Judgment of the General Court (Sixth Chamber, Extended Composition) of 20 September 2019 —

Port autonome du Centre et de l’Ouest and Others v Commission

(Case T‑673/17)

(State aid — Corporate tax exemption scheme implemented by Belgium in favour of its ports — Decision declaring the aid scheme incompatible with the internal market — Concept of economic activity — Services of general economic interest — Non-economic activities — Severability — Selectivity — Article 93 TFEU and Article 106(2) TFEU)

1. Actions for annulment — Admissibility criteria — Natural or legal persons — Action brought by several applicants against the same decision — Capacity to act of one of them — Admissibility of the action as a whole (Art. 263, fourth para., TFEU) (see para. 36)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Clear and precise statement of the pleas relied on — Grouping of arguments at the reply stage — Whether permissible (Rules of Procedure of the General Court, Art. 76(d)) (see paras 38-40)

3. Judicial proceedings — Intervention — Pleas different from those of the main party supported — Pleas not capable of being attached to those of the main party supported — Inadmissibility (Statute of the Court of Justice, Art. 40, fourth para.; Rules of Procedure of the General Court, Art. 142(3)) (see paras 44-47)

4. Competition — EU rules — Addressees — Undertakings — Definition — Exercise of an economic activity — Definition — Grant of access to a port infrastructure in return for port charges — Included (Art. 107(1) TFEU) (see paras 61-64, 67, 68)

5. State aid — Examination by the Commission — Examination of an aid scheme as a whole — Whether permissible — Consequences — General and abstract identification of the economic activities of operators active in a sector (Arts 107 and 108 TFEU) (see paras 66, 67, 86)

6. Competition — EU rules — Addressees — Undertakings — Definition — Exercise of an economic activity — Definition — Services provided by port authorities at public, non-discriminatory rates set in advance — Included — Port authorities exercising economic activities in the context of not-for-profit public service tasks — Competition with operators seeking to make a profit — Included (Art. 107(1) TFEU) (see paras 77-83)

7. Competition — EU rules — Addressees — Undertakings — Definition — Operators active in the port sector vested with public powers — Exercise of economic activities separable from the exercise of public powers — Included (Art. 107(1) TFEU) (see paras 92-94, 97-101, 104)

8. State aid — Definition — Selectivity of the measure — Measure conferring a tax advantage — Reference framework for determining the existence of an advantage — Criteria (Art. 107(1) TFEU) (see paras 136-141, 150-169, 192-195)

9. State aid — Definition — Selective nature of the measure — Measure conferring a tax advantage — System of taxation of profits of companies carrying out profit-making activities — Unconditional exemption of entities engaged in economic activities — Appropriate criterion for establishing the selectivity of the measure — Introduction between operators that are in a comparable factual and legal situation of a distinction that is not justified by the nature and general structure of a general tax system (Art. 107(1) TFEU) (see paras 171, 176-189, 192-195, 197-206)

10. State aid — Definition — State intervention in areas which have not been harmonised in the European Union — Direct taxation — Included (Art. 107(1) TFEU) (see paras 208-212)

11. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility (Rules of Procedure of the General Court, Art. 84) (see para. 219)

12. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid meeting the needs of coordination of transport or representing reimbursement for the discharge of public service obligations within the meaning of Article 93 TFEU — Assessment — Non-targeted tax exemption not limited to the amount necessary — Not included (Arts 93, 106(2) and 107(3) TFEU) (see paras 220-224)

Re:

Application under Article 263 TFEU for annulment of Commission Decision (EU) 2017/2115 of 27 July 2017 on aid scheme SA.38393 (2016/C, ex 2015/E) implemented by Belgium — Taxation of ports in Belgium (OJ 2017 L 332, p.1).

Operative part

The Court:

1. Dismisses the action;

2. Orders Port autonome du Centre et de l’Ouest SCRL, Port autonome de Namur, Port autonome de Charleroi, Port autonome de Liège and Région wallonne to pay, in addition to their own costs, the costs incurred by the European Commission;