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‑219/10 RENV,

World Duty Free Group, SA, formerly Autogrill España, SA, established in Madrid (Spain), represented by J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, lawyers,

applicant,

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 D. Browne, acting as Agents, and by B. Doherty and A. Goodman, Barristers,

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) of Commission 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) and, in the alternative, of Article 4 of that decision,

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 1 year, the financial goodwill (see paragraphs 67 and 69 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 contested decision’).

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 (Article 1(1) of the contested decision). Article 4 of the contested decision provides, in particular, that the Kingdom of Spain should recover the aid granted.

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 decision of 12 January 2011’), which 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.

II. Procedure and forms of order sought

12 By application lodged at the Registry of the General Court on 14 May 2010, the applicant, World Duty Free Group, SA, brought an action for annulment of the contested decision.

13 By judgment of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939), the General Court upheld those claims on the ground that the Commission had incorrectly applied the condition of selectivity laid down in Article 107(1) TFEU.

14 Moreover, the decision of 12 January 2011 has also been annulled by the General Court in its judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938).

15 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, Autogrill España v Commission (T‑219/10, EU:T:2014:939). That appeal, which was registered under number C‑20/15 P, was joined to the appeal, registered under number C‑21/15 P, that the Commission had brought against the judgment of 7 November 2014, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938).

16 The applicant, supported by the Federal Republic of Germany, by Ireland and by the Kingdom of Spain, requested that the appeal be dismissed.

17 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, Autogrill España v Commission (T‑219/10, EU:T:2014:939), 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, Banco Santander and Santusa v Commission (T‑399/11, EU:T:2014:938).

18 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.

19 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.

20 Upon hearing the report of the Judge-Rapporteur, the General Court decided to open the oral part of the procedure.

21 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‑399/11 RENV, Banco Santander and Santusa v Commission, were joined for the purposes of the oral part of the procedure, in accordance with Article 68 of the Rules of Procedure.

22 The parties presented oral argument at the hearing on 31 January 2018.

23 The applicant claims 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; – order the Commission to pay the costs.

24 The Commission contends that the Court should: – dismiss the action as inadmissible or, failing that, declare that there is no longer any need to adjudicate; – failing that, dismiss the action as unfounded; – order the applicant to pay the costs.

25 The applicant also requests that the Court adopts measures of organisation of procedure in order to obtain documents from the Commission.

26 The Kingdom of Spain claims that the Court should: – uphold the action for annulment; – order the Commission to pay the costs.

III. Law

27 The Commission submits that the present action is inadmissible since the applicant is not concerned by the measure at issue. In the alternative, it submits that the applicant now has no interest in bringing proceedings.

28 The applicant submits that its action is admissible.

29 It should be recalled that the EU Courts are entitled to assess, depending on the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits, without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).

30 In the present case, the General Court is justified in examining the merits of the action and, if appropriate, in not adjudicating on the applicant’s locus standi and on its interest in bringing proceedings.

31 In that regard that, the applicant puts forward three pleas in law in support of its action. 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

32 In the context of the first plea, the applicant raises 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.

33 It should be noted, with regard to the latter two complaints, that the applicant states that, in the application, it puts forward a comprehensive line of argument which can apply to both complaints.

34 In the context of the first complaint, the applicant submits, 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. It states 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.

35 The applicant also relies 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 and on an inconsistency on the Commission’s part in terms of its own practice.

36 Lastly, the applicant submits that the contested decision contains insufficient reasoning in that regard.

37 In the context of the second complaint, the applicant submits 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. 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.

38 The applicant refers in that regard to a number of judgments of the Court of Justice.

39 In the context of the third complaint, the applicant submits that the derogation introduced by the measure at issue is 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.

40 In that regard, the applicant submits that obstacles to cross-border combinations exist within the European Union itself. The fact, were it to be established, that such obstacles constitute infringements of EU law does not make it possible however, in its view, to conclude that the obstacles do not exist. Moreover, not all of the obstacles constitute infringements. Even if the obstacles in question have disappeared, the fact that they existed when the measure at issue was adopted should prompt the Commission to classify it as existing aid.

41 According to the applicant, the contested decision is vitiated by a failure to state reasons in that the Commission does not explain why there are no obstacles to cross-border combinations.

42 The applicant also criticises the Commission’s reasoning, in accordance with which the measure at issue is disproportionate and too imprecise in nature. According to the applicant, the measure at issue applied, rightly, until the 5% shareholding threshold was reached. In any event, the Commission should have declared that the measure at issue was not selective with regard to the acquisition of majority shareholdings. The contested decision should therefore be annulled at least in so far as it declares that the application of the measure at issue to acquisitions of majority shareholdings constitutes State aid.

43 It relies on a number of judgments in that regard.

44 Moreover, the applicant criticises certain paragraphs of the contested decision in which the Commission confirms its reasoning with considerations relating to the distortive effects of the measure at issue on the internal market.

45 The Kingdom of Spain considers 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.

46 The Kingdom of Spain considers that the measure at issue is not related to the ‘competitiveness principle’.

47 It also submits that the advantage conferred by the measure at issue is available to any undertaking, whatever its business activity.

48 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.

49 The Kingdom of Spain submits that the Commission did not take into account the legal and practical obstacles to cross-border business combinations within the European Union, 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, despite the subsequent adoption of EU rules on that subject.

50 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 business combinations. 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 administration. Those obstacles cannot be limited to explicit legal obstacles.

51 The Kingdom of Spain submits that the existence of legal obstacles, but also economic and practical obstacles to cross-border business combinations, is established.

52 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.

53 The Commission states that the measure at issue 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, the 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.

54 The Commission states that, in the contested decision, it did not acknowledge that the presence of obstacles to cross-border combinations may justify the measure at issue.

55 The Commission submits that the existence of such obstacles in the European Union has not been established.

56 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 financial goodwill.

57 The Commission notes that, contrary to what, in its view, is stated in the application, the Spanish authorities did not ask it to find that there was no aid where the measure at issue had been applied to majority shareholdings.

58 Finally, the Commission rejects the applicant’s argument as to the distortions that the measure at issue may cause on the internal market.

2. Findings of the Court

59 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).

60 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).

61 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).

62 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).

63 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).

64 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, such measures being, 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).

65 Therefore, using a three-step method, as set out in paragraphs 63 and 64 above, it is possible to conclude that a national tax measure is selective.

66 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.

67 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 18 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 99 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 18 of the contested decision).

68 Recital 19 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.

69 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 20 of the contested decision).

70 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 96 of the contested decision). It 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’ (recital 89 of the contested decision). 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.

71 The Commission also stated that, by allowing the financial goodwill that would have been recorded 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 100 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 19, 20 and 99 of the contested decision).

72 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 100 of the contested decision).

73 The Commission continued by noting, in recital 111 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 91 of the contested decision, the Commission had already pointed out that the measure at issue was imprecise and indiscriminate, but also discriminatory, in nature.

74 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 111 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 113 of the contested decision).

75 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 114 of the contested decision).

76 It must be assessed whether, in the light of each of the three complaints raised by the applicant, 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

77 In the judgment of 7 November 2014, Autogrill España v Commission (T‑219/10, EU:T:2014:939), 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 34 to 45, 52 and 79 to 81).

78 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, Autogrill España v Commission (T‑219/10, EU:T:2014:939, paragraphs 53 to 61).

79 On the basis of that finding regarding the accessibility of the measure at issue, the Court, applying the reasoning set out in paragraph 77 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’.

80 By the judgment in World Duty Free, the Court of Justice invalidated the reasoning set out in paragraph 77 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).

81 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 resident undertakings, when they acquire shareholdings in companies resident for tax purposes in Spain, 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).

82 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.

83 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.

84 The Court should therefore apply that reasoning to the measure at issue.

85 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.

86 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.

87 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 78 above), which chooses to acquire shareholdings in a resident company.

88 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.

89 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 applicant 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

90 By the second complaint, the applicant criticises the Commission’s application in the present case of the first two steps of the method mentioned in paragraphs 63 and 64 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. It disputes, in essence, the comparisons taken into account by the Commission in the context of those two steps.

91 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 63 and 64 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

92 As was pointed out in paragraph 70 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.

93 However, according to the applicant, 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. 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.

94 The arguments put forward by the applicant lead the Court to question the relevance of the reference framework chosen by the Commission in the present case, which, according to the applicant, 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.

95 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 63 and 64 above).

96 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.

97 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).

98 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.

99 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.

100 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 reductions of 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’.

101 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.

102 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.

103 Moreover, the comparability of those situations also enables the finding that a derogation exists (see paragraph 63 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.

104 Thus, an overall reasoning with regard to the first two steps of the method mentioned in paragraphs 63 and 64 above may, in some cases, result in both the normal regime and the existence of a derogation being determined.

105 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 63 and 64 above, that those companies cannot, in principle, be regarded as being in a comparable factual and legal situation to that of commercial companies.

106 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 63 and 64 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.

107 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).

108 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 100 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.

109 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 applicant claims, 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.

110 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.

111 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 37 and 97 of the contested decision).

112 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.

113 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 19 and 99 of the contested decision).

114 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 23 of the contested decision) which it uses where it is limited to the case of shareholding acquisitions (recitals 20 and 27 of the contested decision) —, is therefore a prerequisite for the amortisation of goodwill.

115 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.

116 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.

117 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 113 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 19 and 99 of the contested decision).

118 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.

119 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 18 and 97 of the contested decision).

120 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.

121 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 116 and 118 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.

122 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.

123 Thus, in the context of the first step of the method mentioned in paragraphs 63 and 64 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 70 above).

124 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 63 and 64 above, that the measure at issue derogated from the normal regime (judgment in World Duty Free, paragraph 57).

125 It follows from all of the foregoing that the applicant’s complaint must be rejected not only in so far as it concerns the first step of the method mentioned in paragraphs 63 and 64 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 104 above).

126 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 applicant submits.

127 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).

128 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.

129 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.

130 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.

131 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.

132 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.

133 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’.

134 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 127 above). It is therefore appropriate to apply the considerations set out in paragraphs 128 to 133 above.

135 In that regard, it should be noted that, as the Commission rightly stated in recital 100 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.

136 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.

137 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 48 and 80 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.

138 Moreover, in so far as its objective is to solve a specific problem, that of 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.

139 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.

140 It is clear from the foregoing that the reference system cannot be confined only 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 123 above).

141 In the light of the foregoing considerations and, in particular, those in paragraphs 121 and 138 above, the applicant’s 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

142 The applicant submits that the Commission, which, in its 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.

143 With regard to the second step of the method mentioned in paragraphs 63 and 64 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; of6 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).

144 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 63 and 64 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 102 to 108 and 125 above).

145 In accordance with the case-law referred to in paragraph 143 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.

146 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 116 to 121 above).

147 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 137 above).

148 The applicant’s argument concerning the existence of obstacles to cross-border combinations, which, contrary to its 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 63 and 64 above. It will be reconsidered, however, in the context of the third complaint, concerning the third step of that method.

149 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 124 above).

150 The applicant’s complaint must therefore be rejected.

151 The conclusion set out in paragraph 150 above cannot be called into question by the case-law invoked by the applicant.

152 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.

153 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).

154 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).

155 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.

156 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 143 above).

157 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).

158 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 63 and 64 above.

159 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).

160 In that case, the Court therefore adopted an approach which, in fact, comes under the third step of the method mentioned in paragraphs 63 and 64 above, which is based on examining whether the difference in treatment found is justified.

161 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 63 and 64 above.

162 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 applicant, 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 158 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.

163 In any event, the conclusion reached by the General Court in paragraph 150 above is based on the most recent case-law of the Court of Justice, set out in paragraph 143 above.

164 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)

165 The applicant submits 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, it refers to the third step of the method of analysis mentioned in paragraphs 63 and 64 above.

166 As was pointed out in paragraph 64 above, the Court of Justice held, in the context of the third step of the method of analysis mentioned in paragraphs 63 and 64 above, that 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, such measures being, 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.

167 In that connection, it must 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).

168 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.

169 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.

170 The differentiation introduced by the measure at issue is therefore justified since it stems from the principle of fiscal neutrality.

171 However, the principle of neutrality, which is recognised in Spanish tax law (recital 112 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.

172 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.

173 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 63 and 64 above.

174 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.

175 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).

176 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 64 above).

177 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 applicant is sufficient to justify the derogation noted in paragraph 149 above.

178 The applicant takes 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 which prevent them from merging with a non-resident company and, therefore, from benefiting from the amortisation of goodwill.

179 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.

180 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.

181 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.

182 However, the premiss referred to in paragraph 180 above has not been established.

183 Admittedly, the applicant claims 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.

184 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.

185 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.

186 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 176 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.

187 Moreover, the applicant has not demonstrated that either.

188 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.

189 In that regard it may be observed that, in recital 91 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.

190 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 111 and 113 of the contested decision) disproportionate and, therefore, unjustified.

191 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.

192 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.

193 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 184 above).

194 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.

195 In that regard, the Commission correctly pointed out, in recital 91 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’.

196 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.

197 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.

198 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 188 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 190 above).

199 In conclusion, as is clear from both of the independent grounds set out in the considerations in paragraphs 176 to 198 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.

200 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 140 above) and the measure at issue introduces a derogation from that system (see paragraph 149 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.

201 The applicant’s 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 its arguments concerning the existence of obstacles which make cross-border mergers difficult or impossible.

202 Accordingly, there is also no reason to grant the applications for measures of organisation of procedure submitted by the applicant 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.

203 The conclusion set out in paragraph 201 above cannot be called into question by the other arguments put forward by the applicant.

204 In the first place, according to the applicant, 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.

205 However, as was pointed out in paragraph 193 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.

206 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).

207 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).

208 In that regard, the applicant invokes 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).

209 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 207 above).

210 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 applicant, 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 applicant does 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.

211 In particular, the case-law mentioned in paragraphs 208 to 210 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).

212 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 64 and 176 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.

213 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 178 to 198 above).

214 Thus, even if the Commission’s examination, during the formal investigation procedure, of cases regarding the acquisition of majority shareholdings was 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 204 to 213 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.

215 Accordingly, there is also no reason to grant the applications for measures of organisation of procedure submitted by the applicant 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.

216 Furthermore, the applicant submits 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, it 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.

217 That application must be rejected.

218 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 176 to 188 above).

219 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 205 above).

220 Secondly, in the light of the considerations set out in paragraphs 206 to 213 above, even though, according to the applicant, 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.

221 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.

222 Therefore, the argument set out in paragraph 216 above must be rejected, as must the claims in the alternative which are based on that argument.

223 In the second place, with regard to the reference to the Commission’s decision-making practice, that argument must be rejected.

224 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).

225 It follows from the foregoing considerations that, in any event (see paragraph 201 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.

226 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 65 to 75 above, the Commission’s decision in that regard contained an adequate statement of reasons for the finding that the measure at issue is selective.

227 Finally, with regard to the alleged effects of the measure at issue on the internal market and the arguments put forward by the applicant in that regard, it is sufficient to note that, in so far as it finds that the measure at issue is selective, the contested decision does not rely on the existence of such distortions. Even if it did, it follows from all of the foregoing considerations that the Commission rightly found that the measure at issue was selective without the need, in order to reach such a finding, to rely on the possible distortion effects that the measure at issue may have on the internal market.

228 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

229 The applicant disputes, 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.

230 The applicant submits 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.

231 The applicant also relies on the Commission’s previous practice.

232 The Commission submits that the inconsistency invoked by the applicant does not exist.

233 In any event, according to the Commission, the undertakings to which the measure at issue applies benefit from an advantage.

2. Findings of the Court

234 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.

235 According to the applicant, 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.

236 That argument must be rejected on the basis of each of the three following independent grounds.

237 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.

238 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).

239 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.

240 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, Com