 24 December 2002 made the adoption of advance rulings conditional on the existence of a situation or of a transaction that had not had tax consequences and that an advance ruling was necessary in order to benefit from the excess profit exemption.
130    The Commission also noted that, in the sample of advance rulings granting an excess profit exemption that it had analysed, each ruling contained references to substantial investments, centralisation of activities or the creation of employment in Belgium. Accordingly, it found that the ‘new situation’ requirement that was a prerequisite for requests for advance rulings by which requesting parties sought to benefit from the excess profit exemption resulted in multinational groups that amended their business model by establishing new operations in Belgium being treated differently from any other economic operators, including multinational groups, that continued to operate under their existing business models in Belgium.
131    In that regard, it should be recalled that, in paragraphs 142 to 144 of the judgment on appeal, the Court of Justice confirmed that the choice of a sample consisting of 22 advance rulings, issued in 2005, 2007, 2010 and 2013, was appropriate and sufficiently representative.
132    Furthermore, as the Commission correctly pointed out in recital 139 of the contested decision, Article 20 of the Law of 24 December 2002 defines an advance ruling as the legal act by which the Federal Public Service for Finance determines, in accordance with the applicable provisions, how the law will apply to a particular situation or transaction that has not yet had tax consequences. Moreover, Article 22 of that law makes clear that an advance ruling cannot be issued, in particular, when the request concerns situations or transactions identical to those having already had tax consequences as regards the requesting party.
133    Admittedly, it cannot be inferred from the provisions referred to in paragraph 132 above that the making of investments, creation of employment or centralisation of activities in Belgium is explicitly required as a condition for obtaining an advance ruling.
134    However, it is apparent from the sample of advance rulings analysed by the Commission in the contested decision that those rulings were in fact granted following requesting parties’ proposals to invest, to relocate certain operations or to create a certain number of jobs in Belgium. Indeed, the three examples described in footnote 80 to the contested decision, in which the parties requesting the advance rulings in question described their plans for investment and for recentralisation of activities in Belgium, show that, in practice, the condition for the issue of an advance ruling, that there should be a situation that had not had tax consequences, was satisfied by investments, by the centralisation of activities or by the creation of employment in Belgium.
135    Furthermore, contrary to what the applicants claim, it is clear from recital 139 of the contested decision that that decision is based precisely on the finding that the grant of the advance rulings applying the excess profit exemption was conditional on ‘substantial investments [or] the creation of employment [or] the relocation of activities to Belgium’ and thus, more generally, on a change to the business model in Belgium. In that regard, it should be made clear that, contrary to what the applicants maintain, the Commission did not consider that the grant of the excess profit exemption was conditional solely on the relocation of activities to Belgium. As is apparent from recitals 102 and 139 of the contested decision, the relocation requirement was merely an example of a change to the business model, constituting a ‘new situation’, for which the profit exemption had been granted by the Belgian authorities. The Commission clearly explained in those recitals that the ‘new situation’ could also consist in an increase or restructuring of activities, in new investments or in the creation of employment in Belgium.
136    Furthermore, it is also necessary to reject the applicants’ arguments that the Commission considered that the instrument of advance rulings, in general, was selective. Only advance rulings granted under the excess profit exemption scheme were the subject of the contested decision. As stated in paragraph 135 above, the Commission’s analysis of the selectivity of the scheme at issue, contained in recital 139 of the contested decision, was based on the finding that Article 20 of the CIR 92 provided that an advance ruling could not be granted in respect of a situation or transaction that had not had tax consequences. On that basis, the Commission observed that, in practice, the grant of the benefit of the scheme at issue was systematically conditional on the existence of a situation related to investments, the centralisation of activities or the creation of employment in Belgium. It is therefore not apparent from the Commission’s analysis that the grant, as such, of an advance ruling constituted a selective measure, but that the scheme at issue was selective in that the excess profit exemption was granted, by means of an advance ruling, solely on the condition that investments be made, that activities be centralised or that employment be created in Belgium.
137    Next, it should be borne in mind that, in the present cases, it is precisely the administrative practice of the Belgian tax authorities – consisting in exempting profits by advance rulings – that has been considered to derogate from what is provided for in Article 185(2)(b) of the CIR 92. As a result of those advance rulings, their beneficiaries obtained an advantage consisting in a reduction in their tax base, because of the exemption of ‘excess’ profit. By contrast, entities that did not amend their business model in order to create new tax situations – which, in the light of that practice, consisted systematically in investments, centralisation of activities or creation of employment in Belgium – and therefore did not request an advance ruling were taxed on all of their taxable profits. Consequently, the scheme at issue resulted in companies that were in a comparable factual and legal situation being treated differently, in the light of the objective of the ordinary Belgian corporate income tax system.
138    In those circumstances, the Commission cannot be criticised for having stated, in recital 139 of the contested decision, that the system at issue was selective because it was not open to companies that had decided not to make investments, centralise activities or create employment in Belgium.
139    The applicants’ arguments that there are examples, including their own case, in which the excess profit exemption was granted in the absence of new investments or relocation do not call that conclusion into question.
140    First, it must be recalled that in a decision which concerns an aid scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme (the judgment on appeal, paragraph 77). Accordingly, the Commission cannot be criticised for not having taken into account the applicants’ individual situation as regards, more specifically, the excess profit exemption granted to them by the Belgian authorities.
141    Secondly, and in any event, the applicants have not established that there were examples of the excess profit exemption being granted in the absence of new investments, relocation or restructuring.
142    On the contrary, as regards Atlas Copco and Atlas Copco Airpower, the applicants in Case T‑278/16, it should be noted that they themselves explain, in paragraph 4 of the application, that they obtained the tax ruling at issue ‘upon change of the operating model involving the Belgian activities’. In addition, it is apparent from the extracts of that advance ruling, produced by the applicants before the Court, that the Belgian tax authorities did indeed take into account the introduction of a new business model with a new ‘consolidated’ group model, in which Atlas Copco Airpower acted as central entrepreneur. Those elements show an increase in activity in Belgium.
143    As regards Anheuser-Busch Inbev and Ampar, the applicants in Case T‑370/16, it should be noted that they explain, in paragraphs 5 to 9 of the application, that a European procurement office was set up in Belgium on 1 January 2010 and that that office became a global procurement office as of 1 January 2011, involving the creation of a new company governed by Belgian law. They state that they were in contact with the Belgian authorities as early as March 2010 and that they applied for an advance ruling in relation to the global procurement office in December 2011. Accordingly, the advance ruling follows on from a group restructuring and an increase in the group’s activities in Belgium.
144    Contrary to what the applicants maintain, the fact that the implementation of their change to the business model was concurrent with the procedure for obtaining an advance ruling and that it was not a ‘future situation’ does not call into question the Commission’s analysis and is not based on a misunderstanding of Belgian tax law. The conditionality whereby the grant of advance rulings is contingent on a change in business model identified by the Commission is linked to a ‘new situation’, and not specifically to a ‘future’ change in the business model, after the advance ruling has been granted.
145    Furthermore, it is the future profits that will be made after implementation of the change to the business model that are covered by the excess profit exemption granted by the advance ruling, which, contrary to what the applicants claim, is consistent with the fact that, as is apparent from paragraph 132 above, advance rulings can apply only to a particular situation or transaction that has not yet had tax effects.
146    As regards the three companies which, according to the applicants, benefited from the excess profit exemption without changing their business model, it must be noted that the applicants do not substantiate their claims and that they do not provide any evidence to show that those companies did not relocate, make new investments or create additional employment. The applicants merely assert, without providing further details or supporting documents, that it is apparent from those companies’ annual reports that they are Belgian undertakings that have foreign subsidiaries and that they made investments outside Belgium. Accordingly, the applicants’ arguments that there were examples of the excess profit exemption being granted in the absence of new investments, relocation or restructuring must be rejected.
(3)    Different treatment in comparison with undertakings that are part of a small group
147    In this instance, the Commission stated, in recital 140 of the contested decision, that the scheme at issue was selective since only Belgian entities forming part of a large or medium-sized multinational group could effectively benefit from the excess profit exemption.
148    Indeed, in recital 140 of the contested decision, the Commission indicated that only entities belonging to a sufficiently large multinational group had an incentive to obtain an advance ruling, given that it was only within large corporate groups that synergies, economies of scale and other benefits were likely to generate a significant profit that would justify the request for an advance ruling. The Commission also noted that the process for obtaining such a ruling required a detailed request presenting the new situation that justified the exemption together with excess profit studies, which was more cumbersome for small corporate groups than for large corporate groups.
149    In that regard, it is not disputed that, within the sample of 22 advance rulings under the scheme at issue that was reviewed by the Commission, as described in recital 65 of the contested decision, and which was considered appropriate and representative in paragraphs 142 to 144 of the judgment on appeal, none of those rulings concerned entities belonging to small groups of undertakings.
150    Furthermore, as indicated in recital 66 of the contested decision, it is undisputed that, during the administrative procedure, following that finding by the Commission on the basis of the sample of 22 advance rulings and in response to a request by the Commission to that effect, the Kingdom of Belgium was unable to substantiate its claim that the exemption had also been granted to undertakings belonging to small corporate groups.
151    Consequently, in the light of the administrative practice referred to by the Commission, it is undertakings forming part of large and medium-sized groups that relied on the excess profit exemption scheme, to the exclusion of undertakings forming part of a small corporate group.
152    That conclusion cannot be called into question by the applicants’ arguments to the effect that the fact that a limited number of undertakings requested a certain type of measure is not sufficient to establish the selective nature of the measure, as is apparent from paragraph 91 of the judgment of 4 June 2015, Commission v MOL (C‑15/14 P, EU:C:2015:362). It is apparent from the circumstances of the case that the Commission did indeed conclude on the basis of an appropriate and representative sample that the advance rulings had been systematically issued in respect of undertakings forming part of large or medium-sized groups.
153    Furthermore, the complaint alleging that the Commission failed to identify a specific category of undertakings likely to benefit from the scheme at issue must also be rejected. It is apparent from the case-law of the Court of Justice that it is not necessary to define a particular category of undertakings favoured by a tax measure in order to be able to establish that it is selective (see, to that effect, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 93).
154    In those circumstances, the Commission cannot be criticised for having stated, in recital 140 of the contested decision, that the system at issue was selective because it was not open to undertakings that were part of a small group.
155    In any event, even if the Commission had erred in relying on that ground relating to different treatment in comparison with undertakings forming part of a small group, that would not affect the validity of the other two grounds put forward by the Commission, which have been examined, respectively, in paragraphs 123 to 128 and 129 to 146 above.
156    In the light of the above, the Court must reject the arguments to the effect that the Commission erred when it pointed out that the scheme at issue was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.
(c)    Conclusion on the primary line of reasoning
157    In the light of the above, the Commission did not err in concluding its primary line of reasoning by finding, first, that the excess profit exemption scheme derogated from the ordinary Belgian corporate income tax system and, secondly, that the scheme at issue was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.
158    Accordingly, the Court must reject the second to sixth parts of the second plea, challenging the Commission’s conclusion, as part of its primary line of reasoning, that the scheme at issue granted its beneficiaries a selective advantage, for the purposes of Article 107 TFEU.
159    In those circumstances, it is not necessary to examine the merits of the arguments put forward by the applicants in the context of the seventh part of their second plea, challenging the subsidiary line of reasoning on selectivity set out in Section 6.3.2.2 of the contested decision.
4.      Whether there is any justification based on the nature and general scheme of the Belgian tax system
160    In the eighth part of their second plea, the applicants submit, in essence, that the excess profit exemption system was justified because it was intended to avoid double taxation. They maintain that the fact that that system is not intended to avoid actual double taxation, but only potential double taxation, is irrelevant. In addition, the applicants criticise the Commission for failing to take account of the fact that the excess profit did not fall within the tax jurisdiction of the Kingdom of Belgium and that it could have fallen within the tax jurisdiction of another Member State.
161    The Commission contends that the applicants’ arguments should be rejected.
162    It should be noted that, in recitals 173 to 181 of the contested decision, the Commission concluded, in essence, that the Kingdom of Belgium had not been able to establish that the measures at issue actually served the purpose of avoiding double taxation. According to the Commission, in so far as Article 185(2)(b) of the CIR 92 provided for a downward adjustment of a company’s profit if it had been included in the profit of another company, the exemption applied by the Belgian tax authorities, without it being necessary to prove that the excess profit to be exempted had been included in the tax base of another company, could not be justified by the general scheme of the system. Thus, the Commission concluded that the unilateral exemption at issue did not address situations of double taxation in a necessary and proportionate manner.
163    In that regard, it must be noted that, according to the case-law, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that context, it is necessary to distinguish between, on the one hand, the objectives attributed to a particular tax regime and which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives. Thus, tax exemptions which are the result of an objective that is unrelated to the tax system of which they form part cannot circumvent the requirements under Article 107(1) TFEU (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64, 65, 69 and 70).
164    In the present case, it has been determined, notably in paragraph 116 above, that the excess profit exemption applied by the Belgian tax authorities was not conditional on it being demonstrated that that profit had been included in the profit of another company. Nor was that excess profit required actually to have been taxed in another State. Accordingly, it must be held that the measures at issue were not conditional on there being a situation of actual or potential double taxation.
165    In those circumstances, it cannot be maintained that the excess profit exemption, as applied by the Belgian tax authorities, was intended to avoid either actual or potential double taxation. Therefore, the Commission was right to conclude that such an exemption did not address situations of double taxation in a necessary and proportionate manner.
166    That conclusion cannot be called into question by the applicants’ arguments to the effect that other mechanisms of Belgian tax law, such as that of the exemption of the amount of foreign branch profits, do not require the amount to be included in the profit of the foreign branch either. First, as stated in paragraph 163 above, it is for the Member State concerned to demonstrate that the measure at issue results directly from the basic or guiding principles of its tax system. As it is, the Kingdom of Belgium did not put forward such an argument in the context of the administrative procedure. Secondly, it should be noted that, in the case of the excess profit exemption scheme, the downward adjustment of taxable profit should normally have been subject, in accordance with the wording of Article 185(2)(b) of the CIR 92, to the condition that the exempted amounts also be included in the profit of another company. Moreover, the fact that another mechanism operates similarly to the scheme at issue is not sufficient to demonstrate that that scheme results directly from the basic or guiding principles of its tax system or to establish, therefore, that it is justified by the nature and general scheme of the Belgian tax system.
167    Furthermore, in Case T‑370/16, Anheuser-Busch Inbev and Ampar argue that Anheuser-Busch Inbev’s excess profit was actually taxed in Brazil, which demonstrates that the Commission’s assertion that the excess profit exemption cannot avoid double taxation is incorrect. That claim is irrelevant for the purposes of calling into question the lawfulness of the contested decision. Even if it were established, the fact that the applicants were actually faced with a situation of double taxation is not such as to affect the finding that the tax authorities did not verify whether the amounts exempted were included in the profits of the other group companies, or the finding that the scheme at issue did not pursue the objective of combating actual or potential double taxation. Moreover, the applicants have adduced no evidence in support of their claim.
168    In addition, the applicants’ arguments to the effect that the excess profit scheme is consistent with the requirements of the Organisation for Economic Co-operation and Development (OECD), since the EU Joint Transfer Pricing Forum identified that the double non-taxation of the exemption constituted a limitation of the international tax regime, must also be rejected. First, those arguments have no connection with the justifications put forward by the Kingdom of Belgium in the context of the administrative procedure. As stated in paragraph 163 above, it is for the Member State to demonstrate that the measure at issue was justified. Secondly, that fact is in no way relevant for the purposes of establishing that the scheme at issue was justified by the nature and general scheme of the Belgian tax system.
169    Lastly, the conclusion drawn in paragraph 165 above cannot be called into question by the applicants’ arguments to the effect that the general scheme of the Belgian tax system allowed only profits falling within the jurisdiction of the Kingdom of Belgium to be taxed. As has been established in paragraphs 115 to 119 above, the Belgian tax authorities’ exemption of excess profit was not provided for by the ordinary Belgian corporate income tax system. Consequently, notwithstanding its exemption under the scheme at issue, that profit was taxable in Belgium under that system, and it cannot therefore be considered not to fall within the tax jurisdiction of the Kingdom of Belgium.
170    In the light of the above, the Court must reject the eighth part of the second plea, alleging that the Commission incorrectly found that there was no justification based on the nature and general scheme of the Belgian tax system, as well as all of the arguments by which the applicants take issue with the Commission’s conclusion that the scheme at issue was capable of granting a selective advantage to its beneficiaries.
5.      Conclusion on the pleas alleging infringement of Article 107 TFEU and manifest errors of assessment, in that the Commission found that the scheme at issue constituted a State aid measure
171    It is apparent from the findings made in paragraphs 80, 105, 156 and 170 above that the Commission did not err when it concluded, in the contested decision, that the scheme at issue granted a selective advantage to its beneficiaries, in so far as that scheme constituted a derogation from the reference system leading to its beneficiaries being treated differently in comparison with economic operators in a comparable situation, which, moreover, was not justified by the nature and general scheme of the tax system.
172    Accordingly, the pleas in law alleging infringement of Article 107 TFEU and manifest errors of assessment, in that the Commission considered that the excess profit system constituted a State aid measure, must be rejected.
C.      The plea alleging failure to state reasons, manifest errors of assessment, infringement of Article 16(1) of Regulation 2015/1589 and breach of the general principles of legality and legal certainty as regards the identification of the beneficiaries of the alleged aid and the order that that aid be recovered
173    The third plea alleges failure to state reasons, manifest errors of assessment, infringement of Article 16(1) of Regulation 2015/1589 and breach of the general principles of legality and legal certainty, in that the Commission identified both the Belgian entities issued with advance rulings and the multinational groups to which those entities belonged as beneficiaries of the alleged aid scheme, and ordered that the aid be recovered from those entities.
174    The Commission contends that the applicants’ arguments should be rejected.
175    In the present cases, the Commission indicated, in recital 183 of the contested decision, that the Belgian entities that had obtained an advance ruling enabling them to deduct profit considered to be excess profit, for the purpose of determining their taxable profit, were the beneficiaries of the State aid at issue.
176    In addition, in recital 184 of the contested decision, the Commission recalled that, in matters of State aid, separate legal entities could be considered to form one economic unit, which was capable of being considered to be the beneficiary of the aid. It thus found that, in the present case, the Belgian entities benefiting from the aid at issue had operated as central entrepreneurs for the benefit of other entities within their corporate groups which they often controlled. It also noted that the Belgian entities were, in turn, controlled by the entity managing the corporate group as a whole. The Commission thus inferred from this that the multinational group as a whole could be seen as the beneficiary of the aid measure.
177    Moreover, in recital 185 of the contested decision, the Commission stated that it was the group as a whole, irrespective of the fact that it was organised in different legal entities, that would have taken the decision to centralise certain activities in Belgium and to make the necessary investments there in order to benefit from advance rulings.
178    Thus, in recital 186 of the contested decision, it concluded that, in addition to the Belgian entities that had been allowed to benefit from the scheme at issue, the multinational groups to which those entities belonged had to be considered beneficiaries of the aid scheme within the meaning of Article 107(1) TFEU.
1.      Failure to state reasons
179    In essence, the applicants complain that the Commission failed to state how the Belgian entities in question constituted a single economic entity with the multinational groups.
180    In that regard, it must be borne in mind that the statement of reasons for a measure adopted by the Commission must enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and so that the EU judicature can exercise its power of review. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraphs 62 and 63; of 16 October 2014, Eurallumina v Commission, T‑308/11, not published, EU:T:2014:894, paragraph 44; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 80).
181    Moreover, it should also be recalled that in the context of decisions concerning aid schemes, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary for the Member States to look at the individual situation of each undertaking concerned (see, to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraphs 89 and 91; 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 63; and of 13 June 2019, Copebi, C‑505/18, EU:C:2019:500, paragraphs 28 to 33). However, the Commission’s decision must be supported by sufficient grounds to permit its implementation by the national authorities.
182    In this instance, as stated in paragraph 175 above, the Commission identified, in recital 183 of the contested decision, the beneficiaries of the aid at issue as being the Belgian entities that had deducted excess profit from their taxable profit pursuant to an advance ruling. In addition, as stated in paragraphs 176 to 178 above, in recitals 184 to 186 of the contested decision, the Commission indicated the reasons for its conclusion that there was an economic unit that was formed by those Belgian entities and the associated companies within the groups to which they belonged, in the light of the case-law.
183    Accordingly, the complaint alleging a failure to state reasons must be rejected.
2.      Manifest error of assessment as regards the identification of the beneficiaries
184    In essence, the applicants argue that the Commission made a manifest error of assessment in identifying, as beneficiaries of the alleged aid scheme, both the Belgian entities that had obtained advance rulings and the multinational groups to which they belonged.
185    In the first place, the applicants claim that the Commission wrongly found that the Belgian entities formed a single economic entity with the multinational group to which they belonged.
186    At the outset, it must be recalled that in a decision which concerns an aid scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see paragraph 181 above).
187    In addition, according to established case-law, the Commission has a broad discretion when it is called upon to determine, in the context of the application of State aid provisions, whether, for the purposes of the application of those provisions in particular, separate legal entities form an economic unit (see, to that effect, judgments of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 63, and of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 314).
188    Thus, it has been held that the Commission was entitled to consider, for the purpose of assessing the beneficiaries of State aid and the appropriate conclusions to be drawn from a decision ordering recovery of that aid, that there was an economic unit among a number of separate legal entities, in particular where they were linked by a relationship of control (see, to that effect, judgments of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 11, and of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 64).
189    In recitals 184 to 186 of the contested decision, the Commission highlighted the fact that, in the context of the scheme at issue, there were links of control between the Belgian entity and the other entities of the group to which they belonged. Thus, the Commission noted the fact that the Belgian entity performed core functions for other entities of the group, which were often controlled by that entity. Moreover, the Commission pointed out that the decisions within the multinational corporate groups regarding the structures that gave rise to the exemptions in question, namely the centralisation of activities in Belgium or investments made in Belgium, were taken by entities within the group and were necessarily taken by those which controlled the group. Furthermore, it is apparent from the Kingdom of Belgium’s description of the excess profit scheme, as set out in particular in recital 14 of the contested decision, that the excess profit exempted was supposedly generated by synergies and economies of scale as a result of the Belgian entities’ membership of a multinational corporate group.
190    It follows that, in the contested decision, the Commission highlighted elements that supported its conclusion that there were, in principle, links of control within the multinational corporate groups to which the Belgian entities that had obtained advance rulings belonged. In view of those elements of the scheme at issue, it cannot be concluded that the Commission exceeded the limits of its discretion when it found that those groups constituted an economic unit with those entities, benefiting from State aid under that scheme, within the meaning of Article 107(1) TFEU.
191    Moreover, the argument that Belgian law does not provide for tax consolidation does not call into question the Commission’s analysis. Indeed, recovery may be ordered from all group entities if they form a single economic unit, regardless of their legal status and of the fact that they have a separate legal personality (see, to that effect, judgment of 19 May 2021, Ryanair v Commission (KLM; Covid‑19), T‑643/20, EU:T:2021:286, paragraph 47 and the case-law cited). The determination of whether there is an economic unit is not based on the tax situation of the groups, or on the possibility of benefiting from tax consolidation, but on the economic links and relationships of control between the companies belonging to those groups. Contrary to what the applicants maintain, it is therefore not possible to assert, as a matter of principle, that the absence of tax consolidation precludes the finding that two companies form an economic unit.
192    Furthermore, in the light of the case-law set out in paragraphs 181 and 186 above, according to which, in the context of an aid scheme, it is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned, the applicants’ arguments criticising the Commission for not specifically establishing the existence of controlling shareholdings or the actual exercise of that control, and for not having identified which entities formed part of the multinational groups at issue, must be rejected. For the same reasons, the fact, even if it were established, that some of the applicants did not participate in the decision to relocate their activities to Belgium or did not request and obtain an advance ruling in their own name is not such as to call into question the lawfulness of the contested decision.
193    In the second place, the applicants maintain that, even if the Belgian entities had formed an economic unit with the multinational groups, the Commission did not examine the existence of an advantage at group level and, therefore, did not establish that those entities actually benefited from the aid granted under the scheme at issue. That argument must also be rejected.
194    First, in so far as the applicants complain that the Commission did not examine the advantage, and thus the reduction of the tax burden, at group level, it must be noted that that argument amounts to criticising the Commission for having analysed only the taxation of companies in Belgium and not those in the other States where other entities of multinational groups benefiting from the aid at issue were located. In that regard, it must be noted that, in the context of a tax measure, the existence of an advantage is determined by reference to normal taxation rules, so that the tax rules of another Member State are not relevant (judgment of 11 November 2004, Spain v Commission, C‑73/03, not published, EU:C:2004:711, paragraph 28). Consequently, where it has been established that an undertaking forming part of a multinational group benefits, under a tax measure granted by a Member State, from a reduction of the tax burden that it would otherwise have had to bear in accordance with the normal rules of taxation, the tax situation of another undertaking of the same group in another Member State has no bearing on the existence of an advantage.
195    Secondly, as stated in paragraph 186 above, in a decision concerning an aid scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases. Therefore, it was not necessary for the Commission to examine, in the contested decision, whether the beneficiaries of the scheme at issue had actually benefited from the aid granted under that scheme.
196    In the light of the above considerations, the arguments alleging that the Commission made manifest errors of assessment in identifying the aid beneficiaries must be rejected.
3.      Breach of the principle of legality and the principle of legal certainty and infringement of Article 16(1) of Regulation 2015/1589
197    In essence, the applicants submit that the Commission breached the principle of legality and the principle of legal certainty and infringed Article 16(1) of Regulation 2015/1589, because it ordered that the aid be recovered from the multinational groups to which the Belgian entities that adjusted their taxable profit pursuant to an advance ruling belonged. In support of that claim, the applicants merely submit that only entities that were granted an advance ruling could benefit from the exemptions in question.
198    In that regard, it is sufficient to note that, as stated in paragraphs 186 to 191 above, the Commission did not err in finding that the multinational groups to which the Belgian entities belonged constituted an economic unit with those entities benefiting from State aid under that scheme within the meaning of Article 107(1) TFEU.
199    Accordingly, the complaints alleging breach of the principle of legality and of the principle of legal certainty and infringement of Article 16(1) of Regulation 2015/1589 must be rejected.
200    In the light of the above considerations, the third plea must be rejected in its entirety.
D.      The plea alleging breach of the principles of legal certainty, the protection of legitimate expectations and sound administration
201    The fourth plea alleges breach of the principles of legal certainty, the protection of legitimate expectations and sound administration. The applicants criticise the Commission for having examined simultaneously the ‘advantage’ and ‘selectivity’ criteria, introduced its own notion of an arm’s length principle, committed numerous errors in relation to Belgian law and, lastly, examined only 22 tax rulings out of the 66 rulings issued by the Belgian authorities.
202    The Commission contends that the applicants’ arguments should be rejected.
203    In the first place, the complaints alleging breach of the principles of legal certainty and the protection of legitimate expectations must be rejected, in so far as the arguments on which they are based have also been rejected with the second plea.
204    First, for the reasons set out in paragraphs 82 to 93 above, the arguments based on the conflating of the criteria of advantage and selectivity must be rejected.
205    Secondly, for the reasons set out in paragraph 159 above, it is not necessary to examine the merits of the applicants’ arguments relating to breach of the principle of legal certainty and breach of the principle of protection of legitimate expectations as a result of the Commission’s application of its own arm’s length principle, which relate to the Commission’s subsidiary line of reasoning as to selectivity.
206    In the second place, as regards the complaint alleging breach of the principle of sound administration, it must be borne in mind that, according to that principle, the Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90; of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 63; and of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 67).
207    The information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out for the purposes of establishing the existence of an aid scheme and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).
208    First, it should be noted that, in the context of the examination of the existence of an aid scheme, the Commission is not required to carry out an analysis of the individual situation of each beneficiary or to calculate the gap between the tax burden of the Belgian entities which obtained an advance ruling and the tax burden which they would have had to bear in the absence of such rulings (see paragraph 181 above).
209    Secondly, as the Court of Justice held in paragraphs 142 to 146 of the judgment on appeal, the Commission was fully entitled to rely on the sample of 22 advance rulings, which was representative of the systematic practice of the Belgian tax authorities, for the purposes of examining, in the present cases, the existence of an aid scheme. Moreover, as was held in paragraph 144 of the judgment on appeal, the Commission did explain why it had considered that sample to be representative.
210    It follows that the Commission cannot be criticised for failing to carry out an examination of individual cases, since those elements are not relevant for the purposes of examining the existence of an aid scheme.
211    In addition, in so far as the applicants complain that the Commission failed to examine, more specifically, whether any of the beneficiaries of the excess profit exemption system had encountered a problem of double taxation, it should be added that that factor is not relevant to the Commission’s analysis. As is apparent from recital 98 of the contested decision, one of the elements characterising the practice of the Belgian tax authorities at issue was precisely to authorise a unilateral downward adjustment without it being necessary to establish that the profit to be adjusted was included in the profit of another company. The non-taxation of excess profit was not therefore subject to the condition that it be demonstrated that it had been included in the profit of another company. Since, as stated in paragraphs 72 and 164 above, the measures at issue were not conditional on the existence or non-existence of situations of double taxation, the question whether, for some of the beneficiaries of the scheme, the excess profit had actually been taxed in another country is irrelevant.
212    Furthermore, the applicants claim that the significant number of errors of assessment regarding the legal framework and facts of the contested decision demonstrates a lack of diligence on the part of the Commission. However, those various errors relied on by the applicants are unfounded, as is apparent in particular from paragraphs 44 to 67 above. In any event, the mere fact that the applicants rely on errors of assessment by the Commission is not sufficient to establish that the Commission failed to fulfil its obligation to conduct a diligent and impartial examination of the case.
213    Since all of the pleas put forward by the applicants have been rejected, the actions must be dismissed in their entirety, without it being necessary to adopt a measure of organisation of procedure whereby the Commission would be ordered to produce the table which it provided in Case T‑263/16 RENV, Magnetrol International v Commission, as requested by the applicants in their observations of 4 April 2022. The Court considers that that request is irrelevant for the purposes of the present judgment.
IV.    Costs
214    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants in the present cases have been unsuccessful, they must be ordered to bear their own costs relating to these cases and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber, Extended Composition),
hereby:
1.      Orders that Cases T‑278/16 and T‑370/16 be joined for the purposes of the present judgment;
2.      Dismisses the actions;
3.      Orders Atlas Copco Airpower and Atlas Copco AB to bear their own costs and to pay those incurred by the European Commission in Case T‑278/16;
4.      Orders Anheuser-Busch Inbev and Ampar to bear their own costs and to pay those incurred by the Commission in Case T‑370/16.
Marcoulli
Frimodt Nielsen
Tomljenović
Norkus
Valasidis
Delivered in open court in Luxembourg on 20 September 2023.
V. Di Bucci
M. van der Woude
Registrar
President
Table of contents
I. Background to the dispute
II. Forms of order sought
III. Law
A. The plea alleging an error of law, a manifest error of assessment and a failure to state reasons, in so far as the contested decision found that there was an aid scheme
B. The pleas alleging infringement of Article 107 TFEU and manifest errors of assessment, in that the contested decision classified the scheme at issue as a State aid measure
1. Identification of the reference system
(a) The applicants’ arguments challenging the Commission’s analysis for the purposes of identifying the reference system
(b) The errors in the interpretation of Belgian tax law relied on by the applicants
(c) The applicants’ arguments challenging the non-inclusion of the excess profit scheme in the reference system
(d) The applicants’ arguments challenging the identification of the objective of the reference system
(e) Conclusion on the identification of the reference system
2. Analysis of the criterion of advantage
(a) The joint analysis of advantage and selectivity
(b) Proof of the existence of an advantage
3. The primary line of reasoning to establish the existence of a selective advantage
(a) Whether there is a derogation from the reference system as a result of the Belgian tax authorities’ application of Article 185(2)(b) of the CIR 92
(b) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation
(1) Different treatment of beneficiaries forming part of a multinational group of undertakings
(2) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium
(3) Different treatment in comparison with undertakings that are part of a small group
(c) Conclusion on the primary line of reasoning
4. Whether there is any justification based on the nature and general scheme of the Belgian tax system
5. Conclusion on the pleas alleging infringement of Article 107 TFEU and manifest errors of assessment, in that the Commission found that the scheme at issue constituted a State aid measure
C. The plea alleging failure to state reasons, manifest errors of assessment, infringement of Article 16(1) of Regulation 2015/1589 and breach of the general principles of legality and legal certainty as regards the identification of the beneficiaries of the alleged aid and the order that that aid be recovered
1. Failure to state reasons
2. Manifest error of assessment as regards the identification of the beneficiaries
3. Breach of the principle of legality and the principle of legal certainty and infringement of Article 16(1) of Regulation 2015/1589
D. The plea alleging breach of the principles of legal certainty, the protection of legitimate expectations and sound administration
IV. Costs
*      Language of the case: English.