JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)

9 September 2009 ( *1 )

‛State aid — Tax advantages granted by a territorial entity within a Member State — Tax credit of 45% of the amount of investments — Decisions declaring aid schemes incompatible with the common market and requiring recovery of aid paid out — Trade association — Admissibility — Classification as new aid or as existing aid — Principle of the protection of legitimate expectations — Principle of legal certainty — Principle of proportionality’

In Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01,

Territorio Histórico de Álava — Diputación Foral de Álava (Spain),

Comunidad autónoma del País Vasco — Gobierno Vasco (Spain),

represented initially by R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicants in Case T-227/01,

supported by

Cámara Oficial de Comercio e Industria de Álava (Spain), represented by I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers,

and by

Confederación Empresarial Vasca (Confebask), established in Bilbao (Spain), represented initially by M. Araujo Boyd and R. Sanz, and subsequently by M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers,

interveners,

Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (Spain),

Comunidad autónoma del País Vasco — Gobierno Vasco,

represented initially by R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicants in Case T-228/01,

supported by

Cámara Oficial de Comercio, Industria y Navegación de Vizcaya (Spain), represented by I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers,

and by

Confederación Empresarial Vasca (Confebask), established in Bilbao, represented initially by M. Araujo Boyd and R. Sanz, and subsequently by M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers,

interveners,

Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (Spain),

Comunidad autónoma del País Vasco — Gobierno Vasco,

represented initially by R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicants in Case T-229/01,

supported by

Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa (Spain), represented by I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers,

and by

Confederación Empresarial Vasca (Confebask), established in Bilbao, represented initially by M. Araujo Boyd and R. Sanz, and subsequently by M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers,

interveners,

Confederación Empresarial Vasca (Confebask), established in Bilbao, represented by M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers,

applicant in Cases T-265/01, T-266/01 and T-270/01,

v

Commission of the European Communities, represented initially by J.L. Buendía Sierra, and subsequently by F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents,

defendant,

supported by

Comunidad autónoma de La Rioja (Spain), represented initially by A. Bretón Rodríguez, and subsequently by J.M. Criado Gámez and I. Serrano Blanco, lawyers,

intervener,

APPLICATIONS in Cases T-227/01 and T-265/01 for annulment of Commission Decision 2002/820/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45% of investments (OJ 2002 L 296, p. 1); APPLICATIONS in Cases T-228/01 and T-266/01 for annulment of Commission Decision 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45% of investments (OJ 2003 L 17, p. 1); and APPLICATIONS in Cases T-229/01 and T-270/01 for annulment of Commission Decision 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45% of investments (OJ 2002 L 314, p. 26),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

composed of M. Vilaras, President, M.E. Martins Ribeiro, F. Dehousse (Rapporteur), D. Šváby and K. Jürimäe, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 January 2008,

gives the following

Judgment

Legal context

I — Community legislation

1 Article 87 EC provides: ‘1. Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market. … 3. The following may be considered to be compatible with the common market: (a) aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment; … (c) aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest; …’

2 Article 88 EC provides: ‘1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the common market. 2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission. … 3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.’

3 Article 1 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) provides: ‘For the purpose of this Regulation: … (b) “existing aid” shall mean: (i) … all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty; (ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council; … (v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation; (c) “new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid; … (f) “unlawful aid” shall mean new aid put into effect in contravention of Article [88](3) [EC]; …’

4 Under Article 2(1) and Article 3 of Regulation No 659/1999, ‘any plans to grant new aid shall be notified to the Commission in sufficient time by the Member State concerned’ and cannot be put into effect ‘before the Commission has taken, or is deemed to have taken, a decision authorising such aid’.

5 In relation to measures which are not notified, Article 10(1) of Regulation No 659/1999 provides that, ‘where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay’. Article 13(1) of the same regulation provides that that examination is to result, where appropriate, in a decision to initiate a formal investigation procedure. Article 13(2) of that regulation states that in cases of unlawful aid the Commission is not bound by the time-limits applicable in relation to the preliminary examination and the formal investigation procedure in cases of notified aid.

6 Article 14(1) of Regulation No 659/1999 states: ‘Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary … The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law.’

7 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 on tax aid to businesses’) contains, inter alia, provisions relating to the distinction between State aid and general measures. Paragraphs 13 and 14 of that notice provide: ‘13. Tax measures which are open to all economic agents operating within a Member State are in principle general measures … Provided that they apply without distinction to all firms and to the production of all goods, the following measures do not constitute State aid: — tax measures of a purely technical nature …, — measures pursuing general economic policy objectives through a reduction of the tax burden related to certain production costs … 14. The fact that some firms or some sectors benefit more than others from some of these tax measures does not necessarily mean that they are caught by the competition rules governing State aid. Thus, measures designed to reduce the taxation of labour for all firms have a relatively greater effect on labour intensive industries than on capital intensive industries, without necessarily constituting State aid …’

8 As regards aid connected with an investment, that is defined in footnote 1 to Annex I to the guidelines on national regional aid (OJ 1998 C 74, p. 9), as amended (OJ 2000 C 258, p. 5: ‘the 1998 Guidelines’), as follows: ‘Tax aid may be considered to be aid connected with an investment where it is based on the amount invested. In addition, any tax aid may be connected with an investment if it is paid up to a ceiling expressed as a percentage of the investment …’

II — National legislation

9 The tax arrangements in force in the Basque Country of Spain are governed by the Economic Agreement established by Spanish Law 12/1981 of 13 May 1981, as last amended by Law 38/1997 of 4 August 1997.

10 Under that legislation, the Territorios Históricos of Álava, Vizcaya and Guipúzcoa (Spain) may, under certain conditions, organise the tax systems within their respective territories. In that context, they have adopted various tax relief measures and in particular the tax credits of 45% at issue in the present actions.

A — Tax credit established by the tax legislation of the Territorio Histórico of Álava

11 The Sixth Additional Provision of Norma Foral No 22/1994 of 20 December 1994, implementing the 1995 budget of the Territorio Histórico of Álava (‘the Sixth Additional Provision of Norma Foral No 22/1994 of Álava’) provides: ‘Investments in new fixed assets made between 1 January 1995 and 31 December 1995 which exceed ESP 2500 million [Spanish pesetas] shall, by decision of the Diputación Foral de Álava, receive a tax credit of 45% of the amount of investment determined by the Diputación Foral de Álava, to be applied to the final amount of tax payable. Any tax credit not used up because it exceeds the amount of tax liability may be applied in the nine years following the year in which the decision of the Diputación Foral de Álava was adopted. The decision of the Diputación Foral de Álava shall lay down the time-limits and restrictions applicable in each case. The advantages granted under this provision may not be combined with any other fiscal advantage in respect of the same investment. The Diputación Foral de Álava shall also determine the length of the investment process, which may include investments made during the preparation of the project which generates the investment.’

12 The validity of that provision was extended, for the year 1996, by the Fifth Additional Provision of Norma Foral No 33/1995 of 20 December 1995, as amended by point 2.11 of the single derogating provision of Norma Foral No 24/1996 of 5 July 1996, which deleted the reference to nine years in the second paragraph of the Sixth Additional Provision of Norma Foral No 22/1994 of Álava. For 1997 the measure was extended by the Seventh Additional Provision of Norma Foral No 31/1996 of 18 December 1996.

13 The tax credit of 45% of the amount of the investment was retained, in an amended form, for the years 1998 and 1999 respectively by means of the Eleventh Additional Provision of Norma Foral No 33/1997 of 19 December 1997 and the Seventh Additional Provision of Norma Foral No 36/1998 of 17 December 1998. Those provisions state inter alia: ‘… any investment process commenced after 1 January [1998/99], exceeding ESP 2500 million, shall be entitled to a tax credit of 45% of the amount of the investment. That tax credit shall be applied to the final amount of tax payable. … The investment process shall include those investments made during the preparatory phase of the project which generates the investments and with a necessary, direct link to that process. The application of the tax credit to which this general provision refers shall be notified by the taxpayer to the Diputación Foral de Álava, using the form approved for that purpose by the Provincial Commission for Tax, Finance and Budgets.’

14 That tax credit was not extended to years subsequent to 1999.

B — Tax credits established by the tax legislation of the Territorios Históricos of Vizcaya and Guipúzcoa

15 The Fourth Additional Provision of Norma Foral No 7/1996 of Vizcaya of 26 December 1996, extended by the Second Additional Provision of Norma Foral No 4/1998 of 2 April 1998, and, in similar terms, the Tenth Additional Provision of Norma Foral No 7/1997 of Guipúzcoa of 22 December 1997 provide: ‘Investments in new fixed assets made after 1 January 1997 which exceed ESP 2500 million shall, by decision of the Diputación Foral de [Vizcaya/Guipúzcoa], receive a tax credit of 45% of the amount of investment determined by the Diputación Foral de [Vizcaya/Guipúzcoa], to be applied to the final amount of tax payable. Any tax credit not used up because it exceeds the amount of tax liability may be applied in the five tax years following the year in relation to which the decision to grant the tax credit was adopted. The date from which the time-limit for using the tax credit starts to run may be postponed until the first year during the limitation period in which profits are made. The decision referred to in the first paragraph shall lay down the time-limits and restrictions applicable in each case. Advantages granted under this provision may not be combined with any other tax advantage in respect of the same investments. The Diputación Foral de [Vizcaya/Guipúzcoa] shall also determine the duration of the investment process, which may include investments made during the preparatory phase of the project which generates the investment in respect of which the tax advantage is granted.’

16 Those provisions were repealed by Norma Foral No 7/2000 of 19 July 2000 in the Territorio Histórico of Vizcaya and by Norma Foral No 3/2000 of 13 March 2000 in the Territorio Histórico of Guipúzcoa.

The facts in the main proceedings

17 When certain proceedings were initiated following complaints lodged in June 1996 and October 1997 in relation to the application, in the Territorio Histórico of Álava, of a tax credit of 45% to Daewoo Electronics Manufacturing España SA (Demesa) and to Ramondín SA and Ramondín Cápsulas SA (Ramondín), the Commission became aware of the existence of the provisions establishing that tax credit. The Commission so states in paragraph 1 of each of Commission Decision 2002/820/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45% of investments (OJ 2002 L 296, p. 1); Commission Decision 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45% of investments (OJ 2003 L 17, p. 1); and Commission Decision 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45% of investments (OJ 2002 L 314, p. 26) (together, ‘the contested decisions’). The Commission also received informal information that similar measures existed in the Territorios Históricos of Vizcaya and Guipúzcoa (paragraph 1 of Decisions 2003/27 and 2002/894).

18 On 17 March 1997, the Commission met representatives of the Government of La Rioja (Spain) and of management and labour in La Rioja.

19 By letters of 15 March 1999 sent to the Permanent Representation of the Kingdom of Spain, the Commission requested information on the measures adopted by the Territorios Históricos of Vizcaya and Guipúzcoa.

20 By letters of 13 April and 17 May 1999 from their Permanent Representation, the Spanish authorities asked for successive extensions of the period allowed to reply. By letter of 25 May 1999, the staff of the Commission refused to grant a second extension.

21 By letter of 2 June 1999 from their Permanent Representation, the Spanish authorities sent information on the tax credits at issue.

22 By letters of 17 August 1999, the Commission informed the Kingdom of Spain of its decision to initiate the formal investigation procedure in relation to the three schemes providing for the tax credits at issue. Those decisions to initiate the formal investigation procedure (Commission decisions concerning the tax credit provided for by legislation of the Territorios Históricos of Vizcaya and Guipúzcoa (OJ 1999 C 351, p. 29) and concerning the tax credit provided for by legislation of the Territorio Histórico of Álava (OJ 2000 C 71, p. 8)) were subject to actions for annulment which were dismissed by the Court (Joined Cases T-269/99, T-271/99 and T-272/99 Diputación Foral de Guipúzcoa and Others v Commission [2002] ECR II-4217).

23 In its decision to initiate the formal investigation procedure in relation to the tax credit provided for in the legislation of the Territorio Histórico of Álava, the Commission requested that the Kingdom of Spain provide, inter alia, information on any tax aid in the form of tax credits in force between 1986 and 1994, on decisions to grant aid between 1995 and 1997 and on declarations by the firms concerned on the official form for the period from 1998 to 1999. The Commission thereby requested details of at least the nature of the investment expenditure qualifying for aid, the amount of the tax credit granted to each beneficiary, the aid paid to each beneficiary and any balance which remained outstanding, whether any beneficiary might be a firm in difficulty within the meaning of the Community guidelines on State aid for rescuing and restructuring firms in difficulty, details of any cumulation of aid (amount, eligible expenditure, any aid schemes applied, and so forth) and precise and detailed definitions of the terms ‘investment’ and ‘investments made during the preparatory phase’.

24 By letter from their Permanent Representation of 9 November 1999, registered on 12 November 1999, the Spanish authorities submitted their comments, to the effect that there was no State aid involved, and that it was unnecessary to supply the information concerning decisions to grant the tax credits requested by the Commission in their decisions to initiate the formal investigation procedure.

25 Following publication of the decisions to initiate the formal investigation procedure in the Official Journal of the European Communities (see paragraph 22 above), the Commission received, in January 2000, comments from third parties in relation to the measures adopted by the Territorios Históricos of Vizcaya and Guipúzcoa, and in March and April 2000 in relation to the Territorio Histórico of Álava.

26 By letters of 1 March 2000 concerning the Territorios Históricos of Vizcaya and Guipúzcoa and by letter of 18 May 2000 in relation to the Territorio Histórico of Álava, the Commission sent those comments to the Kingdom of Spain and gave it the opportunity to comment on them. Although the Spanish authorities made a request for an extension of the period of 20 days allowed to reply, they did not send any comments.

The contested decisions

27 By the contested decisions, the Commission classified as State aid incompatible with the common market the 45% tax credits for investments, established by the Territorios Históricos of Álava, Vizcaya and Guipúzcoa.

28 In the contested decisions, first, the Commission holds that the tax credits at issue constitute State aid. The Commission states that, in effect, they provide to their beneficiaries an advantage consisting of a reduction of the charges normally borne from their budgets and imply a loss of tax revenue by the public authority concerned. That advantage affects competition and trade between Member States. The tax credits at issue are selective, in that they favour certain firms which make investments exceeding the threshold of ESP 2500 million. In the alternative, the tax credits are selective because, in addition, the tax authority had a discretionary power in relation to implementing the schemes in question and a discretion in determining the size of investments and the investment process, in the absence of any precise definitions of the concepts. The Commission states further that the tax credits pursue an economic policy objective which is not inherent in the tax system concerned and that they are not justified by the nature or overall structure of the Spanish tax system.

29 Secondly, the Commission finds that the tax credits constitute illegal aid. The Commission considers that the de minimis rule is not applicable and that existing aid is not involved. The Commission also rejects the argument that the principles of the protection of legitimate expectations and legal certainty were infringed, since the tax credits were new aid which was not notified and no specific assurance was considered to have been given by the Commission capable of creating justified expectations as to the legality and compatibility of the aid at issue.

30 Thirdly, the Commission considers that the aid schemes at issue are incompatible with the common market. The Commission maintains that the tax credits are capable of fulfilling, at least partly, the conditions laid down by the 1998 Guidelines (see paragraph 8 above), because, first, they are based on investment expenditure and, secondly, the amount does not exceed 45% of the amount invested. The tax credits cannot however qualify for one of the regional derogations in Article 87(3) EC. The Territorios Históricos of Álava, Vizcaya and Guipúzcoa are not eligible for the derogation in Article 87(3)(a) EC because their per capita GDP is too high. The aid at issue cannot either be authorised on the basis of Article 87(3)(c) EC, since the scale of the tax credits exceeds the ceilings specified in the successive regional aid maps. Further, the provisions at issue may apply to replacement investments and to expenditure linked to the ‘investment process’ or to ‘investments made during the preparatory phase’. However, in the absence of a precise definition of those terms, the possibility cannot be ruled out that the scope of the aid at issue includes expenditure which cannot be considered to be investment expenditure compatible with the relevant Community rules.

31 Moreover, aid for investment expenditure which does not meet the definition laid down by Community law might be considered to be operating aid, which as a general rule is prohibited. The Commission considers in that regard that the conditions of eligibility for the exceptions laid down in Article 87(3)(a) and (c) EC are not satisfied in the present case. The Commission also states that, in the absence of sectoral limitations, the 45% tax credits cannot comply with the sectoral rules. Lastly, the Commission states that the aid at issue also cannot qualify for other derogations provided for in Article 87(2) and (3) EC and that the aid is therefore incompatible with the common market.

32 Consequently, the Commission holds, in Article 1 of the contested decisions, that the Normas Forales at issue constitute State aid, unlawfully put into effect by the Kingdom of Spain in the provinces of Álava, Vizcaya and Guipúzcoa, and incompatible with the common market.

33 Article 2 of the contested decisions provides that the Kingdom of Spain is to abolish the aid scheme referred to in Article 1, if it is still in force.

34 Article 3 of the contested decisions requires recovery of the aid as follows: ‘1. [The Kingdom of] Spain shall take all necessary measures to recover from the recipients the aid referred to in Article 1, which has been unlawfully made available to them. As regards aid not yet paid, [the Kingdom of] Spain shall cancel all payments of outstanding aid. 2. Recovery shall be effected without delay in accordance with the procedures of national law, provided these allow the immediate and effective execution of this Decision. The sums to be recovered shall bear interest from the date on which they were available to the recipients until their actual recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.’

35 Article 4 of the contested decisions states that the Kingdom of Spain is to inform the Commission, within two months of the date of notification of the decisions, of the measures taken to comply with them. Article 5 of Decision 2002/820 states that it does not cover aid granted to Demesa and to Ramondín. Article 5 of Decisions 2003/27 and 2002/894 and Article 6 of Decision 2002/820 state that the contested decisions are addressed to the Kingdom of Spain.

36 Further to an action brought by the Commission, the Court of Justice held that the Kingdom of Spain had failed to fulfil its obligations by failing to adopt the measures required to comply with the contested decisions (Joined Cases C-485/03 to C-490/03 Commission v Spain [2006] ECR I-11887).

Procedure

37 By three applications lodged at the Registry of the Court of First Instance on 25 September 2001, the Territorios Históricos of Álava, Vizcaya and Guipúzcoa and the Comunidad autónoma del País Vasco — Gobierno Vasco brought the actions in Cases T-227/01 to T-229/01.

38 By applications lodged at the Court Registry on 22 October 2001, the Confederación Empresarial Vasca (Confebask) brought the actions in Cases T-265/01, T-266/01 and T-270/01.

39 By documents lodged at the Court Registry on 21 December 2001, the Comunidad autónoma de La Rioja applied for leave to intervene in the procedure relating to Cases T-227/01 to T-229/01 in support of the forms of order sought by the Commission.

40 By documents lodged at the Court Registry on 4 January 2002, the Círculo de Empresarios Vascos, the Cámara Oficial de Comercio e Industria de Álava and the Territorios Históricos of Vizcaya and Guipúzcoa applied for leave to intervene in the procedure relating to the action in Case T-227/01 in support of the forms of order sought by the applicants; the Círculo de Empresarios Vascos, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya and the Territorios Históricos of Álava and Guipúzcoa applied for leave to intervene in the procedure relating to the action in Case T-228/01 in support of the forms of order sought by the applicants; the Círculo de Empresarios Vascos, the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa and the Territorios Históricos of Álava and Vizcaya applied for leave to intervene in the procedure relating to the action in Case T-229/01 in support of the forms of order sought by the applicants.

41 By documents lodged at the Court Registry on 11 January 2002, Confebask applied for leave to intervene in the procedure relating to the actions in Cases T-227/01 to T-229/01 in support of the applicants.

42 By documents lodged at the Court Registry on 16 January 2002, the Comunidad autónoma de La Rioja applied for leave to intervene in the procedure relating to the actions in Cases T-265/01 to T-270/01 in support of the forms of order sought by the Commission.

43 By orders of 10 September 2002, the President of the Third Chamber (Extended Composition) of the Court of First Instance decided to stay proceedings in each of Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 until the Court of Justice had ruled on the appeals brought against the judgments of the Court of First Instance of 6 March 2002 in Joined Cases T-127/99, T-129/99 and T-148/99 Diputación Foral de Álava and Others v Commission [2002] ECR II-1275 (‘Demesa’) and in Joined Cases T-92/00 and T-103/00 Diputación Foral de Álava and Others v Commission [2002] ECR II-1385 (‘Ramondín’). In those two judgments, the Court of First Instance ruled on actions brought against two Commission decisions which classified as State aid incompatible with the common market the granting of tax advantages to Demesa and to Ramondín in the Territorio Historíco of Álava (Commission Decision 1999/718/EC of 24 February 1999 concerning State aid granted by Spain to Daewoo Electronics Manufacturing España SA (Demesa) (OJ 1999 L 292, p. 1) and Commission Decision 2000/795/EC of 22 December 1999 on the State aid implemented by Spain for Ramondín SA and Ramondín Cápsulas SA [Ramondín] (OJ 2000 L 318, p. 36)).

44 After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fifth Chamber and the present cases were then assigned to the Fifth Chamber, Extended Composition.

46 On 10 January 2005, as a measure of organisation of procedure, the Court of First Instance (Fifth Chamber, Extended Composition) raised with the parties the question of how the judgments in Demesa and Territorio Histórico de Álava v Commission and Ramondín and Others v Commission, paragraph 45 above, might affect the present actions.

47 By statement of 3 February 2005, the applicants commented on those judgments and said that they wanted the actions to proceed.

48 However, the Territorios Históricos of Álava, Vizcaya and Guipúzcoa and the Comunidad autonóma del País Vasco withdrew the first two pleas in law of their applications in Cases T-227/01 to T-229/01.

49 By orders of 9 September 2005, the President of the Fifth Chamber (Extended Composition) of the Court of First Instance allowed Confebask’s application to intervene in the procedure relating to the actions in Cases T-227/01 to T-229/01 in support of the applicants. The intervener lodged its statements, the applicants made no specific comments on them and the Commission lodged its observations within the time-limits allowed.

50 By orders of 9 and 10 January 2006, the President of the Fifth Chamber (Extended Composition) of the Court of First Instance allowed the application to intervene of the Comunidad autónoma de La Rioja in support of the Commission’s forms of order in the procedures relating respectively to Cases T-265/01, T-266/01 and T-270/01, on the one hand, and T-227/01 to T-229/01, on the other. The intervener lodged its statements. The applicant in Cases T-265/01, T-266/01 and T-270/01 lodged its observations. The applicants in Cases T-227/01 to T-229/01 said that they had no comments to make. The Commission lodged no observations.

51 By orders of 10 January 2006, the President of the Fifth Chamber (Extended Composition) of the Court of First Instance allowed the applications to intervene of the Cámara Oficial de Comercio e Industria de Álava, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, respectively in Cases T-227/01, T-228/01 and T-229/01, but rejected the applications to intervene of the Círculo de Empresarios Vascos and of the Territorios Históricos of Álava, Vizcaya and Guipúzcoa. The interveners lodged their statements. The applicants made no specific comments on them and the Commission lodged its observations within the time-limits allowed.

52 On 27 April 2006, the parties were called upon to submit their observations on the joinder of the actions in Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 for the purposes of the oral procedure and, possibly, for judgment. By order of the President of the Fifth Chamber (Extended Composition) of the Court of First Instance of 13 July 2006, those cases were joined for the purposes of the oral procedure, in accordance with Article 50 of the Rules of Procedure of the Court of First Instance.

53 On 14 February 2007, as a measure of organisation of procedure, the Court requested from the applicants, in each of Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01, certain information on the beneficiaries of the tax systems at issue.

54 By letter of 26 February 2007, Confebask requested a review of the measure of organisation of procedure. The response of the applicants in Cases T-227/01 to T-229/01, in a letter of 6 March 2007, was that they questioned the relevance of such a measure.

55 On 2 April 2007, the Court confirmed the measure of organisation of procedure of 14 February 2007 and called upon the applicants in each of Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 to provide the information requested. The applicants replied by letters of 23 April 2007.

56 On 31 July 2007, as a measure of organisation of procedure, the Court addressed questions to the parties, to which they replied in October 2007.

57 On hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 16 January 2008.

58 At that hearing, the Court required the parties to produce before 28 January 2008 certain information on the beneficiaries of the measures at issue. That was officially noted in the record of the hearing.

59 At the end of the hearing, the President of the Fifth Chamber (Extended Composition) decided to stay the close of the oral procedure.

60 By letters of 24 January 2008, as regards the Territorio Histórico of Vizcaya, and 28 January 2008, as regards the Territorios Históricos of Álava and Guipúzcoa, the applicants lodged documents concerning the information requested by the Court at the hearing. Confebask replied by letter of 29 January 2008. The Commission, after the period for doing so was extended by the Court, submitted its observations on the documents produced.

61 The President of the Fifth Chamber (Extended Composition) closed the oral procedure on 12 March 2008. The parties were informed by letters of 14 March 2008.

62 The Court considers, after hearing the parties’ observations, in accordance with Article 50 of the Rules of Procedure, that the actions in Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 should be joined for the purposes of judgment.

63 At the hearing, the applicants in Cases T-227/01 to T-229/01 renewed their request that the Court should call upon the Commission to produce certain documents. The Court considers however that it has sufficient information in the documents before it.

Forms of order sought by the parties

I — In Cases T-227/01 to T-229/01

64 The Territorios Históricos of Álava, Vizcaya and Guipúzcoa and the Comunidad autónoma del País Vasco, as applicants, claim that the Court should: — annul the contested decisions; — alternatively, annul Article 3 of the contested decisions; — order the Commission to pay the costs.

65 Confebask, intervener in support of the forms of order sought by the applicants in Cases T-227/01 to T-229/01, claims that the Court should: — annul the contested decisions; — order the Commission to pay the costs.

66 The Cámara Oficial de Comercio e Industria de Álava, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, interveners in support of the applicants in Cases T-227/01, T-228/01 and T-229/01 respectively, claim that the Court should: — annul the decisions respectively contested in each of those cases or, alternatively, annul their Article 3; — order the Commission to pay the costs.

67 The Commission and the Comunidad autónoma de La Rioja, intervener in its support, contend that the Court should: — dismiss the actions brought by the Territorios Históricos of Álava, Vizcaya and Guipúzcoa as unfounded; — declare the actions brought by the Comunidad autónoma del País Vasco to be inadmissible or, alternatively, dismiss them as unfounded; — order the applicants to pay the costs.

II — In Cases T-265/01, T-266/01 and T-270/01

68 Confebask, as applicant, claims that the Court should: — annul the contested decisions; — alternatively, annul Articles 3 and 4 of the contested decisions; — order the Commission to pay the costs.

69 The Commission and the Comunidad autónoma de La Rioja, intervener in its support, contend that the Court should: — declare the actions to be inadmissible; — alternatively, dismiss the actions as unfounded; — order the applicant to pay the costs.

Law

I — Admissibility of the actions

70 It is appropriate to examine the admissibility initially of the actions in Cases T-227/01 to T-229/01 and, thereafter, of the actions brought by Confebask in Cases T-265/01, T-266/01 and T-270/01.

A — Admissibility of the actions in Cases T-227/01 to T-229/01

71 It is appropriate to examine, first, the admissibility of the actions for annulment and, secondly, the admissibility of Confebask’s intervention in Cases T-227/01 to T-229/01.

1. Admissibility of the actions for annulment in Cases T-227/01 to T-229/01

(a) Arguments of the parties

72 The Commission, supported by the Comunidad autónoma de La Rioja, without making a formal objection of inadmissibility under Article 114(1) of the Rules of Procedure, considers that the Comunidad autónoma del País Vasco has no standing to bring proceedings for annulment in Cases T-227/01 to T-229/01. It cannot be inferred from the fact that it has ‘powers in the area of tax coordination and harmonisation in the Territorios Históricos’ that it is directly and individually concerned by the contested decisions. The aid schemes at issue were adopted solely by the Territorios Históricos of Álava, Vizcaya and Guipúzcoa. The Commission refers in that regard to paragraphs 54 and 55 of Demesa, paragraph 43 above.

73 The Commission accepts nevertheless that the abovementioned actions are admissible, to the extent that they were brought jointly with the Territorios Históricos of Álava, Vizcaya and Guipúzcoa, which do, according to the Commission, have standing to bring proceedings.

74 The applicants in Cases T-227/01 to T-229/01 claim that their actions are admissible.

(b) Findings of the Court

75 It is clear that the applicants, namely the Territorios Históricos of Álava, Vizcaya and Guipúzcoa and the Comunidad autónoma del País Vasco, are not persons to whom the contested decisions are addressed.

76 The admissibility of the actions brought by the Territorios Históricos of Álava, Vizcaya and Guipúzcoa is not in dispute. The contested decisions relate to aid schemes of which they themselves are the authors. Moreover, the contested decisions prevent the applicants from exercising, as they see fit, their own powers, which they enjoy directly under Spanish law (see, to that effect, Case T-214/95 Vlaams Gewest v Commission [1998] ECR II-717, paragraphs 29 and 30; Demesa, paragraph 43 above, paragraph 50; and Joined Cases T-346/99 to T-348/99 Diputación Foral de Álava and Others v Commission [2002] ECR II-4259, paragraph 37). The actions are therefore admissible as regards the Territorios Históricos of Álava, Vizcaya and Guipúzcoa.

77 Since one and the same application is involved in each of Cases T-227/01 to T-229/01, there is no need to examine whether the Comunidad autónoma del País Vasco is entitled to bring proceedings (see, to that effect, Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 31, and Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II-3141, paragraph 61).

78 It follows that the actions for annulment in Cases T-227/01 to T-229/01 are admissible.

2. Admissibility of Confebask’s intervention in Cases T-227/01 to T-229/01

(a) Confebask’s entitlement to intervene

79 In the course of the oral procedure, the Commission contended that, since the actions of the principal parties relate only to the recovery of the aid at issue and since no member of Confebask is affected by that recovery, Confebask is not entitled to intervene in the proceedings.

80 Further to questions put at the hearing, Confebask supplied a number of documents. Confebask produced a document, from the Director-General of Finance (Director General de Hacienda) of each of the three Territorios Históricos, certifying that a number of companies had benefited from the tax credits at issue. Those documents are evidence that those companies are concerned by the contested decisions and, in particular, by Article 3 of those decisions, which orders recovery of the aid. In addition, an affidavit, signed by the Secretary-General and the President of Confebask, certifies that each of those companies was a member of Confebask when the applications to intervene were lodged.

81 It must be observed that the orders of 9 September 2005 of the President of the Fifth Chamber (Extended Composition) of the Court of First Instance, by which Confebask was given leave to intervene in support of the forms of order sought by the applicants in Cases T-227/01 to T–229/01, do not preclude a fresh examination of the admissibility of its intervention in the final judgment (see, to that effect, Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 52).

82 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 thereof, the right to intervene is open to any person establishing an interest in the result of the case.

83 According to settled case-law, intervention by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members is allowed (orders of the President of the Court of Justice in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen [1997] ECR I-3491, paragraph 66, and in Case C-151/98 P Pharos v Commission [1998] ECR I-5441, paragraph 6; order of the President of the Fourth Chamber of the Court of First Instance of 19 April 2007 in Case T-24/06 MAAB v Commission (not published in the ECR), paragraph 10).

84 Moreover, it must be recalled that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (order in National Power and PowerGen, paragraph 83 above, paragraph 66, and order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [2004] ECR II-2977, paragraph 38).

85 In the present case, Confebask is a trade organisation which is a cross-sectoral confederation, set up to represent, coordinate, communicate and defend the general and common interests of businesses within its member organisations of the Basque Country in Spain. One of its purposes is to represent Basque businesses and to defend their interests before the authorities and before trade unions and professional bodies.

86 It is not in dispute that Confebask is an organisation which represents companies in the Basque Country in Spain.

87 Further, it must be stated that, as is clear from the documents produced during the oral procedure, a number of companies, which were members of Confebask when it lodged its application for leave to intervene, were the beneficiaries of aid granted in accordance with the tax systems at issue in the present case.

88 Consequently, the outcome of the present actions may affect the interests of those undertakings, which are both members of Confebask and actual beneficiaries of the tax measures at issue.

89 In addition, Confebask took part in the administrative procedure which led to the adoption of the contested decisions.

90 Accordingly, it is clear that Confebask has established that it has an interest in the outcome of the proceedings and that its intervention in support of the applicants is admissible.

(b) Admissibility of Confebask’s statements in intervention

Arguments of the parties

91 The Commission considers that Confebask’s statements in intervention in Cases T-227/01 to T-229/01 contain no legal argument, since they refer solely to annexes. The Commission concludes that those statements do not satisfy the requirements of Article 44 of the Rules of Procedure.

92 In the alternative, in the event that the Court rules that Confebask’s statements in intervention in Cases T-227/01 to T-229/01, taken as a whole, are admissible, the Commission claims that several pleas in law advanced by Confebask, as an intervener, are inadmissible, since they alter the nature of the dispute as defined by the applications in those cases.

Findings of the Court

93 The second subparagraph of Article 116(4) of the Rules of Procedure provides: ‘The statement in intervention shall contain: (a) a statement of the form of order sought by the intervener in support of or opposing, in whole or in part, the form of order sought by one of the parties; (b) the pleas in law and arguments relied on by the intervener; (c) where appropriate, the nature of any evidence offered.’

94 In accordance with settled case-law in relation to an application initiating proceedings, applicable by analogy in relation to a statement in intervention (Case T-171/02 Regione autónoma della Sardegna v Commission [2005] ECR II-2123, paragraph 186), the summary of the pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Court to give judgment in the action without the need to seek further information (see Case T-209/01 Honeywell v Commission [2005] ECR II-5527, paragraph 55, and case-law there cited).

95 Moreover, in order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Honeywell v Commission, paragraph 94 above, paragraph 56, and case-law there cited). In that regard, although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents, even those annexed to the application, cannot compensate for the lack of essential elements of legal arguments which, under the provision set out above, must be included in the application (order in Case T-154/98 Asia Motor France and Others v Commission [1999] ECR II-1703, paragraph 49). Furthermore, it is not for the Court of First Instance to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Honeywell v Commission, paragraph 94 above, paragraph 57, and Case T-167/04 Asklepios Kliniken v Commission [2007] ECR II-2379, paragraph 40, and case-law there cited; see also, to that effect, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraphs 97 to 99).

96 In the present case, in its statements in intervention lodged in Cases T-227/01 to T-229/01, Confebask states that it is intervening in support of the forms of order sought by the applicants in each of those cases. Confebask seeks the annulment of the contested decisions and an order that the Commission pay the costs. Confebask considers it appropriate, ‘in order to save the Court time and save translation resources’, to refer to the applications which it made respectively in Cases T-265/01, T-266/01 and T-270/01, and which are attached as annexes to its statements in intervention. In those statements, Confebask submits, moreover, observations on the infringement of the principle of the protection of legitimate expectations.

97 It is therefore clear that, with the exception of the argument on legitimate expectations, no essential material of fact and law, either substantially or even summarily, is to be found in the statements in intervention themselves.

98 Furthermore, although Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 may have been joined on 13 July 2006, which post-dates Confebask’s intervention, it remains the position that those cases do not lose their autonomy (see, to that effect, Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 66, and Honeywell v Commission, paragraph 94 above, paragraph 71).

99 Lastly, the Territorios Históricos of Álava, Vizcaya and Guipúzcoa and the Comunidad autónoma del País Vasco, as applicants in Cases T-227/01 to T-229/01, and the Cámara Oficial de Comercio e Industria de Álava, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa (together the ‘Cámaras Oficiales de Comercio e Industria’), as interveners in Cases T-227/01 to T-229/01, are not parties to the actions in Cases T-265/01, T-266/01 and T-270/01, to which Confebask refers. However, the requirement that the parties be identical is an essential condition for the admissibility of pleas purportedly raised by means of a reference to pleadings in another case (Honeywell v Commission, paragraph 94 above, paragraph 67).

100 In those circumstances, a general reference to other pleadings, even attached to the statements in intervention, cannot compensate for lack of essential elements of legal arguments which, in accordance with point (b) of the second subparagraph of Article 116(4) of the Rules of Procedure, must be included in the statement in intervention.

101 It follows that Confebask’s statements in intervention are inadmissible in so far as they refer to the applications in Cases T-265/01, T-266/01 and T-270/01 and are admissible in so far as they plead that the principle of the protection of legitimate expectations was infringed. There is therefore no need to adjudicate on the argument relied on in the alternative by the Commission, that several of Confebask’s pleas in law are inadmissible because they alter the nature of the dispute as defined in the applications.

B — Entitlement of Confebask to bring actions for annulment in Cases T-265/01, T-266/01 and T-270/01

1. Arguments of the parties

102 The Commission and the Comunidad autónoma de La Rioja, without making a formal objection of inadmissibility under Article 114 of the Rules of Procedure, contend that the actions brought by Confebask are inadmissible. According to them, an undertaking cannot bring an action against a decision declaring the incompatibility of an aid scheme the beneficiaries of which are not specified individually, but in general and abstract terms. Consequently, Confebask cannot rely on any standing to bring proceedings deriving from the fact that undertakings which it represents are directly and individually concerned by the contested decisions. Furthermore, Confebask does not claim to have any interest of its own. Lastly, the interests of procedural economy which explain the recognition of the right of associations to bring proceedings are met by Confebask’s intervention in Cases T-227/01 to T-229/01.

103 Confebask considers on the contrary that it does have standing to bring proceedings. Confebask states that it represents the interests of undertakings which themselves are entitled to bring proceedings, since they have tax liabilities under the tax systems in question and accordingly may have to repay aid received.

104 In reply to a question of the Court, Confebask declared at first that it had no information on whether some of its members were actual beneficiaries of the measures at issue. Confebask stated that it is the only spokesman, before the Spanish public authorities, of the Basque undertakings which it represents and which are the persons to whom the measures at issue are addressed. In any event, its standing to bring proceedings can be in no doubt, particularly when it actively participated throughout the procedure from the beginning of the process initiated by the Commission.

105 Following the hearing and the request, renewed for a third time, by the Court, as a result of which the oral procedure was extended, Confebask produced affidavits from the Director-General of Finance of each of the three Territorios Históricos certifying that certain undertakings, additionally certified to have been members of Confebask when the actions in Cases T-265/01, T-266/01 and T-270/01 were brought, were concerned by each of the contested decisions and in particular by the order to recover the tax credits at issue (see paragraph 80 above).

106 The Commission, in its comments on the documents produced by Confebask after the hearing, considers that Confebask has not proved that any order for recovery had been issued to the beneficiaries concerned.

2. Findings of the Court

107 As regards, in the present case, an action for annulment brought by an association, it must be borne in mind that, according to the case-law, the defence of general interests is not sufficient to establish the admissibility of such an action (see, to that effect, Joined Cases 16/62 and 17/62 Confédération nationale des producteurs de fruits et légumes and Others v Council [1962] ECR 471, 479 and Case 282/85 DEFI v Commission [1986] ECR 2469, paragraphs 16 to 18).

108 An association such as Confebask, which is responsible for defending the interests of Basque undertakings, is, as a rule, entitled to bring an action for annulment against a final decision of the Commission in matters of State aid only if the undertakings which it represents or some of those undertakings themselves have locus standi or if it can prove an interest of its own (see Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraph 56, and case-law there cited).

109 Those are the principles which govern assessment of whether Confebask is entitled to bring proceedings in the present case.

110 As regards whether the members of Confebask or the members of its affiliates have standing to bring proceedings in an individual capacity against the contested decisions, it is necessary to examine whether they are individually and directly concerned by the contested decisions, within the meaning of the fourth paragraph of Article 230 EC.

111 Natural or legal persons can claim to be individually concerned only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case 25/62 Plaumann v Commission [1963] ECR 95, 107, and Case C-298/00 P Italy v Commission [2004] ECR I-4087, paragraph 36, and case-law there cited).

112 In that regard, the potential beneficiaries of an aid scheme cannot, solely by virtue of that capacity, be regarded as individually concerned by the Commission decision declaring that scheme incompatible with the common market (see the order in Joined Cases T-228/00, T-229/00, T-242/00, T-243/00, T-245/00 to T-248/00, T-250/00, T-252/00, T-256/00 to T-259/00, T-265/00, T-267/00, T-268/00, T-271/00, T-274/00 to T-276/00, T-281/00, T-287/00 and T-296/00 Gruppo ormeggiatori del porto di Venezia and Others v Commission [2005] ECR II-787, paragraph 34, and case-law there cited).

113 However, an undertaking is in a different position if it is not only concerned by the decision at issue as an undertaking which is a potential beneficiary of the aid scheme in question, but also as an actual beneficiary of individual aid granted under that scheme, the recovery of which has been ordered by the Commission (see, to that effect, Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I-8855, paragraph 34, and Italy v Commission, paragraph 111 above, paragraphs 38 and 39).

114 In the present case, the documents submitted by Confebask following the hearing reveal that certain undertakings, which were among its members when the actions in Cases T-265/01, T-266/01 and T-270/01 were brought, were concerned by the tax measures at issue in each of the contested decisions, as actual beneficiaries of individual aid granted under the schemes at issue, the recovery of which has been ordered by the Commission. The affidavits from the Director-General of Finance of each of the Territorios Históricos of Álava, Vizcaya and Guipúzcoa refer to undertakings which benefited from the tax credit of 45% and are evidence that they were affected by the contested decisions.

115 Consequently, those undertakings must be regarded as individually concerned by the contested decisions. In that regard, since the conditions governing the admissibility of an action may be examined at any time by the Community judicature of its own motion, there is nothing to prevent the Court from taking into consideration additional information provided, in this case, during the oral procedure (see, to that effect, Case T-95/03 Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission [2006] ECR II-4739, paragraph 50).

116 As to whether the undertakings are directly concerned, the contested decisions oblige the Kingdom of Spain to take the measures necessary to recover from the beneficiaries the aid at issue. Consequently, the undertakings which received the aid must be regarded as directly concerned by those decisions (see, to that effect, Italy and Sardegna Lines v Commission, paragraph 113 above, paragraph 36, and Case T-136/05 Salvat père & fils and Others v Commission [2007] ECR II-4063, paragraph 75).

117 It follows that those undertakings, which were members of Confebask, would themselves have been regarded as having standing to bring proceedings.

118 Since Confebask represents undertakings some of which at least have standing to bring proceedings in an individual capacity, Confebask is entitled to bring proceedings against the contested decisions.

II — The substance of the actions

119 It is appropriate to examine the pleas in law alleging the absence of State aid, the compatibility of the schemes at issue with the common market, the misuse of powers by the Commission and whether the aid at issue is existing aid, as raised by Confebask, applicant in Cases T-265/01, T-266/01 and T-270/01, before examining, first, the plea in law alleging a procedural irregularity and infringement of the principles of legal certainty, good administration, the protection of legitimate expectations and equal treatment, raised both in Cases T-227/01 to T-229/01 and in Cases T-265/01, T-266/01 and T-270/01, and then the plea in law alleging infringement of the principle of proportionality, relied on by the applicants in Cases T-227/01 to T-229/01.

A — The plea in law alleging the absence of State aid within the meaning of Article 87 EC (Cases T-265/01, T-266/01 and T-270/01)

120 In its applications in Cases T-265/01, T-266/01 and T-270/01, Confebask first argues that the tax credits at issue did not entail any reduction in tax revenue. Secondly, Confebask claims that the Commission did not adequately demonstrate that the measures at issue affected intra-Community trade and caused distortion of competition. Thirdly, Confebask challenges the classification of the tax measures at issue. Fourthly, Confebask claims that the nature and overall structure of the tax system justified the tax credits at issue. Fifthly and lastly, Confebask argues that Article 87 EC is not applicable in the present case.

1. The first part, claiming that there was no reduction in tax revenue

(a) Arguments of the parties

121 Confebask claims that the Commission’s assertion, in the contested decisions, that the tax credits at issue would cause a reduction in tax revenue presupposes that there is a general tax rate, in the light of which any tax relief entails a loss of funds and, consequently, State aid. Confebask claims that such a rate does not exist and that the legislation of all Member States contains exemptions of some kind. Moreover, the aim of the disputed Normas Forales was to encourage investment. Accordingly, they generated revenue, since the sums invested were themselves taxed.

122 The Commission does not accept the validity of those arguments.

(b) Findings of the Court

123 Under Article 87(1) EC, any aid granted by Member States or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Member States, is incompatible with the common market.

124 The Court has consistently held that the concept of aid embraces not only positive benefits, such as subsidies, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (Case C-6/97 Italy v Commission [1999] ECR I-2981, paragraph 15).

125 A measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers constitutes State aid within the meaning of Article 87(1) EC (Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 14).

126 In the present case, it is sufficient to find that the tax credit of 45% at issue provides to the beneficiary firms a reduction in their tax burden by an amount equivalent to 45% of the eligible investment, as the Commission correctly stated in the contested decisions (paragraph 54 of Decision 2002/820; paragraph 62 of Decisions 2003/27 and 2002/894). In the absence of that tax credit, the firm has to pay its final tax liability in full. A firm which receives that tax credit is therefore placed in a financial position which is more favourable than that of other taxpayers.

127 Contrary to what is claimed by Confebask, the Commission was therefore correct to take the view that the tax credits at issue involved a loss of tax revenue.

128 In that regard, there is no evidence for Confebask’s assertion that the Commission based its reasoning on a general rate of taxation. On the contrary, it is clear from the contested decisions that the Commission made reference to the normal level of tax deriving from the tax system at issue (paragraph 56 of Decision 2002/820; paragraph 64 of Decisions 2003/27 and 2002/894).

129 Moreover, the fact that the tax laws of Member States contain many exemptions does not alter the nature of the measures at issue in relation to the rules on State aid.

130 Lastly, as regards the argument that the tax credits at issue were intended to encourage investment, with the objective of generating future revenue, it must be remembered that the objective pursued by a measure cannot enable it to escape classification as State aid within the meaning of Article 87(1) EC (Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 79, and Diputación Foral de Guipúzcoa and Others v Commission, paragraph 22 above, paragraph 63). Moreover, that argument cannot easily be reconciled with the granting of tax reductions (Ramondín, paragraph 43 above, paragraph 62, and Diputación Foral de Guipúzcoa and Others v Commission, paragraph 22 above, paragraph 64).

131 The first part of this plea in law, claiming that there was no reduction in tax revenue, must therefore be rejected as unfounded.

2. The second part, claiming that there was no distortion of competition and no effect on intra-Community trade, and that the statement of reasons was insufficient

(a) Arguments of the parties

132 First, Confebask claims that the statement of reasons for the contested decisions was insufficient, having regard to Article 253 EC, in relation to the affect on trade and the adverse effect on competition, and relies in particular on Italy and Sardegna Lines v Commission, paragraph 113 above, paragraph 66. The serious consequences attached to the contested decisions required a statement of reasons which was particularly rigorous. According to Confebask, the Commission is wrong to believe that the tax credits distort trade on the basis that their beneficiaries can take part in intra-Community trade, without any specific detail on that point. The Commission merely produced general data on exports and the external dependence of the Basque economy, but provided no market research concerning the economic sector which was disadvantaged.

133 Secondly, Confebask disputes, in any event, the merits of the Commission’s assessment of the effect on trade. Confebask claims that, while the overall tax burden may, in certain cases, influence the strategy of undertakings, that is not true of a merely temporary incentive, which is not a decisive factor in relation to the competitiveness of undertakings. To consider systematically that undertakings or sectors which are in receipt of any form of tax relief have a competitive advantage is accordingly indefensible. Further, according to some research, the influence of the tax incentives adopted by the Basque authorities was slight. That research demonstrates, moreover, that the tax burden in the Spanish Basque Country was higher than that in the rest of the Kingdom of Spain. Consequently, the criticised tax credits were not in themselves capable of affecting intra-Community trade. In addition, the tax burden is not the only factor influencing the economic behaviour of undertakings. It is also necessary to take account of factors such as legislation relating to trade, employment or social security. The influence of those measures was very much greater than that attributed by the Commission to the tax credits in question, and the Commission has not demonstrated how the provisions at issue are not like any other difference in Member States’ tax legislation.

134 The Commission does not accept the validity of those arguments.

(b) Findings of the Court

135 Under Article 87(1) EC, only State aid which ‘affects trade between Member States’ and which ‘distorts or threatens to distort competition’ is incompatible with the common market.

136 As regards the Commission’s obligation to state reasons for its decisions, it is settled case-law that the statement of reasons must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63, and Italy and Sardegna Lines v Commission, paragraph 113 above, paragraph 65).

137 In the present case, it is clear from paragraph 57 of Decision 2002/820 and from paragraph 65 of Decisions 2003/27 and 2002/894 that the Commission relied on reports published by the statistical office of the Basque Government and found that ‘the Basque economy [was] very open to the outside and its production [was] very much geared to exporting’ and that ‘given these characteristics of the Basque economy, it [might] be deduced that beneficiary firms [were] engaged in economic activities which [were] likely to include intra-Community trade’. The Commission concluded that, in those circumstances, the aid at issue strengthened the position of beneficiary firms vis-à-vis other firms which were their competitors in intra-Community trade and that such trade was thereby affected. The Commission adds that ‘the beneficiary firms’ profitability [was] improved by the increase in their net profit (profit after tax)’ and that ‘this enable[d] them to compete with firms which [were] not eligible for the tax credit, either because they ha[d] not invested, or because their investments ha[d] not reached the threshold of ESP 2500 million following the introduction of the 45% tax credit at issue’.

138 Such a statement of reasons discloses in a clear and unequivocal fashion the Commission’s reasoning on the effect of the tax credits on trade and competition. It enables the persons concerned to ascertain the reasons for the measures taken and enables the Court to exercise its power of review.

139 The contested decisions can, in that regard, be distinguished from the decision which was annulled by the Court of Justice in Italy and Sardegna Lines v Commission, paragraph 113 above, as relied on by Confebask. As was stated in paragraph 67 of that judgment, to conclude that competition was adversely affected, the Commission confined itself to the simple assertion that the aid was selective and restricted to shipping companies in Sardinia (Italy). It is clear from the foregoing that that is not the case in the contested decisions.

140 Moreover, the criticism cannot be made of the Commission that it did not submit any research concerning the economic sector which was disadvantaged, since the tax rules at issue apply across sectors and, in addition, the Spanish authorities did not answer the request for information made in the decisions to initiate the formal investigation procedures which led to the contested decisions.

141 Consequently, taking account of the circumstances of the present case, the contested decisions must be considered to contain a sufficient statement of the reasons why the Commission considers that the measures at issue distort or threaten to distort competition and affect intra-Community trade. Accordingly, the contested decisions meet the requirements of Article 253 EC in that respect.

142 As regards the merits of the Commission’s assessment, it must be recalled that, when the result of State aid or aid granted through State resources is that the position of an undertaking is strengthened compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by the aid, even if the beneficiary undertaking is itself not involved in exporting (see Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraph 47, and Case T-217/02 Ter Lembeek v Commission [2006] ECR II-4483, paragraph 181, and case-law there cited). Furthermore, the Commission is required not to establish that the measure has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether the measure is liable to affect such trade and distort competition (Case C-372/97 Italy v Commission [2004] ECR I-3679, paragraph 44).

143 Moreover, 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 (Case C-66/02 Italy v Commission [2005] ECR I-10901, paragraph 91; see, to that effect, Diputación Foral de Guipúzcoa and Others v Commission, paragraph 22 above, paragraph 68). In a case such as the present, where the tax systems at issue were not notified, it is not necessary for the reasoning on which the Commission decisions are based to contain an up-to-date assessment of the effect of the systems on competition and on trade between Member States (Belgium v Commission, paragraph 142 above, paragraph 48).

144 In the present case, as regards the condition relating to the effect on trade, as the Commission stated in the contested decisions (paragraph 57 of Decision 2002/820; paragraph 65 of Decisions 2003/27 and 2002/894), it can be deduced from the characteristics of the Basque economy that the beneficiary firms are engaged in economic activities which are likely to include trade between Member States.

145 In those circumstances, intra-Community trade is likely to be affected by the tax advantages at issue.

146 As regards, furthermore, the condition relating to distortion of competition, the tax credits, by reducing the costs of firms which receive them, improve the competitive position of the beneficiary firms vis-à-vis firms which are their competitors and which do not receive those advantages. The result is therefore a distortion of competition or, at the least, a likelihood of such distortion.

147 Consequently, the Commission was correct to find, in the present case, that the tax credits were such as to affect trade between Member States and to distort or threaten to distort competition.

148 That conclusion cannot be disturbed by the fact that those tax advantages are temporary, that their influence is small and not decisive, or even that they are not the only factor to be taken into account. There is no requirement in case-law that the distortion of competition, or the threat of such distortion, and the effect on intra-Community trade, must be significant or substantial (Case T-55/99 CETM v Commission [2000] ECR II-3207, paragraph 94).

149 Equally, in the absence of harmonisation at Community level, the argument that there are differences in the tax legislation of Member States has no relevance in relation to the classification of State aid.

150 It follows that the second part of this plea in law, claiming that there was no distortion of competition and no effect on intra-Community trade, and also that the statement of reasons for the contested decisions was insufficient, must be rejected as unfounded.

3. The third part, claiming that the tax measures are general

(a) Arguments of the parties

151 Confebask does not accept the Commission’s assessment that the provisions at issue confer a selective advantage. Confebask claims that the tax legislation at issue is general in application and that all economic traders can benefit from it. Similarly, the Normas Forales in question contain no regional specificity, since they apply to all undertakings based in the territorial jurisdiction of the Territorios Históricos of Álava, Vizcaya and Guipúzcoa and are designed merely to promote large investments. In that regard, Confebask considers that the Commission displays inconsistency by abandoning, in the contested decisions, the premiss that the measure was regionally specific, though that was referred to in the decisions to initiate the formal investigation procedure.

152 Confebask claims that the criterion of the minimum investment threshold, used by the Commission in the present case, has no counterpart in criteria applied in the past and is not referred to in the 1998 notice on tax aid to businesses (see paragraph 7 above), according to which, furthermore, tax measures ought not to be classified as State aid solely because some firms or some sectors are less affected than others (1998 notice on tax aid to businesses, paragraph 14).

153 Confebask refers also to the XXVIIIth Report on Competition Policy (paragraph 207), adopted by the Commission, according to which, in the case of taxation measures, it is necessary to distinguish between ‘the situation whereby the beneficiaries are certain undertakings or the production of certain goods, … and that whereby the measures in question have a cross-sectoral impact and are intended to favour the whole of the economy. In the latter case, there is no [S]tate aid within the meaning of Article 87(1) [EC], but a general measure’.

154 Confebask adds that tax systems frequently contain quantitative criteria and that the use of such a criterion in order to determine whether a tax measure is selective would mean that virtually all tax provisions in the Member States would require examination as possible State aid. Such monitoring would, according to Confebask, go beyond the provisions of the Treaty.

155 Furthermore, Confebask claims that the measures at issue are general measures, since the Diputaciones Forales have no discretion. According to Confebask, the tax credits are granted automatically and the authorities do no more than check whether the taxpayers satisfy the required conditions to qualify for them. Confebask adds that in the Spanish legal order arbitrary action by the authorities is prohibited. Moreover, Confebask claims that, by providing that the authorities are to determine the amount of the investment by deciding on the time-limits and restrictions applicable to the tax credit, the provisions at issue establish a ‘management device’ which makes it possible to check that the conditions required are satisfied, but do not grant any discretion to the Diputaciones.

156 Lastly, Confebask comments that legislation of general application can only establish State aid if it creates a ‘legislative framework which permits the granting [of aid] without any further procedure; in other words, if there is no discretion’. On the other hand, if, as is implied in the Commission’s position, the Normas Forales at issue were to be regarded as mere empowering measures, they could not be classified as State aid. In any event, the contested decisions are accordingly ‘devoid of content’.

157 The Commission, supported by the Comunidad autónoma de La Rioja, does not accept those arguments.

(b) Findings of the Court

158 It should be observed that the specific nature of a State measure, namely its selective application, constitutes one of the characteristics of State aid within the meaning of Article 87(1) EC. In that regard, it is necessary to determine whether or not the measure in question entails advantages accruing exclusively to certain undertakings or certain sectors of activity (CETM v Commission, paragraph 148 above, paragraph 39; see also, to that effect, Belgium v Commission, paragraph 142 above, paragraph 26).

159 In the present case, in the contested decisions, the Commission bases the selectivity of the provisions at issue on the minimum investment amount (ESP 2500 million) which restricts the tax credit’s application only to those firms capable of making such investments and, alternatively, on the discretionary power of the tax authorities (paragraphs 60 and 61 of Decision 2002/820; paragraphs 68 and 69 of Decisions 2003/27 and 2002/894; see paragraph 28 above).

160 First, Confebask cannot claim that the contested decisions are inconsistent, on the ground that the Commission is said to have abandoned the argument that because the measures at issue were regionally specific, allegedly referred to in the decisions to initiate the formal investigation procedure, the measures were therefore selective. In fact, those decisions were not based on the regional specificity of the schemes at issue and, consequently, this argument rests on a misreading of those decisions (see paragraph 22 above, and Diputación Foral de Guipúzcoa and Others v Commission, paragraph 22 above, paragraphs 19, 20 and 56).

161 It is clear, moreover, from the contested decisions (paragraph 60 of Decision 2002/820; paragraph 68 of Decisions 2003/27 and 2002/894) that only firms which make investments exceeding the threshold of ESP 2500 million (EUR 15025303), and do so after 1 January 1995 (Decision 2002/820) and after 1 January 1997 (Decisions 2003/27 and 2002/894), are eligible for the 45% tax credit at issue. All other firms, even when they invest, but do not exceed that threshold, are ineligible for the advantage at issue.

162 It is clear that, by restricting the application of the tax credit to investments in new fixed assets exceeding ESP 2500 million, the Basque authorities restricted the tax advantage in question to undertakings which have at their disposal significant financial resources. The Commission could therefore justifiably conclude that the tax credits provided in the Normas Forales at issue were designed to apply selectively to ‘certain undertakings’ within the meaning of Article 87(1) EC (Demesa, paragraph 43 above, paragraph 157, and Ramondín, paragraph 43 above, paragraph 39).

163 Furthermore, the fact that tax systems frequently contain quantitative criteria does not allow the conclusion that the provisions at issue in the present case, by establishing a tax advantage favouring undertakings with significant financial resources at their disposal, were outside the scope of Article 87(1) EC (see, to that effect, Ramondín, paragraph 43 above, paragraph 40).

164 The arguments based on the 1998 notice on tax aid to businesses do not allow the conclusion that the measures at issue are general. That notice provides that general measures do not constitute State aid, even if certain undertakings or certain sectors benefit from them more than others. In the present case, however, the measures at issue are not general, since, as was stated earlier (see paragraph 162 above), only certain undertakings are eligible.

165 Furthermore, the schemes at issue in the present case, although cross-sectoral in nature, restrict the advantages to certain undertakings which are subject to the Basque tax systems. They cannot therefore be considered as intended to benefit the entire economy, in the sense meant by the Commission in the XXVIIIth Report on Competition Policy, relied on by Confebask (see paragraph 153 above), and, accordingly, they must be classified as selective measures.

166 It follows from the foregoing that the tax credits at issue constitute a selective advantage ‘favouring certain undertakings’, within the meaning of Article 87(1) EC.

167 Such a finding is, in itself, sufficient to show that the tax credits at issue fulfil the condition of specificity which is one of the characteristics of the definition of State aid. Consequently, it is no longer necessary to examine whether the selective nature of the measures at issue is or is not also the result of the authority’s discretionary power in implementation of those measures (see, to that effect, Case C-501/00 Spain v Commission [2004] ECR I-6717, paragraphs 120 and 121, and Demesa, paragraph 43 above, paragraph 160), particularly when that criterion, whether or not the authority has a discretionary power, is, in the present case, only used by the Commission as an alternative (paragraph 61 of Decision 2002/820; paragraph 69 of Decisions 2003/27 and 2002/894).

168 In any event, as regards whether or not the power of the Diputaciones Forales is discretionary in the present case, it must be recalled that Confebask’s arguments in that regard have already been rejected by the Court in relation to the 45% tax credit provided for by the Sixth Additional Provision of Norma Foral No 22/1994 of Álava, at issue in Demesa, paragraph 43 above, paragraphs 150 to 154, and Ramondín, paragraph 43 above, paragraphs 32 to 35. The Court held that the legislation granted to the authorities a discretion, enabling them inter alia to vary the amount of the tax concessions at issue or the eligibility conditions according to the characteristics of the investment projects submitted for their assessment.

169 As regards the amendments made to the Sixth Additional Provision of Norma Foral No 22/1994 of Álava, which was at issue in Demesa and Ramondín, paragraph 43 above, for 1998 and 1999 (see paragraph 13 above), those amendments introduce the concept of ‘investment process’, which can include those investments ‘made during the preparatory phase of the project which generates the investments and with a necessary, direct link to that process’. However, it is clear that those concepts are not defined, with the result that the discretion of the authorities is unaffected.

170 As regards the tax credits applicable in the Territorios Históricos of Vizcaya and Guipúzcoa, it is clear from the provisions at issue (see paragraph 15 above) that the Diputaciones Forales have a discretion, inter alia in relation to the amount to which the 45% tax credit is applicable, the length of the investment process and the scope of the concept of investment eligible for tax credits. Further, there has been no challenge to the Commission’s finding (paragraph 69 of Decisions 2003/27 and 2002/894) that the concepts of ‘investment process’ and ‘preparatory phase of the investment’ are not defined, and consequently the Commission could correctly conclude that the regional authorities had a discretion in the matter.

171 Lastly, as the Commission stated in its pleadings, in order to preclude characterisation as a general measure, it is not necessary to determine whether the conduct of the tax authority is arbitrary. It is enough to establish, as was done in this case, that the authority has a discretionary power (Demesa, paragraph 43 above, paragraph 154).

172 As regards, finally, the argument that, if it is accepted that the authorities have a discretionary power, the measures at issue must be regarded as merely empowering and not subject to the requirement to notify, it must also be rejected. The provisions at issue set out the conditions for the granting of the tax credits in detail and therefore were correctly considered by the Commission to be aid schemes which required to be notified.

173 It follows from the foregoing that the measures at issue are selective measures.

4. The fourth part, claiming that the tax measures were justified by the nature and overall structure of the tax system

(a) Arguments of the parties

174 Confebask claims that the Territorios Históricos of Álava, Vizcaya and Guipúzcoa autonomously determine their tax systems according to the economic policies adopted by democratically elected representative bodies. The tax provisions at issue therefore constitute an instrument of fiscal policy and economic organisation stemming from the State’s political and economic choices, which cannot be reviewed at Community level.

175 Confebask further claims that the tax provisions at issue are objective and horizontal and have a beneficial effect on employment and investment, fully compatible with the nature and overall structure of the tax systems at issue.

176 Lastly, the establishment of tax advantages according to certain minimum investment thresholds corresponds to the objective of the provisions at issue. That objective is to collect revenue from the activities of the undertakings, while ensuring the promotion of their development, in order to maintain their taxpaying capacity. In that perspective, it is logical that the contested tax measures do not treat small investments and large investments alike.

177 The Commission, supported by the Comunidad autónoma de La Rioja, does not accept that these arguments are well founded.

(b) Findings of the Court

178 The Court observes first of all that the fact that the Territorios Históricos have autonomy in taxation matters which is recognised and protected by the Spanish Constitution does not exempt them from complying with the provisions of the Treaty concerning State aid. In that regard, Article 87(1) EC, by referring to aid granted by ‘a Member State or through State resources in any form whatsoever’ is directed at all aid financed from public resources. It follows that measures adopted by intra-State entities (decentralised, federated, regional or other) of the Member States, whatever their legal status and description, fall, in the same way as measures taken by the federal or central authority, within the ambit of Article 87(1) EC, if the conditions of that provision are satisfied (Case 248/84 Germany v Commission [1987] ECR 4013, paragraph 17, and Ramondín, paragraph 43 above, paragraph 57).

179 Next, it must be recalled that the justification of the measures at issue ‘by the nature or overall structure of the system’ refers to the consistency of a specific tax measure with the internal logic of the tax system in general (see, to that effect, Belgium v Commission, paragraph 142 above, paragraph 39). Thus, a specific tax measure which is justified by the internal logic of the tax system — such as the progressiveness of the tax which is justified by the system’s aim of redistribution — will be outside the scope of Article 87(1) EC (Demesa, paragraph 43 above, paragraph 164).

180 In the present case, Confebask claims that the tax measures at issue are based on objective criteria and are horizontal. However, as stated previously (see paragraphs 158 to 166 above), the measures at issue remain selective and those arguments do not permit the conclusion that they are measures justified by the internal logic of the tax system concerned.

181 Next, Confebask asserts that the establishment of a minimum investment threshold corresponds to the objective of the provisions at issue, namely to encourage investment in the three Territorios Históricos and to maintain the taxpaying capacity of businesses.

182 However, to restrict entitlement to aid to a limited category of businesses is not symptomatic of a general intention to encourage investment.

183 Further, Confebask’s claim does no more than refer to general objectives of economic policy which are extraneous to the tax system concerned.

184 However, the objective pursued by the measures at issue cannot prevent their classification as State aid within the meaning of Article 87(1) EC. If that argument were accepted, it would be sufficient for public authorities to rely on the legitimacy of the objectives pursued by the adoption of an aid measure for the measure to be regarded as a general measure, outside the scope of Article 87(1) EC. However, that provision does not distinguish between measures of State intervention by reference to their causes or aims but defines them in relation to their effects (Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 20, and CETM v Commission, paragraph 148 above, paragraph 53).

185 Accordingly, the specific tax measures at issue cannot be regarded as being justified by the nature or overall structure of the tax system taken into consideration by the Commission.

186 Consequently, the Commission was correct to hold in the contested decisions that the tax credits corresponding to 45% of the amount of the investment were State aid within the meaning of Article 87(1) EC.

5. The complaint that Article 87 EC is not applicable to the measures at issue

187 In its response of 3 February 2005 to questions put by the Court in Cases T-265/01, T-266/01 and T-270/01 (see paragraph 47 above), Confebask comments that, in the cases which led to the judgments of the Court of Justice of 11 November 2004 in Demesa and Territorio Histórico de Álava v Commission and in Ramondín and Others v Commission, paragraph 45 above, the applicants had claimed that a tax measure, adopted prior to the resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council, of 1 December 1997 [the Ecofin Council meeting] on a code of conduct for business taxation (OJ 1998 C 2, p. 2), and prior to the 1998 notice on tax aid to businesses, was excluded from the review of State aid. In Confebask’s opinion, that complaint, which was rejected by the Court of Justice as being new and therefore inadmissible, should be upheld.

188 The Court of First Instance holds that such a complaint, raised in a reply to questions put by the Court, must be rejected as inadmissible under the first subparagraph of Article 48(2) of the Rules of Procedure. It is, in fact, a new plea in law introduced in the course of proceedings, which is not based on matters of law or of fact which have come to light in the course of the procedure.

189 It is true that a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9, and Case C-301/97 Netherlands v Council [2001] ECR I-8853, paragraph 169).

190 However, even if the complaint that Article 87 EC is not applicable to the measures at issue can be regarded as an amplification of the plea in law, based on the absence of State aid within the meaning of Article 87 EC, examined in paragraphs 120 to 186 above, it is clear that the complaint must in any event be rejected as inadmissible.

191 It must be recalled that, in accordance with Article 44(1)(c) of the Rules of Procedure, an application must, inter alia, contain the subject-matter of the dispute and a brief statement of the grounds on which the application is based. It is settled case-law that those indications must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T-106/95 FFSA and Others v Commission [1997] ECR II-229, paragraph 124; the order in Asia Motor France and Others v Commission, paragraph 95 above, paragraph 49; and the judgment of 19 July 2007 in Case T-360/04 FG Marine v Commission (not published in the ECR), paragraph 33, and case-law there cited).

192 However, in the present case, the alleged complaint is not at all made explicit. Confebask does no more than subscribe to the arguments which were submitted, in that regard, before the Court of Justice by the applicants in the cases which led to Demesa and Territorio Histórico de Álava v Commission and Ramondín and Others v Commission, paragraph 45 above.

193 Accordingly, the complaint that Article 87 EC is not applicable to the measures at issue must be rejected as inadmissible.

194 Consequently, the plea in law alleging the absence of State aid must be rejected in its entirety.

B — The plea in law claiming that the Normas Forales are compatible with the common market (Cases T-265/01, T-266/01 and T-270/01)

1. Arguments of the parties

195 First, Confebask claims that in the contested decisions the Commission considers that the provisions at issue are incompatible with the common market because they fail expressly to take into consideration Community provisions relating to sectoral aid, regional aid or other forms of aid. Confebask concludes that, to comply with State aid rules, unless national regulations adjusting the tax burden specify the undertakings to which they do not apply, they will be incompatible with the common market. However, Confebask claims that tax law should not contain that kind of specification. In any event, Confebask considers that the Commission should have clearly explained in what way the aid was incompatible with the common market, even when such specification was lacking.

196 Secondly, Confebask criticises the Commission for having concluded that the Normas Forales were incompatible with the 1998 Guidelines (see paragraph 8 above), after an examination which was strictly formal and abstract, without carrying out any concrete examination, even though the 1998 Guidelines had no binding legal effect and could not therefore, in the absence of a thorough analysis, be the basis of a finding that aid was incompatible.

197 The Commission, supported by the Comunidad autónoma de La Rioja, contends that that plea in law should be rejected as unfounded.

2. Findings of the Court

198 It must be recalled that the Commission has wide discretion in matters falling under Article 87(3) EC (Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 56; Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 36; and Case T-198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II-2717, paragraph 148). Judicial review must therefore be limited to establishing whether there has been compliance with the rules governing procedure and the statement of reasons, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers. The Court is not entitled to substitute its own economic assessment for that of the Commission (see Technische Glaswerke Ilmenau v Commission, paragraph 148, and case-law there cited).

199 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 (Italy v Commission, paragraph 143 above, paragraph 91; see, to that effect, Diputación Foral de Guipúzcoa and Others v Commission, paragraph 22 above, paragraph 68).

200 It can be observed that under the pretext of alleging an infringement of Article 87(3) EC, Confebask’s criticism of the Commission is, in essence, that the statement of reasons in the contested decisions is insufficient.

201 It is clear from the contested decisions (paragraphs 77 to 93 of Decision 2002/820; paragraphs 84 to 99 of Decisions 2003/27 and 2002/894) that the Commission examined the compatibility of the aid schemes at issue with regard to the derogations laid down in Article 87(3)(a) and (c) EC in the light of the Community rules on regional aid (paragraphs 77, 78 and 86 of Decision 2002/820; paragraphs 84, 85 and 92 of Decisions 2003/27 and 2002/894, which refer to the Commission communication on the method for the application of Article [87](3)(a) and (c) [EC] to regional aid (OJ 1988 C 212, p. 2) and to the 1998 Guidelines (see paragraph 8 above)); on investment aid (paragraphs 82, 89 and 92 of Decision 2002/820; paragraphs 88, 95 and 98 of Decisions 2003/27 and 2002/894, which refer to the first Council resolution of 20 October 1971 of Representatives of the Governments of the Member States, meeting within the Council, on general regional aid schemes (OJ, English Special Edition Series II, Volume IX, p. 57), to the Commission communication on regional aid systems (OJ 1979 C 31, p. 9) and to the Commission notice entitled ‘Multisectoral framework on regional aid for large investment projects’