62011TJ0399(01)
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
15 November 2018 (
*1
)
(State aid — Provisions concerning corporate tax allowing companies which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in companies which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Selectivity — Reference system — Derogation — Difference in treatment — Justification of the difference in treatment — Undertakings benefiting from the measure — Legitimate expectations)
In Case T‑399/11 RENV,
Banco Santander, SA, established in Santander (Spain),
Santusa Holding, SL, established in Boadilla del Monte (Spain),
represented by J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, lawyers,
applicants,
supported by
Federal Republic of Germany, represented by T. Henze, acting as Agent,
by
Ireland, represented initially by G. Hodge and E. Creedon, and subsequently by G. Hodge and M. Browne, acting as Agents,
and by
Kingdom of Spain, represented by M. Sampol Pucurull, acting as Agent,
interveners,
v
European Commission, represented by R. Lyal, B. Stromsky, C. Urraca Caviedes and P. Němečková, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking annulment of Article 1(1) and Article 4 of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1),
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of S. Gervasoni (Rapporteur), President, L. Madise, R. da Silva Passos, K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written part of the procedure and further to the hearing on 31 January 2018,
gives the following
Judgment
I. Background to the dispute
1
On 10 October 2007, after a number of written questions had been sent to it in 2005 and 2006 by Members of the European Parliament and after a private operator had submitted a complaint to it in 2007, the Commission of the European Communities decided to initiate the formal investigation procedure, under Article 108(2) TFEU, with respect to an arrangement provided for in Article 12(5) — a provision introduced into the Ley del Impuesto sobre Sociedades (Spanish Corporate Tax Law) by Ley 24/2001, de Medidas Fiscales, Administrativas y del Orden Social (Law 24/2001 on fiscal, administrative and social measures) of 27 December 2001 (BOE No 313 of 31 December 2001, p. 50493), and reproduced in Real Decreto Legislativo 4/2004, por el que se aprueba el texto refundido de la Ley del Impuesto sobre Sociedades (Royal Legislative Decree 4/2004 approving the recast text of the Corporate Tax Law) of 5 March 2004 (BOE No 61 of 11 March 2004, p. 10951, ‘the measure at issue’ or ‘the scheme at issue’).
2
The measure at issue provides that, should an undertaking which is taxable in Spain acquire a shareholding in a ‘foreign company’, where that shareholding is at least 5% and the shareholding at issue is held without interruption for at least one year, the financial goodwill (see paragraphs 65 and 67 below) resulting from that shareholding may be deducted, in the form of an amortisation, from the basis of assessment for the corporate tax for which the undertaking is liable. The measure at issue states that, to be classified as a ‘foreign company’, a company must be subject to an identical tax to the tax applicable in Spain and its income must derive mainly from business activities carried out abroad.
3
By letter of 5 December 2007, the Commission received comments from the Kingdom of Spain on the decision initiating the formal investigation procedure (‘the initiation decision’). Between 18 January and 16 June 2008, the Commission also received comments from 32 interested third parties. By letters of 30 June 2008 and 22 April 2009, the Kingdom of Spain gave its reactions to the third parties’ comments.
4
On 18 February 2008, 12 May 2009 and 8 June 2009, technical meetings were organised by the Commission with the Spanish authorities. Other technical meetings were also held with some of the 32 interested third parties.
5
By letter of 14 July 2008 and by email of 16 June 2009, the Kingdom of Spain submitted further information to the Commission.
6
The Commission terminated the procedure, as regards shareholding acquisitions within the European Union, by its Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48, ‘the decision of 28 October 2009’).
7
The Commission declared that the scheme at issue, which constitutes a tax advantage enabling Spanish companies to amortise the financial goodwill resulting from the acquisition of shareholdings in non-resident companies, was incompatible with the internal market where it applied to the acquisition of shareholdings in companies established within the European Union.
8
However, the Commission maintained the procedure open as regards shareholding acquisitions outside the European Union, the Spanish authorities having given an undertaking that they would provide additional details concerning the obstacles to cross-border mergers outside the European Union which they had mentioned.
9
The Kingdom of Spain provided the Commission with information relating to direct investments by Spanish companies outside the European Union on 12, 16 and 20 November 2009 and on 3 January 2010. The Commission also received observations from several interested third parties.
10
On 27 November 2009, and on 16 and 29 June 2010, technical meetings took place between the Commission and the Spanish authorities.
11
On 12 January 2011, the Commission adopted Decision 2011/282/EU on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1, ‘the contested decision’). That decision, in its version published in the Official Journal of the European Union on 21 May 2011, was corrected on 3 March 2011. A second correction of it was made and published in the Official Journal on 26 November 2011.
12
The contested decision declares the scheme at issue to be incompatible with the internal market where it applies to the acquisition of shareholdings in companies established outside the European Union (Article 1(1) of the contested decision). Article 4 of that decision provides in particular that the Kingdom of Spain should recover the aid granted.
II. Procedure and forms of order sought
13
By application lodged at the Registry of the General Court on 29 July 2011, the applicants, Banco Santander, SA and Santusa Holding, SL, brought an action for annulment of the contested decision.
14
By judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938), the General Court upheld that action on the ground that the Commission had incorrectly applied the condition of selectivity laid down in Article 107(1) TFEU.
15
Moreover, the decision of 28 October 2009 has also been annulled by the General Court in its judgment of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939).
16
By application lodged at the Registry of the Court of Justice on 19 January 2015, the Commission brought an appeal against the judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938). That appeal, which was registered under number C‑21/15 P, was joined to the appeal, registered under number C‑20/15 P, that the Commission had brought against the judgment of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939).
17
The applicants, supported by the Federal Republic of Germany, by Ireland and by the Kingdom of Spain, requested that the appeals be dismissed.
18
By judgment of 21 December 2016, Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, ‘the judgment in World Duty Free’, EU:C:2016:981), the Court of Justice set aside the judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938), referred the case back to the General Court and reserved the costs. The Court of Justice also set aside the judgment of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939).
19
In accordance with Article 217(1) of the Rules of Procedure of the General Court, the main parties lodged their written observations on 2 March 2017 and the Kingdom of Spain on 3 March 2017.
20
In accordance with Article 217(3) of the Rules of Procedure, the main parties and the Kingdom of Spain lodged their supplementary statements of written observations on 24 April 2017.
21
Upon hearing the report of the Judge-Rapporteur, the General Court decided to open the oral part of the procedure.
22
By decision of the President of the Ninth Chamber (Extended Composition) of the General Court of 8 December 2017, after hearing the parties, this case and Case T‑219/10 RENV, World Duty Free Group v Commission, were joined for the purposes of the oral part of the procedure, in accordance with Article 68 of the Rules of Procedure.
23
The parties presented oral argument at the hearing on 31 January 2018.
24
The applicants claim that the Court should:
–
annul Article 1(1) of the contested decision in so far as it declares that the scheme at issue contains elements of State aid;
–
alternatively, annul Article 1(1) of the contested decision in so far as it declares that the scheme at issue contains elements of State aid when applied to acquisitions of shareholdings which involve acquisition of control;
–
alternatively, annul Article 4 of the contested decision in so far as it provides for the recovery of aid for transactions carried out prior to the publication of the contested decision in the Official Journal of the European Union;
–
alternatively, annul Article 1(1) of the contested decision and, in the further alternative, Article 4, in so far as those provisions refer to transactions carried out in the United States, Mexico and Brazil;
–
order the Commission to pay the costs.
25
The applicants also request that the Court adopts measures of organisation of procedure in order to obtain documents from the Commission.
26
The Commission contends that the Court should:
–
dismiss the action;
–
order the applicants to pay the costs.
27
The Kingdom of Spain claims that the Court should:
–
uphold the action for annulment;
–
order the Commission to pay the costs.
III. Law
28
In support of their action, the applicants put forward three pleas in law, the first alleges that the measure at issue is not selective, the second alleges an error in determining the beneficiary of the measure at issue and the third alleges infringement of the principle of the protection of legitimate expectations.
A. The first plea in law, alleging that the measure at issue is not selective
1.
Arguments of the parties
29
In the context of the first plea, the applicants raise three complaints, the first alleges that the measure at issue is not prima facie selective, the second alleges an error in identifying the reference system (or reference framework or even common or normal regime) and the third alleges that the measure at issue is justified in the light of the nature and general scheme of the system of which it forms part.
30
In the context of the first complaint, the applicants submit, in essence, that the scheme at issue is not selective as provided for in Article 107(1) TFEU since the benefit it provides is available to any undertaking. They state that the selectivity adopted in the contested decision is based on circular and tautological reasoning in accordance with which only those undertakings which benefit from the measure at issue may benefit from it.
31
The applicants also rely on statistical data which are capable of substantiating the fact that the measure at issue could have benefited undertakings of different sizes and from different sectors. Finally, they rely on an inconsistency on the Commission’s part in terms of its own practice.
32
In the context of the second complaint, the applicants submit that, while Spanish undertakings may combine their business with resident companies without difficulty, which therefore allows them to benefit from an amortisation of goodwill, they face difficulties which prevent them from combining their business, and therefore benefiting from that amortisation, in respect of transactions which concern non-resident companies, in particular in States that are not members of the European Union. Depending on the type of transaction involved, the undertakings therefore find themselves in differing financial and legal situations. Therefore, the measure at issue, which applies only to the acquisition of shareholdings in non-resident companies, cannot be regarded as introducing a derogation from a common or normal tax regime, that is to say it differentiates between transactions which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation.
33
The applicants refer in that regard to a number of judgments of the Court of Justice. They also submit that the Commission has not explained sufficiently why a separate reference system, which is specific to the acquisition of shareholdings in non-resident companies, cannot be accepted.
34
According to the applicants, although, in the decision of 28 October 2009, the Commission acknowledged a difference in the situations of the acquisition of shareholdings in resident companies and the acquisition of shareholdings in non-resident companies, it no longer recognised it in the contested decision. The applicants highlight the inconsistency on the Commission’s part and therefore argue, in essence, that it has breached the principle of the protection of legitimate expectations. In this regard, the applicants have asked that an exchange of correspondence between the Commission and the Kingdom of Spain be submitted.
35
The applicants submit that the existence of legal obstacles which preclude business combinations with non-resident companies is established. In that regard, they criticise the Commission’s assessment of the merger situation in the United States, Brazil, Mexico and Japan. They submit that the conclusion reached by the Commission in that regard is insufficiently reasoned.
36
They accuse the Commission of having taken account only of explicit legal obstacles.
37
They also accuse the Commission of examining the situation of certain countries only, whereas the Kingdom of Spain had expressly asked the Commission to examine the situation of each of the countries cited in the studies that had been submitted during the formal investigation procedure.
38
In the context of the third complaint, the applicants submit, in the alternative, that the derogation introduced by the measure at issue is, in any event, justified by the logic of the Spanish tax system. The measure at issue enables fiscal neutrality to be ensured between transactions involving the acquisition of shareholdings in resident companies and transactions involving the acquisition of shareholdings in non-resident companies.
39
In that regard, the applicants rely on the Commission’s decision-making practice.
40
The applicants also criticise the Commission’s reasoning, in accordance with which the measure at issue is disproportionate and too imprecise in nature. According to the applicants, the measure at issue applied, rightly, until the 5% shareholding threshold was reached. In any event, the Commission should have declared, as the Kingdom of Spain expressly requested it to do so, that the measure at issue was not selective with regard to the acquisition of majority shareholdings. They refer in that regard to several judgments and a letter from the Commissioner responsible for competition in which he gave his opinion on the possibility of maintaining the scheme at issue.
41
The Kingdom of Spain states that the objective of the measure at issue is to ensure that the principle of fiscal neutrality is observed. According to that principle, the tax effects of the same investment should be identical.
42
The Kingdom of Spain considers that the measure at issue is not related to the ‘competitiveness principle’.
43
It also submits that the advantage conferred by the measure at issue is available to any undertaking, whatever its business activity.
44
It adds that the measure at issue merely ensures that an investment is recovered by enabling the cost of that investment to be deducted when the amount subject to tax is assessed.
45
The Kingdom of Spain submits that the Commission did not take into account the legal and practical obstacles to cross-border business combinations, even though it had pointed out those difficulties to the Commission during the formal investigation procedure. It adds that the obstacles in question existed when the measure at issue entered into force and that they have not been eliminated, even within the European Union, despite the subsequent adoption of rules on that subject.
46
The Kingdom of Spain submits that the Commission did not carry out a rigorous examination of the legal and factual situation concerning the obstacles to cross-border mergers. It states that the Commission had extensive documentation that it had provided to it. The existence of obstacles had been acknowledged by the Commissioner responsible for competition in the context of an exchange of correspondence with the Spanish national administration. Those obstacles cannot be limited to explicit legal obstacles.
47
The Kingdom of Spain submits that the existence of legal obstacles, but also economic and practical obstacles to cross-border business combinations, is established. It criticises in particular the reasoning followed by the Commission with regard to the United States, Mexico and Brazil.
48
The Commission contends that the analysis of selectivity carried out in the contested decision is consistent with the case-law, since that analysis is based on the definition of the relevant reference framework and it goes on to note the existence of an exception created by the measure at issue. The Commission takes the view, in its observations on the judgment in World Duty Free, that its analysis has been confirmed by that judgment.
49
According to the Commission, although the reference system taken into account was limited only to the acquisition of shareholdings in non-resident companies, situations which bear no significant similarity nevertheless benefit from the advantage provided for by the measure at issue, since that reference system also applies to acquisitions of minority shareholdings.
50
The Commission adds that the measure at issue applies to minority shareholdings that are unrelated to business combinations.
51
Moreover, the measure at issue is not related to the possibility of combining businesses, in particular with regard to undertakings which acquire minority shareholdings in non-resident companies.
52
Furthermore, according to the Commission, it is sufficient that obstacles to cross-border business combinations are not found in some countries in order for the contested decision to be confirmed as lawful.
53
The Commission, states, in addition, that the applicants have no basis to rely on a breach of the principle of the protection of legitimate expectations.
54
The Commission also states that the measure at issue is not justified by the logic of the Spanish tax system. It relies, in particular, on the fact that, to amortise goodwill in respect of national transactions, a business combination must necessarily take place, whereas, with regard to cross-border transactions, the measure at issue applies after the mere acquisition of a 5% shareholding in the non-resident undertaking.
55
The Commission also points out that, under the normal regime, the amortisation of goodwill in respect of acquisitions of shareholdings of only 5% is possible only if those shareholding acquisitions are followed by a business combination. This means that an undertaking which acquires a shareholding of at least 5% in a resident company, but which is unable to merge with that company, on account of the fact, for example, that it does not have a sufficient number of shares, will not be able to benefit from the amortisation of goodwill. By contrast, an undertaking which, in a similar way, acquires shares in a non-resident company and is also unable to merge with that company, because it does not have a sufficient number of shares, will be able to benefit from the measure at issue and amortise the goodwill.
56
The Commission notes that, contrary to what, in its view, is stated in the application, the Spanish authorities did not ask the Commission to find that there was no aid where the measure at issue had been applied to majority shareholdings.
2.
Findings of the Court
57
First, it must be recalled that, according to the settled case-law of the Court of Justice, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see judgment in World Duty Free, paragraph 53 and the case-law cited).
58
So far as concerns the condition relating to the selectivity of the advantage, which is a constituent factor in the concept of ‘State aid’, within the meaning of Article 107(1) TFEU, it is clear from equally settled case-law of the Court of Justice that the assessment of that condition requires a determination whether, under a particular legal regime, the national measure at issue is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which accordingly suffer different treatment that can, in essence, be classified as discriminatory (see judgment in World Duty Free, paragraph 54 and the case-law cited).
59
Further, where the measure at issue is conceived as an aid scheme and not as individual aid, it is for the Commission to establish that that measure, although it confers an advantage of general application, confers the benefit of that advantage exclusively on certain undertakings or certain sectors of activity (see judgment in World Duty Free, paragraph 55 and the case-law cited).
60
As regards, in particular, national measures that confer a tax advantage, it must be recalled that a measure of that nature which, although not involving the transfer of State resources, places the recipients in a more favourable position than other taxpayers is capable of procuring a selective advantage for the recipients and, consequently, constitutes State aid, within the meaning of Article 107(1) TFEU. However, a tax advantage resulting from a general measure applicable without distinction to all economic operators does not constitute such aid (see judgment in World Duty Free, paragraph 56 and the case-law cited).
61
In that context, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the common or ‘normal’ tax regime applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that common regime in so far as it differentiates between operators who, in the light of the objective pursued by that common tax regime, are in a comparable factual and legal situation (see judgment in World Duty Free, paragraph 57 and the case-law cited).
62
The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general scheme of the system of which the measures form part (see judgment in World Duty Free, paragraph 58 and the case-law cited).
63
Therefore, using a three-step method, as set out in paragraphs 61 and 62 above, it is possible to conclude that a national tax measure is selective.
64
Again as a preliminary point, it is also necessary to reiterate the grounds of the contested decision on the basis of which the Commission concluded that the measure at issue was selective.
65
First of all, it should be noted that goodwill is defined in the contested decision as representing the value of a well-respected business name, good customer relations, employee skills, and other such factors expected to translate into greater than apparent earnings in the future (recital 27 of the contested decision). It arises as the accounting difference between the acquisition cost and the market value of the assets that make up the business acquired or held by the combined company (recital 123 of the contested decision). When the acquisition of a company is made by way of the acquisition of its shares, the goodwill corresponds to the price paid for the acquisition of a company in excess of the market value of the assets constituting that company and this difference should be recorded in the accounts of the acquiring company as a separate intangible asset as soon as that company takes control of the acquired company (recital 27 of the contested decision).
66
Recital 28 of the contested decision states that, under Spanish tax principles, with the exception of the measure at issue, goodwill can only be amortised following a ‘business combination’, in the broad sense of that expression, that arises either as a result of acquisition or contribution of the assets constituting independent businesses or following a merger or de-merger operation.
67
Financial goodwill is defined in the contested decision as equivalent to the goodwill that would have been recorded in the accounts of the acquiring company if that acquiring company and the acquired company had merged. Therefore, according to the Commission, the concept of financial goodwill, referred to in the measure at issue, introduces into the field of share acquisitions a concept that is usually used for business combination transactions (recital 29 of the contested decision).
68
In the contested decision, the Commission considered that the relevant reference framework or system was the general Spanish corporate tax system and, more precisely, the rules on the tax treatment of financial goodwill in the Spanish tax system (recital 118 of the contested decision). It added that it confirmed the reference system adopted in the decision of 28 October 2009. However, in recital 89 of the decision of 28 October 2009, it had stated that ‘the measure at issue [should have been] assessed in the light of the general provisions of the corporate tax system as applicable to situations in which the emergence of goodwill [led] to a fiscal benefit … because the Commission [considered] that the situations in which financial goodwill [could have been] amortised [did] not cover the whole category of taxpayers placed in a similar factual and legal situation’. The Commission thus took the view that the reference framework could not be limited to the tax treatment of financial goodwill introduced by the measure at issue, since that measure benefited only the acquisition of shareholdings in non-resident companies, and that it was therefore the general provisions of the corporate tax system on the tax amortisation of goodwill (‘the tax treatment of goodwill’) which constituted the reference framework.
69
The Commission also stated that, by allowing the financial goodwill that would have been booked if the businesses had combined to appear even in the absence of a business combination, the measure at issue constituted an exception to the reference system (recital 124 of the contested decision), since that measure, for accounting reasons, provided for the amortisation of goodwill only in the event of a combination of that kind (recitals 28, 29 and 123 of the contested decision).
70
The Commission added that the measure at issue could not be considered a new general accounting rule in its own right since the amortisation of goodwill deriving from the simple acquisition of shareholdings was allowed only in the case of cross-border shareholding acquisitions and not in the case of the acquisition of domestic shareholdings. Therefore, the measure at issue introduced, in the Commission’s view, a difference in treatment between domestic transactions and cross-border transactions (recital 124 of the contested decision).
71
The Commission continued by noting, in recital 136 of the contested decision, that the measure at issue was unnecessary in terms of the logic of the tax system. It added that it was also disproportionate. It should be noted that, in recital 106 of the contested decision, the Commission had already pointed out that the measure at issue was imprecise and indiscriminate, but also discriminatory, in nature.
72
The Commission stated that the measure at issue led to different taxation being imposed on companies in comparable situations just because some of them were involved in investment opportunities abroad (recital 136 of the contested decision) and that, as it applied even to acquisitions of minority shareholdings, it also led to different situations being accorded the same treatment (recital 139 of the contested decision).
73
The Commission concluded that the selective advantage aspect of the tax scheme under review was not justified by the nature of the tax system (recital 140 of the contested decision).
74
It must be added that the Commission also checked whether explicit legal obstacles to cross-border business combinations concerning non-EU Member States existed (recitals 113 to 120 of the contested decision).
75
The Commission stated that it had investigated the legislation of those non-EU countries simply in order to check the Spanish authorities’ allegations about the existence of explicit legal obstacles to cross-border combinations. It pointed out that that examination did not constitute recognition of the fact that such obstacles could have justified a different reference system from the one it had used (recital 113 of the contested decision).
76
On the basis of an examination of that kind, the Commission concluded that there was ‘no reason to depart from the reference system in the opening Decision and the [decision of 28 October 2009]’ (recital 118 of the contested decision).
77
It must be assessed whether, in the light of each of the three complaints raised by the applicants, the Commission was entitled to conclude, on the basis of the case-law which has been recalled and the reasons that have just been given, that the measure at issue was selective.
(a)
The measure at issue is not prima facie selective
78
In the judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938), the Court, in essence, took the view that it was not possible to hold that a measure which conferred a tax advantage distorted competition by favouring certain undertakings or the production of certain goods if that advantage was available to all undertakings liable for corporate tax in the Member State that has adopted the measure at issue. The Court considered that the advantage conferred by a domestic tax measure of general application was available to any undertaking where it was not possible to identify a category of undertakings which could not take advantage of the measure or, consequently, a category of undertakings to which the advantage conferred by the measure was restricted (paragraphs 38 to 49, 56 and 83 to 85).
79
The Court took the view that the advantage conferred by the measure at issue was available to any undertaking liable for corporate tax in Spain which chooses to acquire shareholdings in non-resident companies. The Court stated that any undertaking was able freely to make such a choice without, inter alia, the sector of activity of the undertaking or its size being a restriction in that regard and that the same undertaking was able, successively, or even at the same time, to acquire shareholdings in resident companies and non-resident companies (judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938, paragraphs 57 to 65).
80
On the basis of that finding regarding the accessibility of the measure at issue, the Court, applying the reasoning set out in paragraph 78 above, concluded that, in order to find that the measure at issue was selective, the Commission could not simply state that it derogated from the reference system, that it benefited only undertakings which carried out the transactions to which it refers and that it ‘[was] intended to promote the export of capital’.
81
By the judgment in World Duty Free, the Court of Justice invalidated the reasoning set out in paragraph 78 above, taking the view that it introduced a supplementary requirement, relating to the identification of a particular category of undertakings which could be distinguished by reason of specific properties, which cannot be inferred from the case-law (see paragraphs 69 to 71 and 78).
82
The Court of Justice held that a condition for the application or the receipt of tax aid may have been grounds for a finding that that aid is selective, if that condition led to a distinction being made between undertakings which, in the light of the objective pursued by the ordinary system which forms the reference framework, are in a comparable factual and legal situation, and if, therefore, it represented discrimination against undertakings which were excluded from it (judgment in World Duty Free, paragraph 86). The Court of Justice also held that the fact that, when they acquire shareholdings in companies resident for tax purposes in Spain, resident undertakings are unable to obtain the advantage conferred by the measure at issue could have allowed the conclusion that that measure is selective (judgment in World Duty Free, paragraph 87).
83
Thus, a finding that the measure is selective is not necessarily the result of it being impossible for certain undertakings to benefit from the advantage provided for by the measure at issue on account of legal, economic or practical restrictions which prevent the performance of the transaction governing whether that advantage is granted, but may arise merely from the finding that a transaction exists which, although it is comparable to the transaction which governs whether the advantage in question is granted, does not give rise to the right to that advantage. Accordingly, a tax measure may be selective even though any undertaking may freely choose whether to perform the transaction which governs whether the advantage provided for by that measure is granted.
84
Emphasis has therefore been placed on a concept of selectivity which is based on the distinction between undertakings which choose to perform certain transactions and other undertakings which choose not to perform them, and not on the distinction between the undertakings from the perspective of their specific characteristics.
85
The Court should therefore apply that reasoning to the measure at issue.
86
However, it is impossible not to note that the measure at issue gives undertakings taxable in Spain which have chosen to acquire shareholdings in non-resident companies an advantage over undertakings taxable in Spain which have chosen to acquire shareholdings in resident companies.
87
When they perform a transaction to acquire a shareholding in a resident company, undertakings taxable in Spain cannot, in respect of that transaction, obtain the advantage provided for by the measure at issue.
88
Thus, where an undertaking taxable in Spain has chosen to acquire shareholdings in a non-resident company, it is therefore — within the framework of that transaction — treated more favourably than any other undertaking, including itself (see paragraph 79 above), which chooses to acquire shareholdings in a resident company.
89
It follows that a national tax measure such as the measure at issue, which grants an advantage upon satisfaction of the condition that an economic transaction is performed, may be selective including where, having regard to the characteristics of the transaction concerned, any undertaking may freely choose whether to perform that transaction.
90
The applicant’s first complaint, alleging, in essence, that any undertaking is able to benefit from the advantage conferred by the measure at issue, must therefore be rejected without there being any need to grant the applications for measures of organisation of procedure submitted by the applicants in that regard, since those measures are deemed to be capable of establishing that any undertaking is able to benefit from the advantage conferred by the measure at issue.
(b)
The existence of a derogation
91
By their second complaint, the applicants criticise the Commission’s application in the present case of the first two steps of the method mentioned in paragraphs 61 and 62 above, on the basis of which it is possible to determine whether there is a derogation from the common or normal tax regime, that is to say a differentiation between transactions which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation. They dispute, in essence, the comparisons taken into account by the Commission in the context of those two steps.
92
It is therefore for the Court to assess whether the Commission has correctly implemented the first two steps of the method of analysis mentioned in paragraphs 61 and 62 above, namely the identification of a common national tax regime (first step) and the finding of a derogation from that tax regime (second step).
(1) The first step
93
As was pointed out in paragraph 68 above, the Commission used as the reference framework for its analysis as to selectivity the tax treatment of goodwill and did not limit that framework to the tax treatment of financial goodwill only. It took the view that the situations in which financial goodwill could have been amortised did not cover the whole category of taxpayers which were in a similar factual and legal situation. Therefore, in the contested decision, it did not limit the examination of the selectivity criterion to acquisitions of shareholdings in non-resident companies only.
94
However, according to the applicants, while Spanish undertakings may combine their business with resident companies without difficulty, which allows them to benefit from an amortisation of goodwill, they face difficulties which prevent them from combining their business, and therefore benefiting from that amortisation, in respect of transactions which concern non-resident companies, in particular in States that are not members of the European Union. Depending on the type of transaction involved, the undertakings therefore find themselves in differing financial and legal situations justifying different tax treatment. Therefore, the measure at issue, which applies only to the acquisition of shareholdings in non-resident companies, cannot be regarded as introducing a differentiation between transactions which are in a comparable factual and legal situation.
95
The arguments put forward by the applicants lead the Court to question the relevance of the reference framework chosen by the Commission in the present case, which, according to the applicants, should be limited, on account of obstacles to cross-border business combinations, to the measure at issue, which applies only to the acquisition of shareholdings in non-resident companies.
96
At issue here is the identification of a common national tax regime, that is to say the first of the three steps in the method implemented by the Court of Justice in order to examine whether or not a national tax measure is selective (see paragraphs 61 and 62 above).
97
First, it must be noted that that first step is mentioned in paragraph 16 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation (OJ 1998 C 384, p. 3, ‘the 1998 notice’). That paragraph states that the common system applicable should first be determined.
98
Moreover, in the notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1, ‘the 2016 notice’), the Commission states that the reference system constitutes the benchmark against which the selectivity of a measure is assessed (paragraph 132).
99
Secondly, it should be noted that, although the case-law of the Court of Justice has brought clarification enabling the geographical scope of the reference framework to be defined before its relationship with the measure considered to constitute aid is analysed (see, to that effect, judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraphs 64 to 66; see, also, with regard to an administrative body which has independent rule-making powers in relation to the powers of the Member State concerned, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraphs 61 and 62), the delimitation ratione materiae of that reference framework, by contrast, is, in principle, in line with that measure.
100
Therefore, in the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 50), in respect of a measure consisting of an exemption from corporation tax to which producers’ and workers’ cooperatives were entitled, the Court of Justice took the view that that tax, as a whole, was the reference framework, in view of the fact that, for the purpose of calculating corporation tax, the basis of assessment of the beneficiaries of that measure was determined in the same way as that of other types of undertaking, namely on the basis of the amount of net profit earned as a result of the undertaking’s activities at the end of the tax year. Therefore, the reference framework was defined by taking into consideration, first, the purpose of the measure, which had an obvious link to that of the reference framework and, secondly, the situation of the beneficiaries of that measure, which was comparable to that of other persons to whom the reference framework applied.
101
In the judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraphs 63 to 67), while the measure at issue reserved an advantage for certain undertakings by enabling them to monetise the economic value of the emissions of nitrogen oxides they achieved, the Court of Justice recognised that the reference framework is defined essentially by the omission of that measure in legislative texts which, nevertheless, had a similar environmental objective. Accordingly, it stated that that reference framework was made up of ‘laws concerning environmental management and atmospheric pollution which do not contain the measure in question’.
102
In those two cases, the Court of Justice took the view that a scheme existed the purpose of which had a link to that of the measure at issue and which, although being less favourable than that measure, nevertheless applied to operators in comparable situations to those of the beneficiaries of that measure. In the case which gave rise to the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 50), those operators were the other companies that were subject to corporation tax whose basis of assessment was determined in the same way as that of producers’ and workers’ cooperative societies. In the case which gave rise to the judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraph 64), they were undertakings which emitted nitrogen oxides to which the measure at issue did not apply but which, nevertheless, like the undertakings to which that measure did apply, were subject to obligations regarding the limitation or reduction of emissions of nitrogen oxides.
103
Therefore, it follows from the case-law that, in addition to there being a link between the purpose of the measure at issue and that of the normal regime, the examination of whether situations falling under that measure and situations falling under that regime are comparable also enables the scope ratione materiae of that regime to be defined.
104
Moreover, the comparability of those situations also enables the finding that a derogation exists (see paragraph 61 above) where situations which fall under the measure at issue are treated differently from those which fall under the normal regime, even though they are comparable.
105
Thus, an overall reasoning with regard to the first two steps of the method mentioned in paragraphs 61 and 62 above may, in some cases, result in both the normal regime and the existence of a derogation being determined.
106
However, it should be pointed out that, in the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 54 to 61), the Court of Justice continued its analysis by examining the special characteristics of producers’ and workers’ cooperative societies and concluded, following that analysis, which was similar to the analysis undertaken during the second step of the method mentioned in paragraphs 61 and 62 above, that those companies cannot, in principle, be regarded as being in a comparable factual and legal situation to that of commercial companies.
107
Thirdly, again according to the case-law of the Court of Justice, the comparability of situations which, in the context of the first step of the method mentioned in paragraphs 61 and 62 above, enables the scope ratione materiae of the normal regime to be defined, is assessed in the light of the objective pursued by that regime.
108
Therefore, in the case which gave rise to the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 50), it was by examining the situation of operators in the light of the objective of the corporation tax that the Court of Justice concluded that the producers’ and workers’ cooperative societies were in a comparable situation to other companies. While the objective of that tax is the taxation of company profits (paragraph 54), the basis of assessment of cooperative societies and that of other companies, which is a necessary first step in order to determine tax, is determined in exactly the same way (paragraph 50).
109
In the case which gave rise to the judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraphs 63, 64 and 67), companies other than those which benefited from the measure at issue, which also emitted nitrogen oxide, were therefore subject, under the ‘laws concerning environmental management and atmospheric pollution’ (see paragraph 101 above), to the same obligations regarding the limitation or reduction of emissions of nitrogen oxides. Those other companies were therefore, in the light of the environmental protection objective pursued not only by the measure at issue, but above all by those laws, which constituted the normal regime, in a comparable situation to companies which benefited from the measure at issue.
110
In the light of the foregoing considerations, it must be determined whether, in the present case, in the light of the objective pursued by the normal regime identified by the Commission, the purpose of which must have a link to that of the measure at issue, undertakings acquiring shareholdings in resident companies and those acquiring shareholdings in non-resident companies are, as the applicants claim, in factual and legal situations which are not comparable and which are so different that the normal regime should have been confined to the measure at issue.
111
In that regard, it should be pointed out that the measure at issue allows the amortisation for tax purposes of the goodwill resulting from the acquisition of shareholdings in non-resident companies.
112
Under the Spanish tax system, the tax base is determined on the basis of the accounting result, to which adjustments are then made by applying tax rules (recitals 49 and 121 of the contested decision).
113
However, one of those tax rules, the purpose of which has a link to that of the measure at issue, provides for the amortisation of goodwill.
114
Under that rule, goodwill may be amortised following a ‘business combination’, in the broad sense of that expression, that arises either as a result of acquisition or contribution of the assets constituting independent businesses or following a merger or de-merger operation (recitals 28 and 123 of the contested decision).
115
It should be noted that it cannot be inferred from the provisions contained in Article 89(3) of the Spanish Corporate Tax Law that undertakings may, outside the situation in which the measure at issue applies, benefit from the amortisation of goodwill in respect of the mere acquisition of shareholdings. As the Kingdom of Spain itself indicates in its observations, under those provisions, where an undertaking acquires shareholdings in a company, it is allowed to amortise the goodwill relating to that acquisition of shareholdings only if it subsequently merges with the acquired company. The merger, which is a form of business combination — and also the only one taken into account by the Commission in a narrow interpretation of that expression (recital 32 of the contested decision) which it uses where it is limited to the case of shareholding acquisitions (recitals 29 and 36 of the contested decision) — is therefore a prerequisite for the amortisation of goodwill.
116
It follows from the foregoing that only a business combination allows the amortisation of goodwill for tax purposes. It should also be noted that the resulting tax treatment of the goodwill applies without distinction to cross-border transactions and domestic transactions in the Kingdom of Spain.
117
In line with an accounting logic, the tax treatment of goodwill is organised on the basis of the criterion related to whether or not a business combination has arisen.
118
A business combination results from an acquisition or contribution of the assets constituting independent businesses or even from a merger or a de-merger (see paragraph 114 above). Following those transactions, goodwill, which arises as the difference between the acquisition cost and the market value of the assets thus acquired, appears, as a separate intangible asset, in the books of the combined business (recitals 28 and 123 of the contested decision).
119
Therefore, in the light of the accounting techniques and principles with which the tax treatment of goodwill seeks to comply, the finding that a business combination exists, which results in that goodwill being recorded and subsequently allows it to be amortised, is relevant.
120
It is true that, under Spanish accounting principles, the price paid for the acquisition of a company in excess of the market value of the assets constituting that company may, even where a business combination has not arisen, be booked as a separate intangible asset in the accounts of the acquiring company where that company takes control of the acquired company. It is therefore a matter of providing, in the context of the consolidation of accounts, the global situation of a group of companies subject to unitary control (recitals 27 and 121 of the contested decision).
121
However, the fact that an undertaking has acquired shareholdings in a resident company or in a non-resident company is of no relevance to how the goodwill is recorded in the undertaking’s accounts and therefore to the objective of the tax treatment of the goodwill.
122
In that regard, it is irrelevant whether there may be obstacles to the cross-border combination. The objective of the tax treatment of the goodwill is to ensure a degree of consistency between the tax treatment of goodwill and its accounting treatment, which justifies the amortisation of the goodwill where it results from a business combination (see paragraphs 117 and 119 above). The tax treatment of goodwill is therefore not intended to compensate for the existence of obstacles to cross-border combinations or to ensure that different types of shareholding acquisitions are treated equally.
123
Therefore, undertakings which acquire shareholdings in non-resident companies are, in the light of the objective pursued by the tax treatment of goodwill, in a comparable factual and legal situation to that of undertakings which acquire shareholdings in resident companies.
124
Thus, in the context of the first step of the method mentioned in paragraphs 61 and 62 above, the Commission was right not to limit the examination of the selectivity criterion to acquisitions of shareholdings in non-resident companies only and therefore used, under the normal regime, the tax treatment of goodwill and not the tax treatment of financial goodwill introduced by the measure at issue (see paragraph 68 above).
125
It must be added that, by allowing the amortisation of goodwill in respect of the acquisition of shareholdings in non-resident companies without there being a business combination, the measure at issue applies to those transactions different treatment to that afforded to the acquisition of shareholdings in resident companies, even though both types of transaction are, in the light of the objective pursued by the normal regime, in comparable legal and factual situations. It may therefore, at this stage of the analysis, be observed that the Commission rightly found, in the context of the second step of the method mentioned in paragraphs 61 and 62 above, that the measure at issue derogated from the normal regime (judgment in World Duty Free, paragraph 57).
126
It follows from all of the foregoing that the applicants’ complaint must be rejected not only in so far as it concerns the first step of the method mentioned in paragraphs 61 and 62 above, but also in so far as it concerns the second step of that method, which confirms the existence of links between those two steps, or even in some cases, such as the present, a common line of reasoning (see paragraph 105 above).
127
However, despite the existence of a tax regime, in relation to the measure at issue and in the light of the objective of that regime that transactions which do not benefit from that measure are in a comparable situation to transactions which do benefit from it, it is still necessary to examine whether the measure at issue might, in the light of its specific characteristics and thus irrespective of any comparative analysis, in itself, constitute an autonomous reference framework, as the applicants submit.
128
In that regard, it should be noted that a measure is capable of constituting its own reference framework where it introduces a clearly defined tax regime which pursues specific objectives and is therefore different from any other tax regime that is applied in the Member State concerned. In such circumstances, in order to assess the condition of selectivity, it must therefore be determined whether certain operators are excluded from the scope of the measure whereas, in the light of the objective it pursues, those operators are in a comparable factual and legal situation to that of the operators to which it applies (see, to that effect, judgment of 7 March 2012, British Aggregates v Commission, T‑210/02 RENV, EU:T:2012:110, paragraphs 51, 63, 67 and 71 to 75).
129
With regard to a measure which does not introduce a clearly defined tax system, but belongs to a much broader package of laws, in his Opinion in Italy v Commission (173/73, EU:C:1974:52, p. 728), Advocate General Warner provided clarifications which, although they concern a national social security system, may be usefully applied to tax matters in order to identify whether such a measure may be regarded, in itself, as constituting an autonomous reference framework.
130
According to Advocate General Warner, a general reform of the social security system in a Member State, with the incidental effect of reducing the rate of employers’ contributions, might as such be outside the scope of provisions relating to State aid. However, in his view, the measure at issue in that case was not such a reform and nor was it part of a reform of that kind. Rather its sole objective was to solve a specific problem. It therefore, as the Court confirmed in the judgment of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71), fell under the provisions relating to State aid.
131
The approach presented by Advocate General Warner in his Opinion in Italy v Commission (173/73, EU:C:1974:52, p. 728) leads to reliance on the systematic and general nature of a measure in order to exclude it from the scope of provisions relating to State aid.
132
In the absence of further clarifications in the case-law as to the method which enables the identification, within a broader set of measures, of an autonomous regime which is capable of constituting a reference framework, it is appropriate to refer, by way of illustration, to the notices adopted by the Commission in this field.
133
An approach similar to that adopted by Advocate General Warner is set out in paragraph 133 of the 2016 notice, which states that the reference system is composed of a consistent set of rules that generally apply on the basis of objective criteria to all undertakings falling within its scope as defined by its objective.
134
It may also be noted that, for the purpose of distinguishing State aid from general measures, paragraph 13 of the 1998 notice provides for two categories of general measures, namely, first, ‘tax measures of a purely technical nature (for example, setting the rate of taxation, depreciation rules and rules on loss carry-overs; provisions to prevent double taxation or tax avoidance)’ and, secondly, ‘measures pursuing general economic policy objectives through a reduction of the tax burden related to certain production costs’.
135
In the present case, the measure at issue is merely a particular way of applying a wider-ranging tax — corporate tax — and therefore does not introduce a clearly defined tax system (see paragraph 128 above). It is therefore appropriate to apply the considerations set out in paragraphs 129 to 134 above.
136
In that regard, it should be noted that, as the Commission rightly stated in recital 124 of the contested decision, the measure at issue does not introduce a new general rule in its own right relating to the amortisation of goodwill, but an exception to the general rule that only business combinations may lead to the amortisation of goodwill, since that exception, according to the Kingdom of Spain, was said to remedy the adverse effects in respect of the acquisition of shareholdings in non-resident companies created by applying the general rule.
137
Thus, first, the measure at issue reserves entitlement to the amortisation of goodwill solely to the acquisition of shareholdings in non-resident companies. It therefore does not make the transaction consisting in the acquisition of shareholdings a new general criterion which would set out the tax treatment of the goodwill, which could suggest that the measure at issue is a measure ‘of a purely technical nature’ within the meaning of paragraph 13 of the 1998 notice.
138
Secondly, in its observations which are set out in the contested decision, the Kingdom of Spain stated that the measure at issue had been adopted as a result of the fact that obstacles, in particular legal ones, existed, which prevented Spanish investors from carrying out cross-border business combinations and therefore benefiting from the amortisation of goodwill provided for under Spanish tax law in the event of a combination of that kind, whereas they were able to carry out combinations in a domestic context without difficulty (recitals 60 and 94 of the contested decision). Therefore, according to its author, the purpose of the measure at issue is solely to remedy a situation, considered to be unsatisfactory, which had been created by the regime for the tax treatment of goodwill. It is not, therefore, a reform of corporate tax which is independent from that regime.
139
Moreover, in so far as its objective is to solve a specific problem: the supposed effects of obstacles to cross-border business combinations regarding the tax treatment of goodwill, the measure at issue cannot be regarded as a measure pursuing general economic policy objectives within the meaning of paragraph 13 of the 1998 notice.
140
Consequently, in the words of Advocate General Warner in his Opinion in Italy v Commission (173/73, EU:C:1974:52, p. 728), the measure at issue, whose sole objective is to solve a specific problem, is not a general reform.
141
It is clear from the foregoing that the reference system cannot be confined to the measure at issue. This confirms that the tax treatment of goodwill is, as the Commission rightly held in the contested decision, the relevant reference framework in the present case (see paragraph 124 above).
142
In the light of the foregoing considerations and, in particular, those in paragraphs 122 and 139 above, the applicants’ complaint alleging the existence of obstacles to cross-border combinations must be rejected in so far as it seeks to call into question the reference framework used by the Commission.
(2) The second step
143
The applicants submit that the Commission, which, in their view, was required to demonstrate that the acquisition of shareholdings in resident companies and those in non-resident companies were comparable in the light of the objective of fiscal neutrality pursued by the measure at issue, failed to comply with that obligation.
144
With regard to the second step of the method mentioned in paragraphs 61 and 62 above, although, in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 41), the Court of Justice referred to the objective pursued by the ‘measure in question’, it has subsequently referred to the objective pursued by the ‘statutory scheme’ of which that measure forms part (judgments of 29 April 2004, GIL Insurance and Others, C‑308/01, EU:C:2004:252, paragraph 68; of 3 March 2005, Heiser, C‑172/03, EU:C:2005:130, paragraph 40; of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 54; and of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 54). In the Grand Chamber judgment in World Duty Free, the Court of Justice referred even more explicitly to the objective pursued by the ordinary or normal tax system applicable in the Member State concerned (paragraph 57).
145
It should be noted that, as a result of that case-law, the comparison exercise which applies for the purposes of implementing the second step of the method mentioned in paragraphs 61 and 62 above now resembles, to a large extent, the method that the Court of Justice also uses for the purposes of defining the material scope of the reference framework (see paragraphs 103 to 109 and 126 above).
146
In accordance with the case-law referred to in paragraph 144 above, in particular the judgment in World Duty Free on which the parties were able to submit their observations, in accordance with the adversarial principle, account must be taken of the objective of the common regime as a whole.
147
However, it should be noted that the objective pursued by the normal regime is not to enable undertakings to benefit from the tax advantage of the amortisation of goodwill when they encounter difficulties which prevent them from combining businesses (see paragraphs 117 to 122 above).
148
Rather, this is the intention of the measure at issue by eliminating obstacles to cross-border combinations and thus, according to the Kingdom of Spain, ensuring that the principle of fiscal neutrality is observed (see paragraph 138 above).
149
The applicants’ argument concerning the existence of obstacles to cross-border combinations, which, contrary to their submissions, is based on the objective of the measure at issue and not that of the normal regime, must therefore be rejected as irrelevant when examining the second step of the method mentioned in paragraphs 61 and 62 above. It will be reconsidered, however, in the context of the third complaint, concerning the third step of that method.
150
Moreover, it should be recalled that the normal regime provides for the amortisation of goodwill only in the case of a business combination and that, by allowing that amortisation in respect of the acquisition of shareholdings in non-resident companies, the measure at issue applies to those transactions different treatment to that afforded to the acquisition of shareholdings in resident companies, even though both types of transaction are, in the light of the objective pursued by the normal regime, in comparable legal and factual situations. Therefore, the measure at issue introduces a derogation from that regime, as the Commission rightly found (see paragraph 125 above).
151
The applicants’ complaint must therefore be rejected.
152
The conclusion set out in paragraph 151 above cannot be called into question by the case-law invoked by the applicants.
153
First, with regard to the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraphs 61 and 62), the schedule relating to airport charges, at issue in that case, had been adopted by an airport in the exercise of its independent rule-making powers and therefore could not be considered to constitute a derogation from a regime applicable to all airports. The context of the case which gave rise to that judgment is therefore not related to that of the present case.
154
Secondly, in the case which gave rise to the judgment of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9), the advantage granted consisted in a right of privileged access to bus lanes to which taxis but not minicabs were entitled (paragraph 63). In the light of the objective of the measure in question, namely of ensuring a safe and efficient transport system (paragraph 50), the fact that only taxis were able to solicit or wait for passengers without any pre-booking (paragraph 5) and that certain obligations, in particular the fact that they must be recognisable and capable of conveying persons in wheelchairs (paragraph 60), are imposed only on taxis, enabled the Court of Justice to conclude that taxis were not in a comparable situation to minicabs (paragraph 61).
155
Furthermore, with regard to the judgment of 29 March 2012, 3M Italia (C‑417/10, EU:C:2012:184), the measure in question in that case applied to certain taxpayers who, in the light of the objective pursued by that measure, which had been introduced in order to ensure that the handling of the older judicial proceedings in tax matters complies with the principle that the judgment must be given within a reasonable time, were not in the same situation as other taxpayers who were parties to more recent proceedings with the tax authorities (paragraphs 40 to 42).
156
Thus, in those two judgments, the Court of Justice did take account of the objective of the measure intended to confer the advantage in question and not, more broadly, that of the regime of which that measure formed part, while, in the judgment of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 55), the Court pointed out that it followed from settled case-law that Article 107(1) TFEU required an assessment of whether, under a particular legal regime, a national measure was such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, were in a comparable factual and legal situation.
157
However, in its more recent case-law, the Court of Justice has stated that account had to be taken of the objective of the regime of which the measure conferring an advantage forms part and not the objective of that measure (see paragraph 144 above).
158
Thirdly, in the judgment of 9 December 1997, Tiercé Ladbroke v Commission (C‑353/95 P, EU:C:1997:596), the Court of Justice held that the national legislature had treated bets organised in France on French races differently from those organised in France on foreign races by providing that the latter were subject to the statutory and fiscal retentions in force in the country where the races were organised (paragraphs 2, 3 and 36).
159
The Court, admittedly, held that the two categories of bet were not identical (judgment of 9 December 1997, Tiercé Ladbroke v Commission, C‑353/95 P, EU:C:1997:596, paragraph 33), which may refer to a reasoning falling under the second step of the method mentioned in paragraphs 61 and 62 above.
160
However, to justify that finding, the Court pointed out, inter alia, that in totalizator betting the stakes constituted a common pool which, after various levies, was distributed amongst the winners equally, whatever the origin of the bets, and therefore the share of the stakes paid out to the winners could not vary according to the State in which the bets were placed. It then concluded that the proper functioning of such a system could therefore be ensured only if the rate of any levies which may have been imposed on the bets laid on a horse race was that of the State in which the race was run (paragraph 34).
161
In that case, the Court therefore adopted an approach which, in fact, comes under the third step of the method mentioned in paragraphs 61 and 62 above, which is based on examining whether the difference in treatment found is justified.
162
Therefore the judgment of 9 December 1997, Tiercé Ladbroke v Commission (C‑353/95 P, EU:C:1997:596) cannot effectively be invoked for the purposes of challenging the Commission’s conduct in the present case in respect of the first two steps of the method mentioned in paragraphs 61 and 62 above.
163
Moreover, the circumstances of the case which gave rise to that judgment are different from those of the case at issue in the present proceedings. Therefore, without further explanation by the applicants, it cannot be inferred from the recognition by the Court of Justice of a difference in the situations of bets organised in France on Belgian races and those organised in France on French races (see paragraph 159 above), that there is a difference in the situations of the acquisition of shareholdings in resident companies and the acquisition of shareholdings in non-resident companies.
164
In any event, the conclusion reached by the General Court in paragraph 151 above is based on the most recent case-law of the Court of Justice, set out in paragraph 144 above.
165
In the light of all the foregoing, this complaint must be rejected.
(c)
The measure at issue is justified in the light of the nature and general scheme of the system of which it forms part (third step)
166
In the alternative, the applicants submit that the derogation introduced by the measure at issue is justified in the light of the nature and general scheme of the system of which it forms part. Accordingly, they refer to the third step of the method of analysis mentioned in paragraphs 61 and 62 above.
167
As was pointed out in paragraph 62 above, the Court of Justice held that, in the context of the third step of the method of analysis mentioned in paragraphs 61 and 62 above, the concept of ‘State aid’ did not cover measures that differentiate between undertakings which, in the light of the objective pursued by the normal regime, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general scheme of the system of which the measures form part.
168
In that connection, it must be recalled that a distinction must be made between, on the one hand, the objectives attributed to a tax measure or a particular tax scheme which are extrinsic to it and, on the other hand, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives. Consequently, 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 (judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 69 and 70).
169
Moreover, in paragraph 138 of the 2016 notice, the Commission refers to the intrinsic basic or guiding principles of the tax system in question or inherent mechanisms necessary for the functioning and effectiveness of the system which, alone, may justify a derogation.
170
In the present case, the difference in treatment between the acquisition of shareholdings in resident companies and the acquisition of shareholdings in non-resident companies introduced by the measure at issue enables, in the Kingdom of Spain’s view, the difference in treatment to the benefit of the former and the detriment of the latter, introduced by the Spanish tax system with regard to goodwill, to be offset.
171
The differentiation introduced by the measure at issue is therefore justified since it stems from the principle of fiscal neutrality.
172
However, the principle of neutrality, which is recognised in Spanish tax law (recital 138 of the contested decision), falls under mechanisms inherent in the tax system as is clear, moreover, from paragraph 139 of the 2016 notice, in accordance with which the principle of fiscal neutrality may constitute a possible justification for a derogation from the normal regime.
173
The Kingdom of Spain may therefore effectively rely on the principle of fiscal neutrality in order to justify the differentiation introduced by the measure at issue.
174
It should be noted that it is only in a specific case, such as that involved in the present case, that the objective pursued by the measure in question can effectively be relied on during the third step of the method of analysis mentioned in paragraphs 61 and 62 above.
175
As it has been acknowledged that the justification given by the Kingdom of Spain for the differentiation introduced by the measure at issue, namely the principle of fiscal neutrality, is relevant, it remains to be determined whether the measure at issue is actually capable of ensuring fiscal neutrality.
176
It is settled case-law that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (see judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87 and the case-law cited).
177
First of all, it should be recalled that, where a derogation is identified by the Commission, it is for the Member State concerned to demonstrate that that derogation is justified since it flows from the nature or general scheme of the system of which it forms part (see paragraph 62 above).
178
It must therefore be determined whether, in the present case, contrary to the view taken by the Commission, the evidence provided by the Kingdom of Spain and invoked by the applicants is sufficient to justify the derogation noted in paragraph 150 above.
179
The applicants take as a basis the fact that, according to the Kingdom of Spain, the aim of the measure at issue is to restore a situation of fiscal neutrality by bringing to an end an unjustified difference in treatment between, on the one hand, undertakings which, without difficulty, may merge with a resident company, which allows them to benefit from the amortisation of goodwill and, on the other, undertakings which encounter legal difficulties, in particular in States that are not members of the European Union, which prevent them from merging with a non-resident company and, therefore, from benefiting from the amortisation of goodwill.
180
It should be noted that, for the purposes of offsetting the unjustified difference in treatment which therefore follows from the normal regime, the measure at issue grants entitlement to the amortisation of goodwill to undertakings which acquire shareholdings in non-resident companies.
181
Thus, the measure at issue is necessarily based on the premiss that undertakings that wish to carry out cross-border mergers and cannot do so on account of — in particular, legal — obstacles to business combinations, acquire shareholdings by default in non-resident companies or, at least, maintain the shareholdings that they already have.
182
In the absence of any such premiss, the measure at issue could not be regarded as benefiting undertakings which, according to the Kingdom of Spain, are subject to unjustified adverse treatment deriving from the application of the normal regime. Therefore, it cannot have a neutralising effect.
183
However, the premiss referred to in paragraph 181 above has not been established.
184
Admittedly, the applicants claim that, where cross-border mergers are impossible on account of obstacles created by the laws and administrative practices of the States in question, those transactions must, in the large majority of cases, be organised through the acquisition of shareholdings in foreign companies.
185
However, the acquisition of a shareholding, unlike a merger, does not result in the acquired company being wound up. Having regard to that difference and its legal and economic implications, it is not clear that both types of transaction have the same objectives or that they correspond to identical economic strategies. This is particularly true with regard to acquisitions of minority shareholdings which, where they reach a threshold of 5%, nevertheless fall within the scope of the measure at issue. Consequently, it cannot be presumed that an undertaking which is unable to merge with a company will, by default, acquire shareholdings in that company.
186
It is even plausible that undertakings that wish to merge with a non-resident company and are unable to do so on account of — in particular, legal — obstacles to business combinations, will forego acquiring or maintaining shareholdings in the company in question. Thus, those undertakings which, nevertheless, are the ones which are likely to be treated unfavourably, do not benefit from the advantage conferred by the measure at issue.
187
The documents in the case file do not show that the Kingdom of Spain, which is responsible for demonstrating that the derogation is justified (see paragraph 177 above), has established that undertakings that wish to carry out cross-border mergers and cannot do so on account of — in particular, legal — obstacles to business combinations, acquire shareholdings by default in non-resident companies or, at least, maintain the shareholdings that they already have.
188
Moreover, the applicants have not demonstrated that either.
189
It follows from the foregoing that the advantage deriving from the measure at issue has not been shown to benefit undertakings faced with the difference in treatment that that measure is said to remedy. Therefore, the neutralising effects of the measure at issue have not been established.
190
In that regard it may be observed that, in recital 106 of the contested decision, the Commission stated that the measure at issue was too imprecise and indiscriminate since it did not set any conditions, such as the existence of specific, legally circumscribed situations which would justify different tax treatment.
191
In the second place, even assuming that the measure at issue has the effect of offsetting the alleged adverse effects of the normal regime, which has not been established, it is, as the Commission has rightly pointed out (recitals 136, 138 and 139 of the contested decision) disproportionate and, therefore, unjustified.
192
All undertakings acquiring shareholdings of at least 5% in resident companies do not necessarily intend to merge with those companies and, therefore, to be granted entitlement to the amortisation of goodwill.
193
First of all, a merger is not always possible. That is the case, for example, where the undertaking in question does not have a shareholding which gives it control of the company with which it wishes to merge and the other shareholders of that company oppose the combination.
194
Moreover, even if such a merger is possible, the amortisation of goodwill will benefit only undertakings that wish to perform such a transaction. It is not a certainty that all undertakings which have acquired shareholdings — including majority shareholdings — in a resident company wish to merge with that company, particularly given the fact that it is not clear that the acquisition of a shareholding and a merger have the same objectives or that they correspond to identical economic strategies (see paragraph 185 above).
195
Nevertheless, all undertakings which acquire shareholdings in non-resident companies, although their objective is not necessarily to merge, will be entitled to the amortisation of goodwill.
196
In that regard, the Commission correctly pointed out, in recital 106 of the contested decision, that the measure at issue covered ‘a broad category of transactions in a discriminatory manner, which cannot be justified by objective differences between taxpayers’.
197
It should again be noted that the fact that undertakings which acquire shareholdings in resident companies are able to benefit from the amortisation of goodwill more easily, if they so wish, by merging, does not put those undertakings in as favourable a position as those undertakings which acquire shareholdings in non-resident companies and on that basis are entitled, automatically, to the amortisation of goodwill.
198
It follows from the foregoing that the application of the measure at issue leads to undertakings which are nevertheless in comparable situations being treated differently.
199
Thus, even if the measure at issue enables some form of fiscal neutrality, which had been undermined by the normal regime, to be restored, which has not been established (see paragraph 189 above), its effects, in any event, mean that it cannot be regarded as justified in the light of the principle of fiscal neutrality, as the Commission rightly found in the contested decision (see paragraph 191 above).
200
In conclusion, as is clear from both of the independent grounds set out in the considerations in paragraphs 177 to 199 above, the documents in the case file do not show that the derogation introduced by the measure at issue is justified in the light of the principle of fiscal neutrality.
201
Although the reference system which must be used in order to examine whether the measure at issue is selective is the tax treatment of goodwill (see paragraph 141 above) and the measure at issue introduces a derogation from that system (see paragraph 150 above), the possible existence of obstacles to cross-border mergers is not, in the light of the foregoing considerations, capable of justifying the derogation introduced by the measure at issue.
202
The applicants’ argument that the measure at issue is justified in the light of the objective of fiscal neutrality must, therefore, be rejected and it is unnecessary to examine their arguments concerning the existence of obstacles which make cross-border mergers difficult or impossible.
203
Accordingly, there is also no reason to grant the applications for measures of organisation of procedure submitted by the applicants in that regard, since those measures are deemed to be capable of establishing the existence of obstacles which make cross-border mergers difficult or impossible.
204
The conclusion set out in paragraph 202 above cannot be called into question by the other arguments put forward by the applicants.
205
In the first place, according to the applicants, it was for the Commission to draw a distinction between the acquisition of shareholdings in non-resident companies resulting in the acquisition of control and other acquisitions of shareholdings for the purposes of declaring that the application of the measure at issue to the former was not to be classified as State aid.
206
However, as was pointed out in paragraph 194 above, some undertakings acquire majority shareholdings in resident companies but do not wish to merge. As a result of the measure at issue, those undertakings are therefore treated less favourably than undertakings which acquire shareholdings in non-resident companies, even though they are in a comparable situation. That adverse treatment demonstrates that the measure at issue introduces inconsistency in respect of the tax treatment of goodwill and that that inconsistency would be introduced even if the measure at issue benefited only the acquisition of majority shareholdings in non-resident companies.
207
For the sake of completeness, even if the measure at issue could be regarded as justified in respect of the acquisition of majority shareholdings, it should be noted that, in any event, it was not for the Commission, in the contested decision, to determine conditions for the application of the measure at issue which might have made it possible, in certain situations, not to classify it as aid. Such a question is a matter for dialogue between the Spanish authorities and the Commission, as part of the notification of the scheme at issue, which ought to have taken place before the scheme was put into effect (judgment of 9 September 2009, Diputación Foral de Álava and Others v Commission, T‑227/01 to T‑229/01, T‑265/01, T‑266/01 and T‑270/01, EU:T:2009:315, paragraph 381).
208
In that regard, the Commission has rightly referred to the case-law cited in paragraph 207 above in recitals 107 and 118 of the contested decision.
209
It should be added that, according to the settled case-law of the Court of Justice, in the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies, in order to establish whether the scheme involves elements of aid (judgments of 29 April 2004, Greece v Commission, C‑278/00, EU:C:2004:239, paragraph 24; of 15 December 2005, Italy v Commission, C‑66/02, EU:C:2005:768, paragraph 91; and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 122).
210
In that regard, the applicants invoke the judgment of 22 November 2001, Mitteldeutsche Erdöl-Raffinerie v Commission (T‑9/98, EU:T:2001:271, paragraph 117). Although the General Court held in that case that the Commission could not confine itself to carrying out a general, abstract analysis of the measure at issue in that case, but was also obliged to examine the specific case of the applicant in that case, that solution was adopted in very specific circumstances which are different from those of the present dispute since, first, the adoption of the measure at issue had been prompted, inter alia, by the particular features of the applicant’s situation, secondly, during the administrative procedure, the applicant’s particular situation had been the subject not only of written observations of the German Government and the parent company of the applicant in that case but also of detailed discussions between the German Government and the Commission and, thirdly, the German Government had proposed to the Commission that it would apply the measure at issue to the applicant only and would individually notify any other cases in which that measure was applied (paragraphs 80 to 82).
211
With regard to the reference to the judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368), it should be pointed out that that judgment precedes the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), which confirmed the case-law in accordance with which, in the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies, in order to establish whether the scheme involves elements of aid (see paragraph 209 above).
212
Moreover, in the cases giving rise to the judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368), and of 28 November 2008, Hotel Cipriani and Others v Commission (T‑254/00, T‑270/00 and T‑277/00, EU:T:2008:537), also cited by the applicants, an infringement of the principle of non-discrimination was alleged in so far as the Commission, with regard to an aid scheme, examined the individual situation of certain undertakings — municipal undertakings — without following the same process in respect of private undertakings in similar situations. However, the applicants do not cite an infringement of the principle of non-discrimination to the effect that the situation of certain undertakings should have been examined separately. Therefore, the solution adopted by the General Court (and confirmed by the Court of Justice in paragraphs 128 and 160 of its judgment), in accordance with which, in the absence of specific information with regard to the applicant undertakings and the sectors in which they operated, the Commission was not required, by virtue of the principle of non-discrimination, to derogate from its approach based on an examination of the aid scheme in question according to its general characteristics and carry out an analysis of their individual situation, is irrelevant in the present case.
213
In particular, the case-law mentioned in paragraphs 210 to 212 above is irrelevant since, in the present case, it is not a question of determining, according to the sector, the undertakings in respect of which the classification as State aid cannot be accepted, but of determining, according to the economic transactions to which the advantage in question applies, the undertakings in respect of which that classification cannot be accepted. If an obligation to examine the various economic transactions to which the advantage in question could validly apply without the existence of aid being established was imposed on the Commission, this would result in it amending the content or the conditions for the application of the measure examined and not just defining its geographic or sectoral scope. That obligation would result in the Commission exceeding powers devolved upon it by the provisions of the FEU Treaty and those of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).
214
Moreover, with regard to the justification for the distinction drawn by the measure at issue, it should be recalled that it is for the Member State concerned to establish that it is justified (see paragraphs 62 and 177 above). Therefore, it is also for the Member State concerned to adapt the content or the conditions for the application of that measure if it is apparent that it is justified only in part.
215
Finally, on account of its knowledge of the nature and general scheme of the system of which the measure at issue forms part, the Member State is also best placed to define the content or the conditions for the application of the measure, in particular where, as in the present case, the assessment of the effects of that measure, which are said to justify the derogation it introduces, is complex (see paragraphs 179 to 199 above).
216
Thus, even if the Commission’s examination, during the formal investigation procedure, of cases regarding the acquisition of majority shareholdings were discussed specifically by the Commission and the Kingdom of Spain on the basis of the documented requests it submitted, it is clear from the considerations set out in paragraphs 205 to 215 above that, in any event, the present complaint must be rejected, including in respect of acquisitions of majority shareholdings, and it is unnecessary to examine the arguments relating to the existence of obstacles which make cross-border mergers difficult or impossible.
217
Accordingly, there is also no reason to grant the applications for measures of organisation of procedure submitted by the applicants in that regard, since those measures are deemed to be capable of establishing the existence of obstacles which make cross-border mergers difficult or impossible.
218
Furthermore, the applicants submit that the Commission also relied on the ground that the measure at issue is disproportionate since it also applies to acquisitions of minority shareholdings which do not involve acquisition of control. By that criticism, they could be regarded as concluding, in the alternative, that the contested decision should be annulled in so far as it declares that the application of the measure at issue to acquisitions of majority shareholdings is unlawful.
219
That application must be rejected.
220
First, the Commission was entitled to take the view that the Kingdom of Spain had not established that the measure at issue was justified without even basing its decision on the disproportionate nature of that measure (see paragraphs 177 to 189 above).
221
Moreover, even though it conferred entitlement only in respect of acquisitions of majority shareholdings in non-resident companies, the measure at issue introduced inconsistency in respect of the tax treatment of goodwill which calls into question whether it is justified by the principle of fiscal neutrality (see paragraph 206 above).
222
Secondly, in the light of the considerations set out in paragraphs 207 to 215 above, even though, according to the applicants, the Kingdom of Spain had asked it to do so, the Commission was not required to declare that aid did not exist in the case of acquisitions of majority shareholdings.
223
Finally, thirdly, it should be noted that, in accordance with settled case-law, partial annulment of a Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see judgment of 24 May 2005, France v Parliament and Council, C‑244/03, EU:C:2005:299, paragraph 12 and the case-law cited). That requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (judgment of 24 May 2005, France v Parliament and Council, C‑244/03, EU:C:2005:299, paragraph 13). However, in the present case, the annulment of the contested decision, in so far as it establishes the existence of State aid including with respect to acquisitions of majority shareholdings, would have the effect of altering the substance of that decision.
224
Therefore, the argument set out in paragraph 218 above must be rejected, as must the claims in the alternative which are based on that argument.
225
In the second place, with regard to the reference to the Commission’s decision-making practice, that argument must be rejected.
226
In that regard, it must be observed that, according to case-law, the question whether a measure constitutes State aid must be assessed solely in the context of Article 107(1) TFEU and not in the light of an alleged earlier decision-making practice of the Commission (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 136).
227
It follows from the foregoing considerations that, in any event (see paragraph 202 above), the present complaint, alleging that the measure at issue is justified in the light of the nature and general scheme of the system of which it forms part, must be rejected.
228
Moreover, the argument alleging that the contested decision fails to state the reasons for the finding that the measure at issue is selective cannot be accepted. As is clear from the considerations set out in paragraphs 64 to 73 above, the Commission’s decision in that regard contained an adequate statement of reasons.
229
Finally, as regards the argument relating to the principle of the protection of legitimate expectations (see paragraph 34 above), it should be recalled that the concept of State aid corresponds to an objective situation and cannot depend on the conduct or statements of the institutions. Those facts cannot preclude classification as State aid, within the meaning of Article 107(1) TFEU, if the conditions governing the existence of State aid are met. They must, however, be taken into consideration in relation to the obligation to recover aid that is incompatible with the internal market, in the light of the principles of protection of legitimate expectations and legal certainty (judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 53).
230
The argument relating to the principle of the protection of legitimate expectations, which is irrelevant with respect to the classification of a measure as State aid, must therefore be rejected. Nevertheless, it will be examined as part of the analysis of the third plea.
231
In the light of the ground which forms the basis for such an approach, namely that the argument in question is irrelevant, there is no reason to grant the applications for measures of organisation of procedure submitted by the applicants in that regard, since those measures are deemed to be capable of establishing that that argument is well founded.
232
It follows from all of the foregoing considerations that the first plea, alleging that the measure at issue is not selective, must be rejected in its entirety.
B. The second plea in law, alleging an error in determining the beneficiary of the measure at issue
1.
Arguments of the parties
233
The applicants dispute, in essence, the fact that the advantage conferred by the measure at issue benefits undertakings taxable in Spain which acquire shareholdings in non-resident companies. The beneficiaries of the measure at issue are, in reality, those companies and their shareholders, who may be able to sell their shares for a better price.
234
The applicants submit that, in the contested decision, the Commission provided an incoherent and incorrect response to the argument put forward by some of the interested parties, alleging that the real beneficiaries of the aid are the shareholders of non-resident companies who sell their shares to undertakings taxable in Spain.
235
The applicants also rely on the Commission’s previous practice.
236
The Commission submits that the inconsistency invoked by the applicants does not exist.
237
In any event, according the Commission, the undertakings to which the measure at issue applies benefit from an advantage.
2.
Findings of the Court
238
It should first of all be observed that, as a result of the measure at issue, undertakings taxable in Spain which acquire shareholdings in non-resident companies are able to reduce the basis of assessment for the corporation tax for which they are liable if they also satisfy the other conditions provided for by the measure.
239
According to the applicants, the advantage conferred by the measure at issue, the immediate recipients of which are the undertakings acquiring the shareholdings in non-resident companies, is, in reality, reflected in sales price of the shares. Consequently, those undertakings do not benefit from the measure at issue, rather those selling the shares in question do.
240
That argument must be rejected on the basis of each of the following independent grounds.
241
In the first place, it cannot be presumed that the advantage conferred by the measure at issue is necessarily reflected in the sales price of the shares in the acquired companies. That circumstance is not established in the present case. Accordingly, the present argument has no factual basis.
242
In the second place, even if the undertakings taxable in Spain wishing to purchase shares in non-resident companies increase the price offered by taking into account the reduction in the basis of assessment for corporation tax from which they benefit in respect of that acquisition, this increases their chances of performing the transactions in question. Those undertakings therefore have an ‘economic advantage which [they] would not have obtained under normal market conditions’, in the words of the Court of Justice in its judgment of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 60).
243
The situation being considered in the present case is therefore different from that in which the recipient of the advantage is obliged, without consideration, to pass that advantage on to a third party (see, to that effect, judgment of 3 July 2003, Belgium v Commission, C‑457/00, EU:C:2003:387, paragraph 58). Even if they pass on all of the tax advantage deriving from the measure at issue in the purchase price of the shares in the acquired companies, the acquiring companies see an improvement in their negotiating ability as a buyer which, in itself, is a clear benefit, as the Commission rightly points out.
244
In the third place, the Court of Justice has held that the fact the benefit enjoyed as a result of exploiting an advantage, in particular a tax advantage, is not the same as that advantage, and there may indeed be no benefit, has no effect on the recovery of the aid from the persons who received that advantage (see, to that effect, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraphs 92, 93, 100 and 102).
245
Accordingly, that fact also has no impact on the persons receiving the advantage in question being the beneficiary of the aid.
246
If it were accepted, in view of such a circumstance, that the recipients of the advantage conferred by a measure are not the actual beneficiaries of that measure, this would have the effect of preventing any recovery measure in their regard, which would be contrary to the solution adopted by the Court of Justice.
247
In the present case, the applicants rely, in essence, on a reduction in, or even a loss of, the benefit enjoyed as a result of exploiting the advantage conferred on them by the measure at issue.
248
In accordance with the case-law cited in paragraph 244 above, as interpreted in paragraph 245 above, the fact, were it to be established, that the tax advantage deriving from the measure at issue is, in the present case, passed on in full by the acquiring companies in the price of the shares in the acquired companies and that the benefit arising from the measure at issue and enjoyed by the acquiring companies in the purchase transaction may therefore not exist, does not make it possible to conclude that those undertakings are not the beneficiaries of the measure at issue.
249
It is clear from each of the three grounds set out in paragraphs 241 to 248 above that undertakings taxable in Spain and which acquire shareholdings in non-resident companies are not only the immediate recipients of the aid in question, but they are also the real beneficiaries of that aid.
250
This is clearly indicated by the Commission in the contested decision, the statement of reasons for which, which contains sufficient details in that regard, is in no way inconsistent.
251
It may be observed, in that regard, that, in recital 130 of the contested decision, the Commission stated that it considered the beneficiaries of the aid to be the undertakings which were able to apply the tax amortisation of goodwill. It noted, inter alia, that there was no mechanism guaranteeing that the advantage was passed on in full or in part to the seller of the shares in question and that, even if that were the case, the measure at issue would give the acquirer greater capacity to offer a higher price, ‘which [would have been] of the utmost importance in the case of a competitive acquisition operation’.
252
Moreover, the applicants’ argument based on the alleged inconsistency in the Commission’s practice when identifying the beneficiary of the aid in question must be rejected.
253
According to case-law, the question whether a particular measure constitutes State aid must be assessed solely in the context of Article 107(1) TFEU and not in the light of an alleged earlier decision-making practice of the Commission (see judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 136 and the case-law cited). The determination of the beneficiary of the aid is one of the components of the finding as to the existence of that aid which corresponds to an objective situation and cannot depend on the conduct of the institutions (see, to that effect, judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 53).
254
It follows from all of the foregoing that the second plea must be rejected.
C. The third plea in law, alleging infringement of the principle of the protection of legitimate expectations
1.
Arguments of the parties
255
The first complaint raised by the applicants essentially alleges an error in law relating to the fact that the Commission, wrongly, took as the reference date for the purposes of determining which aid must be the subject of a recovery measure the date of the publication of the initiation decision. The Commission has therefore infringed the principle of the protection of legitimate expectations by failing to take as the reference date that of the publication of the contested decision.
256
The applicants rely, in particular, on the case-law of the EU Courts, as well as the decision-making practice of the Commission in respect of which they allege an infringement of the principle of equal treatment.
257
The applicants criticise the Commission’s argument that, after the initiation decision was published, a diligent operator should have refrained from applying the measure at issue until the final decision was published.
258
In the alternative, the applicants raise a second complaint. They dispute the conditions imposed by the Commission to ensure that, in certain situations, the date of publication of the contested decision is taken into consideration as the reference date for the purposes of determining which aid must be the subject of a recovery measure. According to the applicants, the solution adopted by the Commission under the transitional scheme applied by the contested decision would not have been foreseeable by a diligent operator.
259
The applicants also invoke a failure to state reasons in the contested decision.
260
The Commission submits that, in the light of the case-law, the principle of the protection of legitimate expectations has not been infringed.
261
It also submits that the argument based on its previous practice is irrelevant and, in any event, unfounded.
262
Finally, it submits that no infringement of the principle of the protection of legitimate expectations may be found with regard to cases in which the reference date for the recovery of the aid is the date of publication of the contested decision.
2.
Findings of the Court
263
It must be noted that it is settled case-law that the right to rely on the principle of the protection of legitimate expectations requires that three conditions be satisfied cumulatively. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgments of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 81 and the case-law cited, and of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 77 and the case-law cited).
264
It should also be recalled that the plea alleging infringement of the principle of the protection of legitimate expectations cannot effectively be raised for the purposes of challenging a Commission decision which classifies a national measure as State aid, within the meaning of Article 107(1) TFEU, since the concept of State aid corresponds to an objective situation and cannot depend on the conduct or statements of the institutions (see paragraph 229 above). Thus, where a national measure may, rightly, be classified as State aid, previous assurances regarding the fact that that measure does not constitute aid cannot be in accordance with Article 107(1) TFEU. As the third condition set out in paragraph 263 above is not satisfied, an infringement of the principle of the protection of legitimate expectations invoked against the Commission’s decision which classifies the measure as State aid is ruled out.
265
However, the plea alleging infringement of the principle of the protection of legitimate expectations may effectively be raised against a decision by which the Commission decides, pursuant to Article 108(2) TFEU, that the Member State concerned must abolish a national measure or alter it within a period of time to be determined by the Commission (see, to that effect, judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 53).
266
This may involve, for example, the Commission requiring that the Member State concerned terminates, gradually, an existing aid scheme which has become incompatible with the internal market (see the decision at issue in the judgment of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416) or even ordering the recovery of further aid paid without prior notification to the Commission and considered by the Commission to be incompatible with the internal market.
267
With regard to the last example, which is at issue in the present case, it should be noted that, if there was a rule or principle that the Commission is obliged to order the recovery of any aid that is unlawful and incompatible with the internal market, the assurances given where such aid is not recovered, which may be the result of assurances given with regard to the measure in question not being classified as aid, would necessarily be contrary to that principle or that rule.
268
Thus, the third of the cumulative conditions for the principle of the protection of legitimate expectations to apply (see paragraph 263 above), the condition that the assurances given must comply with the applicable rules (judgments of 16 November 1983, Thyssen v Commission, 188/82, EU:C:1983:329, paragraph 11; of 6 February 1986, Vlachou v Court of Auditors, 162/84, EU:C:1986:56, paragraph 6; of 27 March 1990, Chomel v Commission, T‑123/89, EU:T:1990:24, paragraph 28; of 6 July 1999, Forvass v Commission, T‑203/97, EU:T:1999:135, paragraph 70; of 18 June 2014, Spain v Commission, T‑260/11, EU:T:2014:555, paragraph 84; and of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, EU:T:2016:227, paragraph 213), may never be satisfied.
269
In that regard, it should be pointed out that, in the judgment of 21 March 1990, Belgium v Commission (C‑142/87, EU:C:1990:125, paragraph 66), the Court held that the recovery of unlawful aid that is incompatible with the internal market was the logical consequence of the finding that it is unlawful.
270
However, the logical connection thus established in the case-law of the Court of Justice between aid being unlawful and it being recovered does not impose an obligation on the Commission to order the recovery of any aid that is unlawful and incompatible with the internal market.
271
As the Commission recalled in the 2007 notice entitled ‘Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid’ (OJ 2007 C 272, p. 4), it was not until the second half of the 1980s and the 1990s that it started to order the recovery of unlawful and incompatible aid more systematically and that the adoption of Regulation No 659/1999 ‘establish[ed] the obligation on the Commission to order recovery of [such] aid’.
272
That obligation follows from the first sentence of Article 14(1) of Regulation No 659/1999, which provides that, where negative decisions are taken in cases of unlawful aid, the Commission ‘shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary’.
273
Despite the adoption of that provision, which appears to require the Commission to order the recovery of any aid that is unlawful and incompatible with the internal market, the plea alleging infringement of the principle of the protection of legitimate expectations may still be invoked effectively against a decision ordering the recovery of further aid paid without prior notification to the Commission and considered by the Commission to be incompatible with the internal market.
274
First, an exception to the obligation to order the recovery of aid that is unlawful and incompatible with the internal market is provided for as early as in the second sentence of Article 14(1) of Regulation No 659/1999, in accordance with which the Commission is not to require the recovery of the aid if this would be contrary to a general principle of EU law.
275
However, the principle of the protection of legitimate expectations is recognised as a general principle of EU law (judgment of 19 May 1992, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 15; see also, to that effect, judgment of 28 April 1988, Mulder, 120/86, EU:C:1988:213, paragraphs 26 and 27).
276
Secondly, Article 14(1) of Regulation No 659/1999, in particular its first sentence, cannot be interpreted as having the effect of preventing the third of those cumulative conditions for the principle of the protection of legitimate expectations to apply from being satisfied and thus of resulting in the application of that principle being ruled out (see paragraphs 263, 267 and 268 above).
277
The second sentence of Article 14(1) of Regulation No 659/1999 is specifically intended to ensure the protection of legitimate expectations, as is clear from Statement 29/99 from the minutes of the Council meeting during which that regulation was formally adopted (Monthly summary of Council acts, March 1999). In accordance with that statement, the ‘Commission is always bound by the general principles of [EU] law, in particular the principle of legitimate expectations, which prevail over secondary … law’.
278
It follows from the foregoing that, for the purposes of challenging the lawfulness of the contested decision in so far as it provides for the recovery of the aid granted, the applicants may effectively raise before the General Court the plea alleging infringement of the principle of the protection of legitimate expectations and, in that regard, rely on the assurances that the Commission may have given them with regard to the measure at issue not being classified as aid, which necessarily implied that the advantage conferred on them by that measure would not be recovered (see paragraph 267 above) or would be recovered only in compliance with those assurances.
279
Therefore, it must be determined whether either of the two complaints raised by the applicants in support of the third plea (see paragraphs 255 and 258 above) is well founded.
(a)
The first complaint, raised as the principal argument
280
The applicants dispute the transitional scheme applied by the Commission in so far as it used, as the reference date, the date of publication of the initiation decision. They take the view that the Commission should have taken into account the date of publication of the contested decision.
281
As a preliminary point, it should be noted that, in recital 184 of the contested decision, the Commission took the view that the measure at issue constituted unlawful State aid, that is to say new aid put into effect in contravention of Article 108(3) TFEU.
282
It is established that the scheme at issue was not notified by the Kingdom of Spain to the Commission under Article 108(3) TFEU.
283
Admittedly, according to the applicants, the measure is not selective outside the EU and would have become selective, within the EU, only if the obstacles to cross-border mergers were removed, which could be established, at the earliest, according to the applicants, only after the entry into force of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (OJ 2005 L 310, p. 1). Thus, the measure at issue would not have constituted aid at the time when it was put into effect and could therefore be regarded as existing aid within the meaning of Article 1(b)(v) of Regulation No 659/1999.
284
However, in adopting that line of reasoning, the applicants are relying on the assumption that, if obstacles to cross-border combinations did exist, the measure could be regarded as not being selective.
285
That assumption has been found to be irrelevant, inter alia, in paragraphs 201, 202 and 216 above.
286
Accordingly, it may be concluded that the applicants have not established that the measure at issue constitutes existing aid. The Commission was therefore right to classify it as unlawful aid.
287
However, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have, at that time, a legitimate expectation that its grant is lawful, except where there are exceptional circumstances (see, to that effect, judgments of 24 November 1987, RSV v Commission, 223/85, EU:C:1987:502, paragraphs 16 and 17; of 20 September 1990, Commission v Germany, C‑5/89, EU:C:1990:320, paragraphs 14 and 16; of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 134; of 27 January 1998, Ladbroke Racing v Commission, T‑67/94, EU:T:1998:7, paragraph 182; of 16 October 2014, Alcoa Trasformazioni v Commission, T‑177/10, EU:T:2014:897, paragraph 61; and of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, EU:T:2016:227, paragraph 214).
288
In the contested decision, the Commission, taking the view that it found itself in those circumstances (recitals 38 and 210 of the contested decision), did not order recovery of the aid at issue, inter alia, in respect of the beneficiaries of the measure at issue which had acquired shareholdings in a foreign company by 21 December 2007, the date of publication of the initiation decision.
289
The application of a transitional scheme was justified, according to the Commission, by the fact that it had provided specific, unconditional and consistent assurances of a nature such that the beneficiaries of the measure at issue had entertained justified hopes that the goodwill amortisation scheme was lawful, in the sense that it did not fall within the scope of State aid rules, and that any advantages derived from it could not, therefore, be subject to subsequent recovery proceedings (recital 192 of the contested decision).
290
Thus, on 19 January 2006, in response to a question from an MEP, a Commission member said the following on its behalf:
‘The Commission cannot confirm whether the high bids by Spanish companies are due to Spain’s tax legislation enabling undertakings to write off [financial] goodwill more quickly than their French or Italian counterparts. The Commission can confirm, however, that such national legislations do not fall within the scope of application of State aid rules, because they rather constitute general depreciation rules applicable to all undertakings in Spain.’
291
Furthermore, on 17 February 2006, in response to a question from an MEP, a Commission member stated the following, again on behalf of the institution:
‘According to the information currently in its possession, it would however appear to the Commission that the Spanish (tax) rules related to the write off of “goodwill” are applicable to all undertakings in Spain independently from their sizes, sectors, legal forms or if they are privately or publicly owned because they constitute general depreciation rules. Therefore, they do not appear to fall within the scope of application of the State aid rules.’
292
Although the Commission’s answers were not published in full in the Official Journal of the European Union, the question numbers, their authors, their subject, the institution addressed and the date of the responses were published (OJ 2006 C 327, p. 164 and 192).
293
It is not disputed, in the present case, that the information set out in the preceding paragraphs could have given rise to a legitimate expectation on the part of the applicants.
294
The parties disagree as to the consequences to be drawn from the adoption, on 10 October 2007, of the initiation decision, which was published, proceeded by a summary, in the Official Journal of the European Union on 21 December 2007 (see paragraph 280 above).
295
In that regard, the case-law of the Court of Justice, based on the wording of Article 108(3) TFEU, stipulates that, in the event that the Commission initiates the formal investigation procedure, the final sentence of Article 108(3) TFEU prohibits the Member State concerned from implementing the proposed measures until that procedure has resulted in a final decision. New aid is accordingly subject to the Commission’s preventive control and in principle may not be granted by the Member State concerned until that institution has declared it to be compatible with the Treaty (judgment of 30 June 1992, Spain v Commission, C‑312/90, EU:C:1992:282, paragraph 16).
296
Furthermore, the Court held that, where the Commission has initiated the formal examination procedure with regard to a new national measure which is being implemented, the suspensory effect of such a decision is also binding on national courts before which proceedings may be brought, which are required, where appropriate, to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 42).
297
Finally, it was held, with regard to a decision to initiate the formal investigation procedure in relation to a measure in the course of implementation classified as new aid by the Commission, that, after its adoption, there was at the very least a significant element of doubt as to the legality of that measure which, without prejudice to the possibility of seeking interim relief from the court with the power to grant it, had to lead the Member State to suspend payment, since the initiation of the procedure under Article 108(2) TFEU excluded the possibility of an immediate decision holding the measure compatible with the internal market which would enable it to be lawfully pursued. That doubt as to the legality of the measure at issue should also have led the undertakings which are beneficiaries of the measure to refuse new payments in any event, or to hold the necessary sums as provision for possible subsequent repayments (judgment of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 59).
298
Therefore, taking into account the suspensory effect of a decision to initiate a formal investigation procedure adopted with regard to a new national measure which is being implemented, the beneficiaries of that measure have no basis, as in the present case, to rely on exceptional circumstances which might justify legitimate expectations being maintained after that decision was adopted (see, to that effect, judgment of 22 April 2016, France v Commission, T‑56/06 RENV II, EU:T:2016:228, paragraphs 50 to 56).
299
Moreover, the transitional scheme adopted by the Commission allowed beneficiaries of the aid which had acquired shareholdings, or had irrevocably committed to acquiring shareholdings, on the date of publication of the initiation decision, to continue to be subject to that measure over the entire amortisation period prescribed. The undertakings in question were therefore able, after that date, to adjust their behaviour immediately by not entering into a commitment relating to the acquisition of a shareholding in a foreign company if they considered that, given the risk of not being able to benefit in the long term from the tax advantage provided for by the measure at issue, such a commitment did not provide sufficient economic interest.
300
Finally, it must be added that, in the summary of the initiation decision which was published, with that decision, in the Official Journal of the European Union of 21 December 2007, the Commission stated that it considered that the tax scheme at hand seemed to fulfil all the relevant conditions to be considered State aid. It also stated as follows:
‘The measure seems to constitute a derogation from the Spanish tax system as the financial goodwill is written-off even if not registered in the accounts of the acquiring company because there is no business combination between the acquiring company and the acquired company. It therefore affords an economic advantage consisting in the reduction of the tax burden of companies acquiring significant shareholding in foreign companies. The measure seems to involve State resources and be specific as it favours the undertakings carrying out certain investments.
The measure seems to affect trade between Member States because it strengthens the trading conditions of its beneficiaries being engaged in certain holding activities and competition may be affected in that, by subsidising Spanish companies bidding to acquire companies abroad, it puts non-Spanish competitors at a relative disadvantage in carrying out comparable bids in the relevant markets.
None of the derogations provided for in Article [10]7(2) and (3) seem to apply and the aid seems incompatible with the [internal] market. The Commission accordingly considers that by implementing the measure in question the Spanish authorities may have granted State aid within the meaning of Article [10]7(1) [TFEU].’
301
In view of the factors mentioned in paragraph 300 above, on the date of publication of the initiation decision, the undertakings to which the scheme at issue applied or was likely to apply could have become aware of the particular reasons why the Commission considered that the measures laid down under that scheme appeared to it to meet each of the conditions laid down in Article 107 TFEU and that they could have been regarded as incompatible with the internal market.
302
Moreover, it is not clear from the summary of the initiation decision or the chronology set out in recitals 1 to 7 of that decision that the scheme at issue may be existing aid. In particular, the undertakings in question were able to understand that that scheme, which had been put into effect before the formal investigation procedure was initiated, had not been authorised by the Commission.
303
It follows from the foregoing that the adoption of the initiation decision was sufficient, in the present case, to put an end to the legitimate expectation that may have arisen on the part of the beneficiaries of the measure at issue from the statements cited in paragraphs 290 and 291 above.
304
The applicants’ other arguments are not capable of calling that conclusion into question.
305
In the first place, in the case which gave rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502, paragraph 6), further aid had indeed been paid before the notification thereof to the Commission.
306
However, the sums that the Commission sought to recover had been paid out prior to the adoption of any decision to initiate a formal investigation procedure (see, in that regard, the Report for the Hearing published in the ECR, p. 4621 and 4622).
307
Thus, the solution adopted in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) cannot be transposed, since, in the present case, the aid the recovery of which has been ordered by the Commission, had not yet been granted on the date of publication of the initiation decision and actually concerned an advantage granted on the basis of the conduct of the beneficiaries of the aid after that decision was published (see paragraph 299 above).
308
In the second place, the applicants invoke the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), on the Belgian tax regime for coordination centres.
309
However, there are substantial differences between the context of the present case and that of the case which gave rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416).
310
First, in that case, the Commission had found in two successive decisions (paragraph 16) that the scheme at issue did not contain an aid element. It was therefore an existing aid scheme in respect of which the case-law on the recovery of aid that is unlawful and incompatible with the internal market, which finds an infringement of the principle of the protection of legitimate expectations only in exceptional circumstances (see paragraph 287 above), did not apply.
311
Moreover, the provisions of the Treaty relating to the effects of adopting a decision to initiate a formal investigation procedure and the case-law which draws conclusions from the application of those provisions where aid has been paid out unlawfully (see paragraphs 295 to 298 above), which also limit the application of the principle of the protection of legitimate expectations, did not apply.
312
Furthermore, in his Opinion in Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:89, points 404 and 405), Advocate General Léger emphasised that a situation in which the expectation had been created by the adoption of previous Commission decisions was specific in nature and, therefore, should benefit from a high degree of protection.
313
In such a case, the Commission decisions finding that there was no aid strengthen the legal position of persons to whom the measure in question applies, as they acknowledge that the aid is compatible with Article 107 TFEU until any contrary decision is adopted.
314
In that regard, it should be remembered that acts of the EU institutions are presumed to be lawful until such time as they are annulled or withdrawn (judgment of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraph 48).
315
Secondly, in the case which gave rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), at issue was whether or not the beneficiaries of an aid scheme were able to extend the period during which they were subject to that scheme.
316
In that case, the benefit from the scheme at issue was subject to obtaining authorisation which was granted for 10 years and was renewable. The contested decision provided that, as of the date of its notification, the beneficiaries of such authorisation could not have it renewed when it expired (see, to that effect, judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416, paragraphs 32 to 34).
317
The Court of Justice held that the period of approximately eight months which elapsed between the publication of the decision to initiate the formal investigation procedure and the contested decision was not sufficient to enable the recipients of the aid to address the possibility that there might be a decision terminating the regime in question. It relied, inter alia, on the fact that that regime called for measures of an accounting nature and financial and economic decisions which could not be taken in such a brief time by a prudent economic operator (judgment of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 162).
318
In its judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina (C‑519/07 P, EU:C:2009:556), the Court of Justice emphasised that, in the case giving rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), the undertakings which were benefiting from the authorisation, which could not have it renewed on account of the Commission’s decision, had made significant investments and long-term commitments as a result of that authorisation (paragraph 91).
319
In his Opinion in Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:89), Advocate General Léger stated that the scheme at issue in that case was a scheme which derogated from the ordinary tax law and which comprised a number of exemptions and a method for determining the particular tax base and that the possibility that measures of that kind may be repealed was therefore much harder for an undertaking to take into account than that of the withdrawal of a subsidy since it required not only that the economic consequences of such a repeal be taken into consideration, but also a significant degree of restructuring, particularly in relation to accounting matters (point 418).
320
On the contrary, in the present case, as held in paragraph 299 above, the undertakings to which the scheme at issue applied or was likely to apply were able, as of the date of publication of the initiation decision, to adjust their behaviour immediately by not entering into a commitment relating to the acquisition of a shareholding in a foreign company if they considered that, given the risk of not being able to benefit in the long term from the tax advantage provided for by the scheme at issue, such a commitment did not provide sufficient economic interest.
321
Therefore, all of the circumstances specific to the case giving rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), which have been set out in paragraphs 308 to 320 above, do not arise in the present case, whether it be because the aid at issue in that case was existing aid or because it concerned the requirement for the recipients of that aid, following its prohibition, to adopt measures which could not be adopted at short notice. Accordingly, the applicants have no basis for invoking that judgment.
322
In the third place, the applicants invoke that the principle of equal treatment has been infringed. They rely on Commission decisions taken in respect of tax regimes which, as the applicants state themselves, bear similarities with the Belgian tax regime for coordination centres, thus the regime examined in the case giving rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 16). However, as held in paragraph 321 above, the features of that regime are different from those of the scheme at issue.
323
Therefore, the situations invoked by the applicants in that regard are not comparable to the situation in the present case.
324
Moreover, in so far as the applicants refer to Commission decisions taken in respect of tax regimes which, in their view, bear similarities with the Belgian tax regime for coordination centres and to a number of other Commission decisions relating to tax measures, they do not establish that the Commission has granted the benefit of legitimate expectations against the background of an advantage, even after the initiation decision, resulting from further aid which had not been notified to the Commission.
325
Nor has it been established, or even alleged, that the beneficiaries of the advantages in question in the decisions on which the applicants rely could have adjusted their behaviour immediately (see paragraph 320 above).
326
As the circumstances which may potentially have been capable of justifying the grant of a transitional scheme the effects of which continue beyond the date of publication of the initiation decision have not been established and, a fortiori, invoked, the applicants’ arguments based on the Commission’s decision-making practice in respect of the protection of legitimate expectations must be rejected.
327
As regards the Commission’s decision of 31 October 2000 on Spain’s corporation tax laws (OJ 2001 L 60, p. 57), the only decision resulting from the Commission’s decision-making practice invoked by the applicants for which they have provided enough information to enable the General Court to examine in detail whether the context of that case was comparable to that of the present case, it is, as the Commission rightly pointed out, a decision that was adopted pursuant to the ECSC Treaty for which the conditions for monitoring aid were not comparable to those provided for by the EC Treaty and subsequently by the FEU Treaty. In particular, the ECSC Treaty did not contain provisions similar to that contained in Article 108(3) TFEU on which the case-law cited in paragraph 295 above is based.
328
Furthermore, that decision predates the judgment of 9 October 2001, Italy v Commission (C‑400/99, EU:C:2001:528), cited in paragraph 297 above, according to which, after the adoption of a decision to initiate a formal investigation procedure, there is, at the very least, a significant element of doubt as to whether the measure in question complies with EU rules on State aid.
329
Therefore, such a decision cannot lead to the conclusion that there was a legitimate expectation on which the applicants are entitled to rely.
330
It follows from the foregoing that, even if the argument relating to the Commission’s previous decision-making practice regarding the arrangements for the recovery of aid and whether or not they are contrary to the principle of the protection of legitimate expectations is effective for the purposes of relying on that principle, such an argument is, in any event, unfounded.
331
In the light of all the foregoing considerations, the applicants’ first complaint must be rejected.
(b)
The second complaint, raised in the alternative
332
As a preliminary point, it should be noted that, in addition to not ordering the recovery of the aid at issue, inter alia, in respect of the beneficiaries of the measure at issue which had acquired shareholdings in a foreign company by 21 December 2007, the date of publication of the initiation decision (see paragraph 280 above), the Commission also did not order the recovery of that aid in respect of the beneficiaries of the measure at issue which, by 25 May 2011, the date of publication of the contested decision, had acquired majority shareholdings in foreign companies established in China, India or in other countries where the existence of explicit legal obstacles to cross-border business combinations had been or could have been demonstrated.
333
The Commission justified the implementation of a transitional scheme of that kind by stating, in recital 117 of the decision of 28 October 2009, that it could have given rise to a well-founded expectation as to the absence of State aid in respect of ‘transactions by Spanish companies in those third countries where there are explicit “legal barriers” to cross-border business combinations and where a “majority shareholding” has been acquired by the Spanish company concerned’ (recital 197 of the contested decision).
334
The applicants dispute the conditions imposed by the Commission to ensure that, in certain situations, the date of publication of the contested decision is taken into consideration as the reference date for the purposes of determining which aid must be the subject of a recovery measure. In their view, that date should have been used for all transactions performed in third countries since they consider that the legitimate expectation created inter alia by recital 117 of the decision of 28 October 2009 is not limited only to the situations that were ultimately used by the Commission in the contested decision.
335
In that regard, it should be recalled that, with regard to further aid, the adoption of a decision to initiate a formal investigation procedure has suspensive effects and therefore puts an end to the legitimate expectation that may previously have arisen on the part of its beneficiaries (see paragraphs 295 to 298 above).
336
However, since, in the decision of 28 October 2009, the Commission did not conclude, with regard to cross-border transactions, that there was no aid or that the measure constituted aid compatible with the internal market, but merely decided to continue the formal investigation procedure, the effects of the initiation decision, which put an end to the legitimate expectation that may have arisen prior to its publication, remained.
337
It should also be recalled that, in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), the reliance on the principle of the protection of legitimate expectations led to the annulment of a Commission decision ordering the recovery of unlawful aid in a situation in which, unlike the situation in the present case, the sums that the Commission sought to recover had been paid out prior to the adoption of any decision to initiate a formal investigation procedure (see paragraphs 306 and 307 above).
338
Therefore, the applicants have no basis to rely on an infringement of the principle of the protection of legitimate expectations in respect of the assurances that the Commission could have conveyed in the decision of 28 October 2009 or in other documents subsequent to that decision.
339
Moreover, the fact, were it to be established, that there are inconsistencies in the transitional scheme or that it does not observe the principle of legal certainty, cannot establish that — before the contested decision was adopted — the Commission caused the applicants to entertain expectations which are justified, since that scheme was not introduced by the Commission until that decision was adopted. The argument in question, which is invoked only in support of the plea alleging infringement of the principle of the protection of legitimate expectations, must therefore be rejected.
340
In any event, it must be recalled that the right to rely on the principle of the protection of legitimate expectations requires that three conditions be satisfied cumulatively (see paragraph 263 above).
341
However, there is no evidence in the file on which the applicants rely to establish that the three cumulative conditions mentioned in paragraph 340 above have been satisfied.
342
Thus, first, in the decision of 28 October 2009 and, in particular, in recital 117 thereof, the Commission admittedly left open the possibility that the application of a different tax treatment to cross-border transactions performed outside the EU may be justified. It stated, inter alia, that it could not ‘a priori completely exclude this differentiation’ as regards those transactions and it had decided to initiate a formal investigation procedure in respect of those transactions. However, in so doing, the Commission did not provide sufficiently precise and unconditional assurances to again give rise to a legitimate expectation in a context in which, with regard to unlawful aid, a decision to initiate a formal investigation procedure had been adopted even before the conduct had taken place that led to advantage, in respect of which recovery was demanded, being granted (see paragraphs 299, 307 and 320 above).
343
Secondly, the applicants rely on a letter, dated 16 October 2009, from the Commissioner responsible for competition and ask the General Court to order its production.
344
In that regard, it should be pointed out that that letter is addressed to the Spanish Minister for Economy and Finance and not the applicants. Moreover, it is not clear from the documents in the case file that such a letter was intended for publication or to be made public. Finally, the mere fact that the applicants are asking the General Court to obtain that letter from the Commission demonstrates that the applicants were not aware of its content.
345
In that context, the applicants do not refer to any factor to enable the conclusion to be drawn, in accordance with the first and second cumulative conditions mentioned in paragraph 263 above, that, by the letter of 16 October 2009, the Commission provided them with precise and consistent assurances that were such as to give rise to a legitimate expectation on their part.
346
It must be added in that regard that there is no need to grant the applications for measures of organisation of procedure submitted by the applicants in so far as they are seeking to obtain the letter of 16 October 2009 since that letter has been supplied to the General Court by the Kingdom of Spain.
347
In the light of the foregoing, the second complaint must be rejected, as must the third plea in law in its entirety.
348
As regards the failure to state reasons in the contested decision, even if such a failure was invoked by the applicants, it should be noted that, as is clear from the substantive analysis that the General Court has been able to carry out in the foregoing, in the contested decision, the Commission has explained and justified the arrangements for the recovery of the aid in a sufficiently precise and coherent manner such as to enable the applicants to challenge the validity of that decision and the EU Courts to review its lawfulness (see, to that effect, judgment of 18 September 1995, Tiercé Ladbroke v Commission, T‑471/93, EU:T:1995:167, paragraph 29). Reference can be made in that regard to paragraphs 281, 289 and 333 above in particular, which refer expressly to certain passages in the contested decision.
349
Thus, even assuming that the third plea also seeks to challenge the formal legality of the contested decision, it should, in any event, be rejected as unfounded.
350
It follows from all of the foregoing that all of the pleas in law raised in support of the present action must be rejected.
351
The action must therefore be dismissed in its entirety.
IV. Costs
352
Pursuant to Article 219 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that, in the judgment in World Duty Free, the Court of Justice reserved the applicants’ and the Commission’s costs, it is for the General Court also to decide, in the present judgment, on the costs in relation to the appeal proceedings in Case C‑21/15 P (see paragraph 18 above).
353
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 have been unsuccessful, they shall bear their own costs and pay those of the Commission, in accordance with the form of order sought by the latter.
354
With regard to the interveners, given that, in the judgment in World Duty Free, the Court of Justice made a decision as to their costs, a decision must be made only as to their costs in relation to the present proceedings.
355
In accordance with Article 138(1) of the Rules of Procedure, which provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs, it is appropriate to decide that the Federal Republic of Germany, Ireland and the Kingdom of Spain shall each bear their own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders Banco Santander, SA and Santusa Holding, SL to bear their own costs and to pay those incurred by the European Commission;
3.
Orders the Federal Republic of Germany, Ireland and the Kingdom of Spain to bear their own respective costs.
Gervasoni
Madise
da Silva Passos
Kowalik-Bańczyk
Mac Eochaidh
Delivered in open court in Luxembourg on 15 November 2018.
[Signatures]
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought
III. Law
A. The first plea in law, alleging that the measure at issue is not selective
1. Arguments of the parties
2. Findings of the Court
(a) The measure at issue is not prima facie selective
(b) The existence of a derogation
(1) The first step
(2) The second step
(c) The measure at issue is justified in the light of the nature and general scheme of the system of which it forms part (third step)
B. The second plea in law, alleging an error in determining the beneficiary of the measure at issue
1. Arguments of the parties
2. Findings of the Court
C. The third plea in law, alleging infringement of the principle of the protection of legitimate expectations
1. Arguments of the parties
2. Findings of the Court
(a) The first complaint, raised as the principal argument
(b) The second complaint, raised in the alternative
IV. Costs
(
*1
)	Language of the case: Spanish.