Appeal brought on 3 December 2020 by Lico Leasing, S.A.U and Pequeños y Medianos Astilleros Sociedad de Reconversión, S.A. against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 23 September 2020 in Joined Case T-515/13 RENV and T-719/13 RENV Kingdom of Spain and Others v Commission

(Case C-658/20 P)

(2021/C 110/14)

Language of the case: Spanish

Parties

Appellants: Lico Leasing, S.A.U and Pequeños y Medianos Astilleros Sociedad de Reconversión, S.A. (represented by: J.M. Rodríguez Cárcamo and M.A. Sánchez, lawyers)

Other parties to the proceedings: European Commission, Bankia, S.A. and Others and Aluminios Cortizo, S.A.

Form of order sought

Lico Leasing, S.A.U., Establecimiento Financiero de Crédito (‘LICO’) and Pequeños y Medianos Astilleros Sociedad de Reconversión, S.A (‘PYMAR’) respectfully request the Court of Justice to:

— set aside in its entirety the judgment of the General Court of 23 September 2020, Spain and Others v Commission (T-515/13 RENV and T-719/13 RENV, EU:T:2020:434);

— annul Commission Decision 2014/200/EU of 17 July 2013 on the aid scheme SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain, Tax scheme applicable to certain finance lease agreements also known as the Spanish Tax Lease System (OJ L 114, 16.4.2014, p. 1) or, alternatively, annul the order to recover the aid; and

— order the European Commission to pay the costs incurred by LICO and PYMAR in relation to the present appeal and the costs incurred by LICO and PYMAR in relation to the proceedings following referral (T-719/13 RENV), the appeal (C-128/16 P) and in the initial proceedings at first instance (T-719/13).

Pleas in law and main arguments

FIRST GROUND OF APPEAL: SUBSTANTIVE ERRORS, ERRORS IN THE CLASSIFICATION OF THE FACTS AND ERRORS IN THE STATEMENT OF REASONS FOR APPLICATION OF ARTICLE 107(1) TFEU

LICO and PYMAR claim that the General Court has made the following errors of law, substantive errors and errors in the classification of the facts and in the statement of reasons, in the interpretation of Article 107(1) TFEU:

(i) Error of law in the verification of the reference system in so far as the Commission did not identify, in the decision or before the General Court, what is the reference system of ‘the Spanish Tax Lease System’ (‘the STL system’), neither as a whole, nor as regards each one of its individual measures.

(ii) Errors of law in the legal classification of the administrative authorisation for accelerated depreciation: (a) error in considering that the existence of an authorisation procedure necessarily means that the measure is selective, without the need to carry out the three-stage examination resulting from the case-law of the General Court, (b) error in the classification of the authorisation for accelerated depreciation as a discretionary power that enables the achievement of objectives outside the tax system and (c) error in the assessment to the effect that the selectivity of a single one of the measures which made it possible to benefit from the STL system as a whole (the authorisation for accelerated depreciation) meant that the system was selective as a whole.

(iii) Failure to state reasons with regard to the comparison of the factual and legal situations of the companies affected by the measure at issue.

SECOND GROUND OF APPEAL: DISTORTION OF THE CLEAR SENSE OF THE FACTS AND ERROR IN THE CLASSIFICATION OF THE FACTS RELATING TO THE LETTER FROM THE COMMISSIONER RESPONSIBLE FOR DG ‘COMPETITION’ REGARDING THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS

LICO and PYMAR claim that the General Court distorted the clear sense of the content of the letter from the Commissioner responsible for DG ‘Competition’ and incorrectly classified its content in finding that the letter did not offer concrete, unconditional and consistent guarantees that could give rise to legitimate expectations.

THIRD GROUND OF APPEAL: ERROR IN THE CLASSIFICATION OF THE FACTS IN THE APPLICATION AND INTERPRETATION OF THE PRINCIPLE OF LEGAL CERTAINTY

LICO and PYMAR claim that, even if it were to be held that the General Court did not distort the clear sense of the content of the letter from the Commissioner responsible for DG ‘Competition’ for the purposes of applying the principle of legitimate expectations, the General Court, when examining the plea relating to the principle of legal certainty, erred in its classification of that fact and the decision on the French tax Economic Interest Groupings (‘EIGs’), which led it to misinterpret and misapply the principle of legal certainty.

FOURTH GROUND OF APPEAL: ERROR OF LAW IN RELATION TO THE PRINCIPLES APPLICABLE TO THE RECOVERY OF AID

LICO and PYMAR claim that the General Court made an error of law in relation to the principles applicable to the recovery of aid (i) because the fact that the shipping companies were not regarded as beneficiaries of the aid does not mean that the EIGs and the investors actually received all of the aid, since it is common ground that that was not the case and (ii) because, in order to determine the existence of State aid, it is not the method used that must be taken into account, but rather the effects of the measure, Likewise, as regards recovery, account should be taken of the effects and not the method used. Accordingly, it is not reasonable that in the French case the amounts transferred to users were discounted yet such amounts are not discounted in the Spanish case, even though the practical effects in both cases are identical.