Case T‑826/14 R

Kingdom of Spain

v

European Commission

‛Application for interim measures — State aid — Corporation tax scheme allowing undertakings whose tax domicile is in Spain to amortise the financial goodwill deriving from the acquisition of indirect shareholdings in undertakings whose tax domicile is abroad — Decision declaring the aid incompatible with the internal market and ordering its recovery — Application for suspension of operation of a measure — Prima facie case — No urgency’

Summary — Order of the President of the General Court, 27 February 2015

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Purely hypothetical damage based on the occurrence of future and uncertain events — Not sufficient to demonstrate urgency — Decision on State aid having a close link to earlier decisions annulled by the General Court — Commission dispensing from the obligation to recover those aids before the final decision of the Court of Justice — No urgency

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Harm that can be pleaded by a Member State — Obligation to establish that, without the interim measure, State functions, public order or an entire sector of the economy would be seriously affected

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Action against a Commission decision declaring a State aid incompatible with the internal market and ordering its recovery — Existence of a close link with earlier decisions annulled by the General Court — Very high probability of success of the main action — Particularly strong prima facie case

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court hearing the application for interim relief

See the text of the decision. (see paras 12-14)

In order to satisfy the condition that there be a prima facie case, it may be sufficient to note that there is a close link between, on the one hand, the decision in respect of which suspension of operation is being sought and, on the other, earlier decisions annulled by the General Court. In that regard, in the matter of State aid, the prima facie case appears to be particularly strong in a case where the decision of which suspension of operation is sought is based on the premise that a new tax measure is of a selective nature for the same reasons as those relied on by the Commission in earlier decisions in order to classify the initial tax regime as illegal and incompatible with the internal market, the General Court having annulled those decisions on account of the Commission’s failure to establish that the said regime was selective, even after a close examination in both fact and law. In such a case, the probability of success of the action to which the interim application concerning the alleged new aid relates must be regarded as very high. (see paras 17, 18, 20, 21)

In the context of interim proceedings, in so far as the conditions prescribed for the grant of an interim measure are interdependent, the more or less compelling nature of a prima facie case does not fail to have an impact on the assessment of urgency. Thus, it is all the more necessary for any urgency which an applicant may plead to be taken into consideration by the court hearing interim applications where the latter has described the prima facie case as particularly strong. The fact nevertheless remains that, pursuant to Article 104(2) of the Rules of Procedure, the conditions relating to a prima facie case and concerning urgency are distinct and cumulative, so that the applicant remains under an obligation to demonstrate the imminence of serious and irreparable harm. It follows that, with the exception of the specific dispute concerning the award of public contracts, a prima facie case, however strong, cannot make up for the lack of urgency. (see paras 22, 23)

See the text of the decision. (see paras 25, 26, 31, 48, 49)