JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

4 February 2016 ( *1 )

‛State aid — German tax legislation concerning loss carry-forward to future tax years (Sanierungsklausel) — Decision declaring the aid incompatible with the internal market — Action for annulment — Individual concern — Admissibility — Concept of State aid — Selectivity — Nature and general scheme of the tax system’

In Case T‑287/11,

Heitkamp BauHolding GmbH, established in Herne (Germany), represented initially by W. Niemann, M. Kiera-Nöllen and S. Geringhoff, and subsequently by W. Niemann, S. Geringhoff et P. Dodos, lawyers,

applicant,

supported by

Federal Republic of Germany, represented by T. Henze and K. Petersen, acting as Agents,

intervener,

v

European Commission, represented initially by R. Lyal, T. Maxian Rusche and M. Adam, and subsequently by R. Lyal, T. Maxian Rusche and C. Egerer, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (OJ 2011 L 235, p. 26),

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz and A. Popescu (Rapporteur), Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 8 July 2015,

gives the following

Judgment

National legal framework

The rule governing loss carry-forward

1 In Germany, pursuant to Paragraph 10d(2) of the Einkommensteuergesetz (Law on income tax), losses made in the course of a tax year may be carried forward to later tax years, which means that the losses in question may be subtracted from the taxable income of the following years (‘the loss carry-forward rule’).

2 Pursuant to Paragraph 8(1) of the Körperschaftsteuergesetz (Law on corporation tax; ‘the KStG’), the loss carry-forward rule applies also to undertakings subject to corporation tax.

The rule governing the forfeiture of losses

3 The possibility of carrying losses forward led to the acquisition, for the sole purpose of reducing tax liabilities, of ‘empty-shell companies’, that is to say, companies which had long ceased any economic activity but which still retained losses that had been carried forward (‘Mantelkauf’ transactions).

4 In order to counteract the acquisition of empty-shell companies, the German legislature introduced in 1997 Paragraph 8(4) of the KStG (‘the former rule governing the forfeiture of losses’). That rule restricted the carrying-forward of losses to those corporate entities that were legally and economically identical to the entity that had incurred losses. Under that provision, corporate entities were not considered to be identical if more than half of the shares in a corporate entity had been transferred and the corporate entity then continued its economic activity or started it again with predominantly new assets.

5 The former rule governing the forfeiture of losses nonetheless provided for an exception, set out in the third sentence of Paragraph 8(4) of the KStG, pursuant to which corporate entities were considered to be economically identical, with the result that the losses were not forfeited in the event that the corporate entity being acquired was ‘restructured’. This might occur in two cases: first, where the injection of new assets was solely for the purpose of restructuring the loss-making entity and if the activity which gave rise to the unrelieved loss carry-forward continued on a comparable scale for five years; secondly, where, rather than injecting new assets, the acquiring entity covered the losses that had accrued at the loss-making entity.

6 In 2008, the Unternehmensteuerreformgesetz (Law on Business Taxation Reform) repealed the former rule governing the forfeiture of losses and inserted a new Paragraph 8c(1) into the KStG (‘the rule governing the forfeiture of losses’). That provision restricts the possibility of carrying losses forward in the event that 25% or more of the shares in a company are acquired (‘the prejudicial acquisition of a shareholding’). More specifically, the new provision provides, first, that if, within a period of five years, between 25% and 50% of the share capital, membership rights, ownership rights or voting rights are transferred, unused losses are forfeited on a pro rata basis and, secondly, that unused losses are forfeited if more than 50% of the share capital, membership rights, ownership rights or voting rights are transferred to an acquirer.

7 Initially, the new rule governing the forfeiture of losses did not provide for any exceptions. However, the tax authorities could, in the case of the prejudicial acquisition of a shareholding relating to the restructuring of an undertaking in difficulty, grant tax exemptions based on considerations of equity, pursuant to the decree on restructuring of 27 March 2003 issued by the German Federal Ministry of Finance (‘the decree on restructuring’).

The restructuring clause

8 In September 2007, the German Government submitted to the Bundestag (lower house of the Federal Parliament) a draft law, referred to as the ‘MoRaKG Law’, relating to the modernisation of the general conditions for capital investments, which provided inter alia for a derogation from the rule governing the forfeiture of losses.

9 Following the notification of the draft law at issue in accordance with Article 108(3) TFEU, the European Commission, by Decision 2010/13/EC of 30 September 2009 on aid scheme No C 2/09 (ex N 221/08 and N 413/08) which Germany intends to grant to modernise the general conditions for capital investments (OJ 2010 L 6, p. 32), prohibited the derogation contemplated by classifying it as State aid incompatible with the internal market.

10 In June 2009, the Bürgerentlastungsgesetz Krankenversicherung (Law on Citizens’ Relief — Health Insurance Fund) introduced Paragraph 8c(1a) of the KStG (‘the restructuring clause’ or ‘the measure at issue’), under which the carry-forward of losses continues to be possible where a company in difficulty is acquired for the purpose of restructuring. Pursuant to that clause, a corporate entity may carry losses forward also in the case of the prejudicial acquisition of a shareholding, provided that the following conditions are met: (a) the acquisition serves the purpose of restructuring the corporate entity; (b) the company is, or is likely to be, insolvent or over-indebted at the time of the acquisition; (c) the company’s fundamental business structures are preserved, which requires: — the corporate entity to honour an agreement between management and works council on the preservation of jobs, — preservation of 80% of the jobs (in terms of the average annual wage bill) for the first five years following the acquisition, or — injections of significant business assets or write-off of debts which still have an economic value within 12 months of the acquisition; business assets are significant if they represent at least 25% of the assets of the previous financial year; any transfer back to the acquiring entity within the first three years is deducted from the value of the new operating capital; (d) the company does not change its sector of activity during the five years following the acquisition; (e) the company had not ceased operation at the time of the acquisition.

11 The restructuring clause entered into force on 10 July 2009, and applies retroactively from 1 January 2008, which is the same date as that on which the rule governing the forfeiture of losses entered into force.

Clauses governing hidden reserves and groups of undertakings

12 In December 2009, the Wachstumsbeschleunigungsgesetz (Law on Economic Growth Acceleration) introduced, with effect from 1 January 2010, two new exceptions to the rule governing the forfeiture of losses, namely, first, the fifth sentence of Paragraph 8c(1) of the KStG (‘the clause governing groups of undertakings’) and, secondly, the sixth sentence of Paragraph 8c(1) of the KStG (‘the clause governing hidden reserves’).

13 The clause governing groups of undertakings provides that the carry-forward of losses is to be maintained for all restructurings carried out exclusively within a group of undertakings at the head of which is a single individual or company holding 100% of the shares.

14 The clause governing hidden reserves provides that the carry-forward of losses is to be maintained in so far as, at the time of the prejudicial acquisition of a shareholding, those losses correspond to hidden reserves of the company’s assets; ‘hidden reserves’ are the amount constituted by the difference between, on the one hand, own capital which is to be inferred, overall, from the calculation for tax purposes of profits and, on the other, the value of the shares in the undertaking corresponding to that own capital.

Facts of the dispute

15 The applicant, Heitkamp BauHolding GmbH, is a company which, since 2008, has been at risk of insolvency and required restructuring.

16 On 20 February 2009, the applicant’s parent company, Heitkamp KG, bought the shares in the applicant with a view to a merger between the two companies.

17 On the date of the transaction at issue, the applicant met the conditions for application of the restructuring clause, as is clear from the binding information from the Finanzamt Herne (Herne tax office) of 11 November 2009 (‘the binding information’).

18 Furthermore, on 29 April 2010, the applicant received from the tax authorities a notice of advance payment relating to corporation tax for the tax year 2009, which took account of the losses carried forward pursuant to the restructuring clause.

19 Following the Commission’s decision to open the formal investigation procedure (see paragraph 25 below), the German Ministry of Finance, by letter of 30 April 2010, ordered the tax authorities to cease applying the restructuring clause.

20 Accordingly, on 27 December 2010, the notice of advance payment of 29 April 2010 was replaced by a new notice of advance payment relating to corporation tax for the 2009 tax year which did not take account of the restructuring clause. In January 2011, the applicant received notices of advance payment relating to the corporation tax relating to later tax years or to other taxes, which also disregarded the restructuring clause.

21 On 1 April 2011, the applicant received the tax assessments relating to corporation tax and basic trade tax for the 2009 tax year. As a result of the non-application of the restructuring clause, the applicant was not in a position to carry forward the losses existing on 31 December 2008.

22 On 19 April 2011, the tax authorities annulled the binding information.

23 On 22 July 2011, the Federal Republic of Germany sent the Commission, as required by the contested decision (see paragraph 34 below), the list of companies which had benefited from the measure at issue. The applicant’s name was included in the list of companies for which binding information concerning application of the restructuring clause had been annulled.

24 The applicant challenged the above notices of advance payment and tax assessments before the tax authorities and before the competent tax courts. By order of 1 August 2011, the Finanzgericht Münster (Finance Court, Münster) suspended the application of those notices.

Administrative procedure

25 By letters of 5 August and 30 September 2009, the Commission requested the Federal Republic of Germany to provide it with information on Paragraph 8c of the KStG. The German authorities replied to that request by letters of 20 August and 5 November 2009. By decision of 24 February 2010 (OJ 2010 C 90, p. 8; ‘the opening decision’), the Commission opened the formal investigation procedure provided for under Article 108(2) TFEU concerning State aid in Case C 7/10 (ex NN 5/10).

26 Following the publication of the opening decision in the Official Journal of the European Union on 8 April 2010, the interested parties were invited to submit their comments. The German authorities submitted their reply by letter of 9 April 2010.

27 On 9 April and 3 June 2010, two meetings took place between the Commission staff and representatives of the Federal Republic of Germany. The latter submitted further information on 2 July 2010. The Commission did not receive any comments from interested third parties.

Contested decision

28 On 26 January 2011, the Commission adopted Decision 2011/527/EU on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (OJ 2011 L 235, p. 26; ‘the contested decision’).

29 In the first place, the Commission classified the restructuring clause as State aid.

30 First, the Commission noted that the possibility granted by the German Government to certain companies of reducing their corporate tax burden through loss carry-forward resulted in a loss of public revenue, and was therefore granted from State resources. It further stated that the aid was granted on the basis of legislation and that it was therefore attributable to the State.

31 Secondly, the Commission considered that the restructuring clause created an exception to the general rule providing for the forfeiture of losses which were not used by companies whose ownership of which had changed. That clause was therefore liable to confer a selective advantage on companies that met the requirements for benefitting from it, which was not justified by the nature or general scheme of the system. According to the Commission, the purpose of the restructuring clause was to tackle the problems caused by the economic and financial crisis, an objective which was extrinsic to the tax system.

32 Thirdly, the Commission found that the restructuring clause applied to all sectors of the German economy, nearly all of which were active on markets open to competition and intra-Union trade. Consequently, the measure was liable to affect intra-Union trade and to distort or threaten to distort competition. Moreover, since all potential beneficiaries of the measure were undertakings in difficulty within the meaning of the Community Guidelines on State aid for Rescuing and Restructuring Firms in Difficulty (OJ 2004 C 244, p. 2), none of them was covered within the meaning of Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 [EC] and 88 [EC] to de minimis aid (OJ 2006 L 379, p. 5).

33 In the second place, the Commission examined whether the measure could be considered compatible with the internal market and concluded that limited aid to certain beneficiaries could be declared compatible with the internal market, provided that it met all the conditions of a German aid scheme which the Commission had approved within the meaning of the temporary Community framework for State aid measures to support access to finance in the current financial and economic crisis (OJ 2009 C 83, p. 1). By contrast, the Commission found the restructuring clause to be incompatible with the internal market on the basis of the guidelines on State Aid for rescuing and restructuring firms in difficulty, the guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13), and the guidelines on State aid for environmental protection (OJ 2008 C 82, p. 1), as well as with Article 107(3) TFEU.

34 In the third place, the Commission instructed the Federal Republic of Germany to take all necessary measures to recover the aid that had been unlawfully granted to the beneficiaries. The Federal Republic of Germany was also required to draw up a list of undertakings which had benefited from the aid since 1 January 2008. The Commission also stated that the annual date for the payment of corporation tax was to be regarded as the relevant date for determining when the aid was made available to the beneficiaries and that the amount of aid to be recovered was to be calculated on the basis of the tax declarations of the companies concerned. The amount of the aid corresponded, according to the Commission, to the difference between the amount of tax which should have been paid if the restructuring clause had not been applied and the amount that was in fact paid pursuant to the application of that clause.

35 The operative part of the contested decision is worded as follows:

Procedure and forms of order sought

36 By application lodged at the Court Registry on 6 June 2011, the applicant brought the present action.

37 By a separate document lodged at the Court Registry on 16 September 2011, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the General Court of 2 May 1991. The applicant lodged its observations on that objection on 20 October 2011.

38 By document lodged at the Court Registry on 29 August 2011, the Federal Republic of Germany applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By order of 5 October 2011, the President of the Second Chamber of the Court granted that leave. The Federal Republic of Germany lodged its statement in intervention, limited to admissibility, and the other parties lodged their observations on that statement within the prescribed periods.

39 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was, accordingly, allocated.

40 By order of 30 January 2012, the President of the Eighth Chamber, at the applicant’s request, ordered that the proceedings be stayed until 4 September 2012.

41 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Ninth Chamber, to which the present case was, accordingly, allocated.

42 By order of the Court (Ninth Chamber) of 21 May 2014, consideration of the objection of inadmissibility was reserved for the final judgment, in accordance with Article 114(4) of the Rules of Procedure of 2 May 1991.

43 On 3 July 2014, the Commission filed its defence. The reply and rejoinder were respectively lodged on 15 August 2014 by the applicant and on 13 December 2014 by the Commission.

44 On 21 August 2014, the Federal Republic of Germany lodged its statement in intervention and the other parties lodged their observations on that statement within the prescribed periods.

45 By way of measures of organisation of procedure, provided for under Article 64 of the Rules of Procedure of 2 May 1991, the Court (Ninth Chamber), on 19 May 2015, put written questions to the parties, to which the latter replied within the prescribed period.

46 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 8 July 2015.

47 The applicant, supported by the Federal Republic of Germany, claims that the Court should: — reject the objection of inadmissibility raised by the Commission; — annul the contested decision; — order the Commission to pay the costs.

48 The Commission contends that the Court should: — dismiss the action as inadmissible or, in the alternative, as unfounded; — order the applicant to pay the costs.

Law

Admissibility of the action

49 In support of its objection of inadmissibility, the Commission argues that the present action is inadmissible on the ground that the applicant has not shown either that the conditions of the fourth paragraph of Article 263 TFEU were met or that it had an interest in bringing proceedings.

Locus standi within the meaning of the fourth paragraph of Article 263 TFEU

50 First, the Commission denies that the applicant has locus standi inasmuch as the contested decision is not of individual concern to it.

51 The Commission submits that the applicant is not an actual recipient of individual aid granted pursuant to the restructuring clause and in respect of which the Commission has ordered recovery. The tax debt is established in a legally binding manner only when it has been determined by way of a tax assessment, pursuant to Paragraph 155(1) of the German tax code.

52 In the absence of a tax assessment establishing its tax debt pursuant to the measure at issue, the applicant may not, the Commission submits, base its individual concern either on notices of advance payment or on binding information. Nor may it claim that it is concerned within the meaning of Article 108(2) TFEU. The Commission draws a distinction, in this regard, between the occurrence of tax liability and the payment of that tax becoming due and submits that only a legally binding tax assessment reducing the tax debt could substantiate the applicant’s individual concern.

53 In those circumstances, according to the Commission, the contested decision does not order the refund of aid already granted to the applicant, but leaves it to the national authorities to draw the appropriate conclusions from the incompatibility of the aid scheme with the internal market by way of tax assessments. Those tax assessments may be contested before a national court, as has happened in the present case, the Finanzgericht having suspended the application of the tax assessments at issue.

54 Secondly, the Commission notes that the action is also inadmissible in respect of the third situation referred to in the fourth paragraph of Article 263 TFEU, since the contested decision entails implementing measures, namely the establishment of a tax assessment.

55 The applicant, supported by the Federal Republic of Germany, submits that the action is admissible.

56 Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures’.

57 It should be noted, as a preliminary point, that the contested decision was not addressed to the applicant, but solely to the Federal Republic of Germany.

58 It should also be noted that, inasmuch as Article 4 of the contested decision requires the Federal Republic of Germany to withdraw and recover from the beneficiaries the aid referred to in Article 1 of that decision, the applicant must be held to be directly concerned by that decision. The two criteria pertaining to direct concern which emerge from the case-law — first, the fact that the measure at issue must directly produce effects on the applicant’s legal situation and, secondly, the fact that the measure must not leave any discretion to the addressees of the measure required to implement it — are satisfied in the present case (see, to that effect, judgment of 17 September 2009 in Commission v Koninklijke FrieslandCampina, C‑519/07 P, ECR, EU:C:2009:556, paragraph 48 and the case-law cited). Moreover, the Commission raises no objection in that respect.

59 Since the applicant’s direct concern is established, it is appropriate to check whether the applicant is also individually concerned by the contested decision, without it being necessary, if so, to check whether the contested decision is a regulatory act that does not entail implementing measures.

60 According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are specific to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, at p. 107; of 9 June 2011 in Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, ECR, EU:C:2011:368, paragraph 52; and of 19 December 2013 in Telefónica v Commission, C‑274/12 P, ECR, EU:C:2013:852, paragraph 46).

61 Consequently, an undertaking may not, in principle, bring an action for annulment of a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis such an undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner (see judgments of 29 April 2004 in Italy v Commission, C‑298/00 P, ECR, EU:C:2004:240, paragraph 37 and the case-law cited, and of 11 June 2009 in Acegas v Commission, T‑309/02, ECR, EU:T:2009:192, paragraph 47 and the case-law cited). In that regard, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (judgment in Telefónica v Commission, paragraph 60 above, EU:C:2013:852, paragraph 47).

62 By contrast, where a decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of that group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders (judgments of 17 January 1985 in Piraiki-Patraiki and Others v Commission, 11/82, ECR, EU:C:1985:18, paragraph 31; of 22 June 2006 in Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, ECR, EU:C:2006:416, paragraph 60; and in Commission v Koninklijke FrieslandCampina, paragraph 58 above, EU:C:2009:556, paragraph 54).

63 It is in the light of that case-law that it is necessary to determine whether, given its legal and factual situation, the applicant must be regarded as being individually concerned by the contested decision.

64 As a preliminary point, contrary to the applicant’s arguments, it must be held that the characterisation as a ‘concerned’ person within the meaning of Article 108(2) TFEU does not entitle the applicant to avail of a specific status capable of establishing its individual concern, especially as it did not make use of the procedural rights flowing therefrom, in particular that of submitting its observations during the formal investigation procedure (see, to that effect, judgment of 13 December 2005 in Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, ECR, EU:C:2005:761, paragraph 37).

65 As regards individual concern within the meaning of the judgment in Plaumann v Commission, paragraph 60 above, (EU:C:1963:17), it should be noted that the applicant’s factual and legal situation is characterised by the following elements.

66 First, when the 2009 tax year ended and therefore before the opening of the proceedings brought by the Commission, the applicant had a right to carry its losses forward under the German legislation, as a result of the fact that the conditions stipulated by the restructuring clause were satisfied.

67 Secondly, in the course of 2009, the applicant made taxable profits from which it claims to have deducted the losses carried forward under the restructuring clause.

68 Those circumstances had been certified by the German tax authorities in the binding information and the notices of advance payment relating to the 2009 tax year, which took account of the losses carried forward under the restructuring clause (see paragraphs 17 and 18 above). Moreover, the receipt of that binding information entailed, subsequently, the inclusion of the applicant’s name on the list sent by the German authorities to the Commission pursuant to Article 6(1)(a) of the contested decision.

69 Accordingly, pursuant to the German legislation, it was certain that, at the close of the 2009 tax year, the applicant would have made a tax saving, which it was, moreover, able to quantify precisely. Since the German authorities had no discretion with regard to the application of the measure at issue, the realisation of that tax saving, by way of a reduced payment of tax, was only a matter of time, under the detailed rules for the implementation of the tax system. The applicant thus had an acquired right, certified by the German authorities before the adoption of the opening decision and, subsequently, of the contested decision, to the application of that tax saving, which, had it not been for those decisions, would have crystallised as a result of the issue of a tax assessment authorising the loss carry-forward and the consequent posting thereof to the applicant’s balance sheet. The applicant was, therefore, easily identifiable by the German tax authorities and the Commission.

70 Consequently, the applicant may not be regarded solely as an undertaking concerned by the contested decision because it belongs to the sector in question and because of its status as a potential beneficiary, but must rather be seen as being part of a closed category of traders, who were identified or at least readily identifiable at the time of the adoption of the contested decision, within the meaning of the judgment in Plaumann v Commission, paragraph 60 above (EU:C:1963:17) (see also, by analogy, judgments in Belgium and Forum 187 v Commission, paragraph 62 above, EU:C:2006:416, paragraph 63; Commission v Koninklijke FrieslandCampina, paragraph 58 above, EU:C:2009:556, paragraph 57; Comitato ‘Venezia vuole vivere’ and Others v Commission, paragraph 60 above, EU:C:2011:368, paragraph 56; of 27 February 2014 in Stichting Woonpunt and Others v Commission, C‑132/12 P, ECR, EU:C:2014:100, paragraphs 59 to 61; and Stichting Woonlinie and Others v Commission, C‑133/12 P, ECR, EU:C:2014:105, paragraphs 46 to 48).

71 That conclusion is not called into question by the fact that, following the opening decision and, subsequently, the contested decision, the German authorities adopted measures designed to ensure that the restructuring clause was not used, including, inter alia, the annulment of the binding information and the adoption of a tax assessment relating to corporation tax for the 2009 tax year which no longer took account of the losses carried forward under the restructuring clause (see paragraph 21 above).

72 The German authorities decided to suspend the application of the restructuring clause, without, however, repealing it, and to issue a tax assessment without applying that clause, specifically in order to comply with the opening decision and the contested decision. Accordingly, in the context of the examination of the admissibility of the action challenging the contested decision, by which the Commission concluded that the measure at issue constituted State aid and found it to be incompatible with the internal market, the Commission may not take advantage of the fact that the German authorities immediately took all necessary measures in order to ensure compliance with that decision, pending the outcome of a possible appeal against it.

73 Nor may that conclusion be called into question by the case-law relied on by the Commission in its pleadings and at the hearing, and in particular by the judgments in Telefónica v Commission, paragraph 60 above (EU:C:2013:852); of 11 June 2009 in AMGA v Commission (T‑300/02, ECR, EU:T:2009:190); Acegas v Commission, paragraph 61 above (EU:T:2009:192); and of 8 March 2012 in Iberdrola v Commission (T‑221/10, ECR, EU:T:2012:112).

74 The factual circumstances in those cases are not comparable to those at issue in the present case, in which it was found that, because of the particularities of the German tax legislation, the applicant had an acquired right to a tax saving, certified by the German tax authorities (see paragraph 68 above), that circumstance setting it apart from other operators which are concerned only as potential beneficiaries of the measure at issue (see, to that effect, judgment in Commission v Koninklijke FrieslandCampina, paragraph 58 above, EU:C:2009:556, paragraph 55).

75 Nor is the conclusion in paragraph 69 above called into question by the Commission’s argument that only an advantage granted by way of State resources could support the applicant’s individual concern and that there was a financial burden for the State only at the time at which the tax reduction was established by the tax assessment.

76 It should be recalled that the elements which the case-law takes into account with respect to individual concern within the meaning of the fourth paragraph of Article 263 TFEU (see paragraphs 60 to 62 above) do not necessarily coincide with the elements constitutive of State aid within the meaning of Article 107(1) TFEU (see, by analogy, judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission, paragraph 60 above, EU:C:2011:368, paragraphs 56, 63 and 64). Within the meaning of the judgment in Plaumann v Commission, paragraph 60 above (EU:C:1963:17, at p. 107), a person other than that to whom a decision is addressed will be individually concerned by that decision if it affects that person as a result of certain specific attributes or of a factual situation which sets it apart from any other person, and if it is therefore part of a limited class of traders.

77 In the present case, it should be recalled that, under the national legislation, the applicant had, before the adoption of the opening decision and, subsequently, of the contested decision, an acquired right, certified by the German tax authorities, to make a tax saving in the 2009 tax year. Moreover, the Commission itself stated, in recital 50 of the contested decision, that the mere possibility granted by the German Government to certain companies of reducing their tax burden by a loss carry-forward resulted in a loss of public revenue and constituted State aid.

78 In light of all of the foregoing, it must be held that, in the circumstances of the present case, the applicant is directly and individually concerned by the contested decision.

79 The applicant therefore has locus standi within the meaning of the fourth paragraph of Article 263 TFEU.

The interest in bringing proceedings

80 The Commission argues that the applicant is not the recipient of aid and cannot therefore derive any benefit from a possible annulment of the contested decision by the Court. The Federal Republic of Germany, it submits, is not required, following the adoption of the contested decision, to recover the aid from the applicant, and, irrespective of whether or not the contested decision is annulled, the German authorities may decide at any time to repeal in full the measure in question.

81 The applicant, supported by the Federal Republic of Germany, disputes those arguments.

82 In accordance with settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, to that effect, judgments in Commission v Koninklijke FrieslandCampina, paragraph 58 above, EU:C:2009:556, paragraph 63; Stichting Woonpunt and Others v Commission, paragraph 70 above, EU:C:2014:100, paragraphs 50 to 54; and Stichting Woonlinie and Others v Commission, paragraph 70 above, EU:C:2014:105, paragraph 54).

83 The conditions governing the admissibility of an action must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged (see judgment of 21 March 2002 in Shaw and Falla v Commission, T‑131/99, ECR, EU:T:2002:83, paragraph 29 and the case-law cited).

84 In the present case, the applicant satisfied the conditions for application of the restructuring clause and had acquired a benefit from that clause, as is apparent from paragraphs 66 to 69 above.

85 Although the application of the restructuring clause was suspended following the adoption of the contested decision, under Paragraph 34(6) of the KStG, in the event of the annulment of that decision, the restructuring clause would again apply, retroactively, to all undertakings whose tax assessment has not yet become final, including the applicant, with the result that the annulment of the contested decision would be beneficial to the applicant.

86 Furthermore, even assuming, as the Commission does, that the applicant will no longer be able to achieve profits in the future, having been placed in liquidation, the fact remains that, having achieved profits before the adoption of the contested decision, in the event of the annulment of that decision it would be entitled to ask for the restructuring clause to be applied, at least as regards the taxation of its 2009 revenue.

87 Consequently, the applicant has an interest in bringing proceedings against the contested decision.

88 The action is therefore admissible.

Substance

89 In support of the action, the applicant relies on two pleas in law alleging that the measure at issue is not selective in nature.

90 In that context, it should be noted at the outset that Article 107(1) TFEU prohibits aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid.

91 According to settled case-law, in order to classify a domestic tax measure as ‘selective’, it is necessary, first of all, to identify and examine the common or ‘normal’ tax regime applicable in the Member State concerned. It is in relation to that common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (see, to that effect, judgments of 8 September 2011 in Paint Graphos and Others, C‑78/08 to C‑80/08, ECR, EU:C:2011:550, paragraphs 50 and 54, and of 15 November 2011 in Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, ECR, EU:C:2011:732, paragraph 75). At the outcome of those first two stages of the review, a measure may be described as prima facie selective.

92 However, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the tax system of which it is part does not satisfy that condition of selectivity (see, to that effect, judgment of 8 November 2001 in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, ECR, EU:C:2001:598, paragraph 42, and judgment in Paint Graphos and Others, paragraph 91 above, EU:C:2011:550, paragraph 64). Following that possible third stage of the review, a measure is classified as selective.

93 It must be recalled that, in order to prove that the measure at issue applies selectively to certain undertakings or to the production of certain goods, it is for the Commission to prove that it differentiates between undertakings which, with regard to the objective pursued by the system at issue, are in a comparable factual and legal situation, while it is for the Member State which has made such a distinction between undertakings in relation to charges to show that it is actually justified by the nature and general scheme of the system in question (see, to that effect, judgment of 8 September 2011 in Commission v Netherlands, C‑279/08 P, ECR, EU:C:2011:551, paragraph 62 and the case-law cited).

94 It is in the light of that three-stage analysis, which emerges from the case-law, that it is appropriate to examine the two pleas put forward by the applicant, the first of which alleges, in essence, that the measure at issue is not prima facie selective and the second of which argues that the measure at issue is justified by the nature and general scheme of the tax system.

The first plea, alleging that the measure at issue is not prima facie selective

95 The first plea comprises three parts. The first part alleges that an error was made in the definition of the system of reference. The second part alleges an error in the assessment of the legal and factual situation of the undertakings requiring restructuring and of the Commission’s refusal to classify the restructuring clause as a general measure, while the third part alleges a breach of the principle of the protection of legitimate expectations.

– The first part, alleging an error in the definition of the system of reference

96 In the contested decision, for the purposes of assessing the selectivity of the measure at issue, the Commission took account, first, of the fact that the loss carry-forward rule was of general application, secondly, of the rule governing the forfeiture of losses, which derogates from the first rule in those cases where the acquisition of a shareholding was prejudicial, and thirdly, of the restructuring clause, which permits derogations from the second rule and the application of the first rule in certain specific situations.

97 The Commission concluded from those elements, in recital 66 of the contested decision, that, in the context of the German corporation tax system, the forfeiture of losses constituted the system of reference, that is to say, the general rule applicable in all cases of a change in ownership of a company, and that the restructuring clause was an exception to that rule.

98 The applicant, supported by the Federal Republic of Germany, argues that the Commission erred in the determination of the system of reference for the purposes of assessing the selectivity of the measure at issue. The Commission, it is submitted, incorrectly found that the rule governing the forfeiture of losses was the general rule and that the restructuring clause was an exception to that rule.

99 According to the applicant, the system of reference consists of the loss carry-forward rule as a corollary of the constitutional principle of taxation according to ability to pay. The rule governing the forfeiture of losses is an exception to that principle and cannot be regarded as the system of reference, while the restructuring clause — which introduces an exception to that exception — merely re-establishes the general rule, namely the loss carry-forward rule, following the example of other exceptions such as the clause governing groups of undertakings and that relating to hidden reserves.

100 The Commission argues, as a preliminary point, that the first part of the first plea is inadmissible, in that it is based on new facts that were not relied on in the administrative procedure. It recalls having established the rule governing the forfeiture of losses as the reference provision in the opening decision and in Decision 2010/13 relating to the MoRaKG Law, without the applicant, the Federal Republic of Germany or any other interested third parties having challenged that definition during the administrative procedure. It also states that national tax law is, from the point of view of EU law, a matter of fact, of which it did not have full knowledge at the time of the adoption of the contested decision and which it was not required to investigate of its own motion.

101 The Commission disputes the merits of the applicant’s arguments.

102 As a preliminary point, the objection of inadmissibility raised by the Commission must be rejected. It is apparent from the very case-law relied on by the Commission in support of its argument that the assessment of the lawfulness of a decision in the light of the information available to the Commission when the decision was adopted concerns, in fact, the merits and not the admissibility of the plea in question (see, to that effect, judgments of 26 September 1996 in France v Commission, C‑241/94, ECR, EU:C:1996:353, paragraph 33; of 24 September 2002 in Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, ECR, EU:C:2002:524, paragraph 168; and of 7 December 2010 in Frucona Košice v Commission, T‑11/07, ECR, EU:T:2010:498, paragraph 49).

103 As regards the merits of the arguments put forward by the applicant, it should be recalled that in the contested decision the Commission established, in essence, the rule governing the forfeiture of losses as being the general rule in respect of which it was appropriate to examine whether there was a distinction between the undertakings that were in a comparable factual and legal situation, while the applicant refers to the more general rule of loss carry-forward, which applies to all taxation.

104 In that regard, it should be recalled, on the one hand, that it is open to all undertakings to make use of the loss carry-forward rule in the context of the levying of corporation tax and, on the other, that the rule governing the forfeiture of losses restricts the use of that option in the event of the acquisition of a shareholding equal to or greater than 25% of the share capital and withdraws it in the event of the acquisition of more than 50% of the share capital. The latter rule therefore applies systematically to all cases of a change of ownership of 25% or more of a company’s share capital, without drawing any distinction on the basis of the nature or characteristics of the undertakings concerned.

105 Furthermore, the restructuring clause is worded in the form of an exception to the rule governing the forfeiture of losses and applies only to those well-defined situations which are subject to that rule.

106 Accordingly, it is clear that the rule governing the forfeiture of losses, like the loss carry-forward rule, is part of the legislative framework in the context of which the measure at issue arises. In other words, the general loss carry-forward rule, as limited by the rule governing the forfeiture of losses, constitutes the relevant legal framework in the present case, and it is precisely within that framework that it is appropriate to check whether the measure at issue differentiates between operators in a comparable factual and legal situation within the meaning of the case-law cited in paragraph 91 above, that question being set out under the second part of the first plea.

107 It must therefore be held that the Commission did not err when, while noting the existence of a more general rule, namely the loss carry-forward rule, it determined that the legislative framework of reference established in order to assess the selectivity of the measure at issue was constituted by the rule governing the forfeiture of losses.

108 That conclusion is not called into question by the applicant’s arguments, which rely on the uncertainties of the national courts as to the constitutionality of the rule governing the forfeiture of losses and of the need for a restrictive interpretation of that rule in the light of the constitutional principles. Those arguments do not preclude the finding that that rule is part of national law so long as it has not been repealed and that the restructuring clause applies only in step with the application of that rule. Accordingly, even where a restrictive interpretation was, where applicable, sought, the Commission could not disregard that rule in the definition of the framework of reference.

109 Similarly, the arguments seeking to show that the rule governing the forfeiture of losses derogates from the constitutional principles are also not relevant, inasmuch as the classification of that rule as an exception to a superior rule of law, such as the principle of taxation according to ability to pay, does not prevent it from forming part of the framework of reference of which the measure at issue is part and in the light of which it is appropriate to assess the selective nature of the latter.

110 The first part of the first plea must therefore be rejected.

– The second part, alleging an error in the assessment of the legal and factual situation of the undertakings requiring restructuring and in the classification of the restructuring clause as a general measure

111 In the contested decision, the Commission found that the rule governing the forfeiture of losses had a broader scope than that of the former rule (recital 10), that the rule did not originally provide for any exception (recital 11) and that, as is apparent from the explanatory memorandum to the 2008 Law on Business Taxation Reform (see paragraph 6 above), the objective of the rule was twofold: first, to simplify the rules and, secondly, to target abuse better (recital 12). It also noted that the lack of an express exception allowing loss carry-forward in the event of restructuring was offset by the possibility for the tax authorities to waive tax debts on the basis of considerations of equity (recital 12; see paragraph 7 above).

112 On the basis of those elements, in recitals 68 to 79 of the contested decision, the Commission, first of all, found that the objective of the corporation tax system was to generate revenue for the State budget and that the objective of the rule governing the forfeiture of losses was to prevent undertakings which had changed ownership from carrying forward their losses. Next, it found that, in the light of that objective, all companies of which 25% or more of the share capital had changed ownership were in a comparable factual and legal situation. Finally, it found that, within that category, the restructuring clause differentiated between, on the one hand, loss-making companies that were otherwise healthy and, on the other, companies which, according to the conditions laid down by the restructuring clause, were insolvent or over-indebted, or at risk thereof.

113 The applicant submits, first, that the companies which come within the scope of the restructuring clause are not in a comparable factual and legal situation, in the light of the objective pursued by the legislation, namely the prevention of abuse, to that of other companies which are subject to the rule governing the forfeiture of losses. Thus, the rule governing the forfeiture of losses does not apply to situations in which companies are restructured, which do not create a risk of abusive arrangements.

114 The applicant, supported by the Federal Republic of Germany, claims, secondly, that the restructuring clause is a general measure, because it benefits all companies undergoing financial difficulties, independently of their size, sector or the significance of their economic activities.

115 The Commission contends, as a preliminary point, that the arguments which rest on the legal and factual situation of the companies requiring restructuring and the classification of the restructuring clause as a general measure, raised in the reply, are new pleas and are, accordingly, inadmissible.

116 The Commission disputes the merits of the applicant’s arguments.

117 With respect to the admissibility of the arguments relied on by the applicant, it should be recalled that, according to Article 48(2) of the Rules of Procedure of 2 May 1991, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure. However, a plea or argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, and which is closely connected therewith, must be declared admissible (judgment of 11 July 2013 in Ziegler v Commission, C‑439/11 P, ECR, EU:C:2013:513, paragraph 46). The same applies to a submission made in support of a plea in law (judgment of 21 March 2002 in Joynson v Commission, T‑231/99, ECR, EU:T:2002:84, paragraph 156, confirmed by the order of 10 December 2003 in Joynson v Commission, C‑204/02 P, ECR, EU:C:2003:660).

118 It is therefore appropriate to check, in the light of the above case-law, whether the arguments derived from the legal and factual situation of the companies requiring restructuring and from the classification of the restructuring clause as a general measure, set out by the applicant in the reply, constitute new pleas or merely an expansion of the first part of the first plea.

119 It should be recalled that, by the first part of the first plea, alleging that an error was made in the definition of the system of reference, the applicant’s challenge relates to the absence of one of the constitutive elements of State aid within the meaning of Article 107(1) TFEU, namely the condition of selectivity. The purpose of the heads of claim relying, on the one hand, on the non-comparability of the legal and factual situation of companies requiring restructuring and, on the other, on the categorisation of the restructuring clause as a general measure is also to challenge, from different angles, the condition of selectivity.

120 According to the settled case-law cited in paragraph 91 above, in order to classify a tax measure as prima facie selective, it is necessary to begin by identifying and examining the common or ‘normal’ tax regime applicable in the Member State concerned and, secondly, to demonstrate that the measure at issue differentiates between operators which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation.

121 In the present case, it must be stated that, by its first plea, the applicant disputed, in essence, the Commission’s assessment as to the prima facie selective nature of the measure at issue and, more specifically, the definition of the framework of reference.

122 It should also be noted that the more specific arguments relating to the legal and factual situation of the companies requiring restructuring and to the classification of the restructuring clause as a general measure were set out in response to the Commission’s argument, expounded in the defence, that the framework of reference could not be defined by reference to the tax system in general, but rather by reference to the companies which it considered to be in a factual and legal situation comparable to that of companies benefitting from the restructuring clause. The question of whether the identification of the companies which were in a comparable factual and legal situation should be dealt with as part of the first or second stage of the review above is a matter of dispute between the parties.

123 It must therefore be held that, contrary to what the Commission contends, the head of claim at issue constitutes an expansion of the first part of the first plea, and not a new plea.

124 The second part of the first plea is therefore admissible.

125 With respect to whether the arguments put forward by the applicant are well founded, since the system of reference has been identified as being constituted by the rule governing the forfeiture of losses, it is appropriate, first of all, to check whether, in the light of the objective pursued by the relevant tax system, the companies benefitting from the restructuring clause are in a comparable factual and legal situation to that of other companies that are subject to the rule governing the forfeiture of losses, which it is for the Commission to show within the meaning of the case-law cited at paragraph 93 above.

126 In essence, according to the Commission, since the objective of the relevant tax system in the present case is to prevent companies which have undergone a change in share ownership from carrying their losses forward, all companies which have undergone a change in share ownership are in a comparable factual and legal situation, whether they benefit from the restructuring clause or not. The measure at issue is therefore prima facie selective, since it benefits only those companies which fulfil the requirements of that clause.

127 By contrast, according to the applicant, since the objective of the scheme at issue is to avoid abuse of the loss carry-forward rule, only the companies that fulfil the requirements of the restructuring clause are in a comparable factual and legal situation, since they are not in a position to abuse the loss carry-forward rule.

128 As set out in paragraph 106 above, the relevant legal framework in the present case is made up of the general rule of loss carry-forward, as limited by the rule governing the forfeiture of losses. It is therefore appropriate to consider that, as is apparent from recital 71 of the contested decision, the relevant purpose of the tax system of reference is to prevent companies which have changed ownership from carrying their losses forward. In other words, the possibility of carrying losses forward is restricted or withdrawn in the event that, following an acquisition of a shareholding equal to or greater than 25% of its share capital, the ownership of the company which has accumulated losses is changed substantially.

129 It follows that all companies which have undergone such a change of ownership are in a comparable factual and legal situation, regardless of whether they are experiencing difficulties within the meaning of the restructuring clause.

130 By contrast, the measure at issue does not cover all companies whose ownership has changed substantially, but applies to a very specific category of companies, namely those which, according to the wording of the restructuring clause at the time of acquisition ‘are, or are likely to be, insolvent or over-indebted’ (‘the undertakings in difficulty’).

131 It must be held that that category does not cover all companies that are in a comparable legal and factual situation with regard to the objective of the tax system at issue.

132 Even if, as argued by the applicant, the relevant objective of the tax system is to prevent abuse of the loss carry-forward rule by avoiding the purchase of ‘empty-shell companies’, the fact remains that the measure at issue applies only to companies that fulfil certain conditions, in particular undertakings in difficulty.

133 Even assuming that, in situations which are the subject of the measure at issue, there is no risk of abuse, in accordance with the objective under consideration, it must be stated that that measure does not allow loss carry-forward in the event of a significant change in the ownership of the company concerned, where that change does not concern an undertakings in difficulty, even if the change in ownership does not relate to the purchase of ‘empty-shell companies’ and therefore does not create a risk of abuse. Loss carry-forward is prohibited even if the other conditions of the restructuring clause, relating in particular to the maintenance of the essential structures of the company, namely the conditions listed under (c) to (e) of the restructuring clause, are fulfilled. In other words, the conditions listed under (a) and (b) of the restructuring clause are not linked to the objective of preventing abuse. They therefore have the effect of favouring undertakings in difficulty.

134 It must therefore be concluded that the Commission did not err in finding that the measure at issue differentiated between operators which were, in the light of the objective assigned to the tax system, in a comparable factual and legal situation, within the meaning of the case-law cited in paragraph 91 above.

135 That conclusion is not called into question by the fact, relied on by the applicant, that other derogations, such as the clause governing groups of undertakings and that relating to hidden reserves, cover situations in which there is no risk of abuse.

136 Even if those exceptions, like the restructuring clause, are justified by the fact that they cover situations in which the undertakings concerned are not in a position to abuse the loss carry-forward rule, the fact remains that the legislative system at issue, in fact, differentiates between operators which are, in the light of the relevant tax objective, in a comparable factual and legal situation.

137 Outside of the above exceptions, an undertaking may not avoid the forfeiture of losses, even in the absence of any risk of abuse. Moreover, the Court of Justice has held that the existence of a selective advantage for undertakings benefitting from an exemption from normal taxation could not be challenged on the ground that other exemptions from that taxation existed for the benefit of other undertakings (see, to that effect, judgments in Belgium and Forum 187 v Commission, paragraph 62 above, EU:C:2006:416, paragraph 120, and of 1 July 2010 in BNP Paribas and BNL v Commission, T‑335/08, ECR, EU:T:2010:271, paragraph 162).

138 In any event, as set out in paragraph 133 above, it is the restructuring clause itself which, for the purposes of its application, draws a distinction, which is not based on the relevant objective of the tax system as defined in paragraph 106 above, between the undertakings which meet only the conditions set out under (c) to (e) of that clause and the undertakings which also meet the conditions set out under (a) and (b) of the same clause, namely undertakings in difficulty.

139 Secondly, the argument of the applicant and of the intervener that the measure at issue is a general measure, in that it benefits any undertaking in difficulty, cannot be upheld.

140 The question whether the measure is of a general nature or not, in the context of the review of the selectivity of a tax measure, rests on the question whether, in relation to the common or normal tax regime, the measure at issue differentiates between operators which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation. As stated in the paragraphs above, in the contested decision, the Commission correctly found that the measure at issue differentiates between companies, namely, between those companies which meet the requirements of the measure at issue and other companies which are in a comparable legal and factual situation with regard to the objective pursued by the regime at issue. Even supposing that that objective, as argued by the applicant, is to prevent abuse of the loss carry-forward rule, it must be held that the measure at issue, whether considered alone or together with the other two exceptions above, does not cover all companies that are the subject of a prejudicial shareholding acquisition which does not create such a risk of abuse.

141 Moreover, it should be noted that, contrary to the applicant’s arguments, the measure at issue is not a general measure, as being potentially available to all companies within the meaning of the judgment of 7 November 2014 in Autogrill España v Commission (T‑219/10, ECR, under appeal, EU:T:2014:939, paragraphs 44 and 45). The measure at issue defines its scope ratione personae. It covers only one category of companies that are in a specific situation, namely undertakings in difficulty. It is, therefore, prima facie selective.

142 Finally, it is also necessary to reject the applicant’s argument that, in essence, if the Commission accepts that the non-application of the rule governing the forfeiture of losses in the event of a change in the ownership of less than 25% of the share capital does not constitute State aid, on the ground that such a change does not make it possible to exert control over the company, the same is true with respect to the changes in share ownership for the purposes of restructuring, which also do not make it possible to exert control over the company. If not, according to the applicant, the Commission’s reasoning would have the effect of leading to the classification of the maintenance of loss carry-forward as State aid in the event of the acquisition of a shareholding of less than 25%.

143 It must be held in this regard that the application of the rule governing the forfeiture of losses is based on general criteria, which are applicable to all companies. In particular, as correctly noted by the Commission, the 25% threshold appears to be a reasonable threshold beyond which it may be assumed that there is an ability to influence the company acquired and therefore that there is a possibility that the acquirer may benefit from the losses that that company has carried forward. By contrast, the restructuring clause relates only to a specific category of undertakings, namely undertakings in difficulty.

144 In any event, that argument is ineffective since, rather than invalidating the finding that the restructuring clause is selective, it seeks in essence to show that there are other situations, namely acquisitions of shareholdings below the 25% threshold, which, since they are not subject to the rule governing the forfeiture of losses, may give rise to a selective advantage within the meaning of Article 107(1) TFEU. In that regard, it must be held that the applicant may not rely on the existence of other measures which might also possibly be classified as State aid in order to show that the measure at issue does not constitute State aid.

145 The second part of the first plea must therefore be rejected.

– The third part, alleging infringement of the principle of the protection of legitimate expectations

146 The applicant claims in the reply that both the Commission’s practice and its Notice on the application of the State aid rules to measures relating to direct business taxation (OJ 1998 C 384, p. 3) created a legitimate expectation that the Commission would not classify the restructuring clause as a selective measure.

147 The Commission contends that this head of claim, alleging an infringement of the principle of the protection of legitimate expectations, is new, since it was raised in the reply, and is therefore inadmissible. It further contends that, in any event, that head of claim must be rejected.

148 In the present case, it must be held that the head of claim alleging infringement of the principle of the protection of legitimate expectations was not set out, either expressly or implicitly, in the application. Nor does it constitute the expansion of a plea set out in the application.

149 Accordingly, the argument at issue constitutes a new head of claim, relied on for the first time in the reply, which is not based on matters of law or of fact which came to light in the course of the procedure. That head of claim is therefore inadmissible pursuant to Article 48(2) of the Rules of Procedure of 2 May 1991, in accordance with the case-law referred to in paragraph 117 above.

150 The third part of the first plea, and consequently the first plea in its entirety, must be rejected.

The second plea, relating to justification of the measure at issue on the basis of the nature and general scheme of the tax system

151 The applicant claims that the restructuring clause makes it possible, in essence, to apply the principle of taxation according to ability to pay, which is an objective forming an essential part of the tax system. It therefore constitutes a measure justified by the nature or logic of the tax system.

152 The restructuring clause is, furthermore, according to the applicant, proportionate to the objective pursued, regard being had to the fact that, on the one hand, the previous system, based on the decree on restructuring, has proved to be inadequate in the light of the global financial crisis and, on the other, that the new system does not confer any discretion on the tax authorities with respect to the application of the restructuring clause.

153 First of all, the Commission contends that the second plea, which rests on new facts — namely arguments based on German constitutional and tax law — which were not raised in the administrative procedure, is inadmissible.

154 It further claims that the second plea is incomprehensible. In particular, it submits, the applicant has failed to explain why the principle of taxation according to ability to pay constitutes a justification on the basis of the nature or logic of the tax system, and not a justification on the basis of an extrinsic and general objective of tax fairness, nor how the legislature infringed its very broad discretion in the application of that principle by adopting the rule governing the forfeiture of losses, with the result that the adoption of the restructuring clause became necessary.

155 Finally, the Commission disputes the merits of the applicant’s arguments.

156 As a preliminary point, the objection, raised by the Commission, that the plea is inadmissible must be rejected, as has been done in paragraph 102 above. It is apparent from the case-law relied on by the Commission and referred to in that paragraph that the assessment of the lawfulness of a decision in the light of the information available to the Commission at the time when the decision was adopted relates, in fact, to the merits and not to admissibility.

157 Furthermore, with respect to whether the plea is comprehensible, it must be stated, as noted by the applicant, that the Commission was in a position to examine the applicant’s arguments on the merits, and in particular the argument relating to the principle of taxation according to ability to pay which, as has been stated, was mentioned in the contested decision.

158 With respect to the merits of the applicant’s arguments, it should be recalled that, according to the case-law cited in paragraph 92 above, a measure which — while differentiating between operators in a comparable factual and legal situation with regard to the objective pursued by the relevant tax system — is justified by the nature or general scheme of the system of which it forms part does not fulfil the condition of selectivity.

159 In that regard, a distinction must be drawn between, on the one hand, the objectives attributed to a particular tax system which are extrinsic to it and, on the other, the mechanisms forming an essential part of the tax system itself which are necessary for the achievement of such objectives, since those objectives and mechanisms, as founding or guiding principles of the tax system at issue, may support such a justification, which it is for the Member State to demonstrate (see judgments in Paint Graphos and Others, paragraph 91 above, EU:C:2011:550, paragraph 65 and the case-law cited, and of 7 March 2012 in British Aggregates v Commission, T‑210/02 RENV, ECR, EU:T:2012:110, paragraph 84 and the case-law cited). Consequently, tax exemptions which are the result of an objective that is unrelated to the tax system of which they form part cannot circumvent the requirements under Article 107(1) TFEU (see judgment in Paint Graphos and Others, paragraph 91 above, EU:C:2011:550, paragraph 70).

160 It should also be borne in mind that a national measure may be justified by the nature or general scheme of the tax system at issue only if, first, it is consistent not only with the characteristics forming an essential part of the tax system at issue but also with the implementation of that system and, secondly, it is consistent with the principle of proportionality and does not go beyond what is necessary, in that the legitimate objective being pursued could not be attained by less far-reaching measures (see, to that effect, judgment in Paint Graphos and Others, paragraph 91 above, EU:C:2011:550, paragraphs 73 to 75).

161 In the contested decision, the Commission drew a distinction between, on the one hand, the objective of the rule governing the forfeiture of losses, and, on the other, the objective of the restructuring clause.

162 With respect to the objective of the rule governing the forfeiture of losses, although, during the administrative procedure, the German authorities invoked the objective of ‘prevent[ing] abuse of the loss carry-forward … in the form of purchases of empty shell companies’ (recital 85 of the contested decision), the Commission found, as is apparent from the changes made to the former rule governing the forfeiture of losses by the new rule, that the objective was to ‘finance a reduction in the corporate income tax rate from 25% to 15%’ (recital 86 of the contested decision).

163 By contrast, the objective of the restructuring clause was, according to the Commission, to tackle the problems caused by the economic and financial crisis and to support ailing companies in the context of that crisis (recitals 87 and 88 of the contested decision). It concluded that the purpose of that clause was extrinsic to the tax system (recital 89 of the contested decision).

164 It must be stated that it is clear from the wording of the measure at issue that its objective is to promote the restructuring of undertakings in difficulty. If that were not the case, it would not be possible to explain why the conditions for the application of Paragraph 8c(1a)(a) and 8c(1a)(b) of the KStG (see paragraph 10 above) include, respectively, a requirement that the purpose of the acquisition of the shares is the restructuring of the company and that, at the time of the acquisition, the company is insolvent or over-indebted, or at risk thereof. Moreover, the applicant itself acknowledges that, through the measure at issue, the legislature is also pursuing the goal of enabling companies affected by the crisis which are insolvent to become healthy again.

165 It is therefore clear that the objective, or at least the main objective, of the measure at issue is to facilitate the restructuring of undertakings in difficulty.

166 In that regard, it should be noted that the aforementioned objective does not come within the founding or guiding principles of the tax system and is therefore not intrinsic, but extrinsic thereto (see, to that effect and by analogy, judgments of 6 September 2006 in Portugal v Commission, C‑88/03, ECR, EU:C:2006:511, paragraph 82, and of 18 July 2013 in P, C‑6/12, ECR, EU:C:2013:525, paragraph 30), without it being necessary to check whether the measure at issue is proportionate to the objective pursued.

167 In any event, the measure at issue is also not justified in the light of the arguments put forward by the applicant and the intervener.

168 First of all, the measure cannot be justified under the principle of taxation according to ability to pay.

169 Regardless of the fact that that justification is not apparent from the explanatory memorandum to the legislation at issue, it appears to be related to the objective, which is specific to the rule governing the forfeiture of losses, of tackling abuse relating to the carry-forward of losses. In essence, according to that argument, since, on the one hand, the rule governing the forfeiture of losses is intended to prevent abuse and, on the other, that in the event of restructuring there is no abuse, it follows that the implementation of the restructuring clause is justified by the same logic as that underlying the application of the rule governing the forfeiture of losses and is restricted to restoring the application of the general principle of loss carry-forward as an expression of the principle of taxation according to ability to pay.

170 However, even if that interpretation is correct, it must be held that the measure at issue is not consistent with the objective pursued. As explained in the context of the first plea, the measure at issue applies only to undertakings in difficulty. In those circumstances, it is not clear why the principle of taxation according to the ability to pay requires that a company in difficulty should be able to benefit from loss carry-forward, where that carry-forward is denied to a healthy company that has incurred losses and meets the other requirements of the restructuring provision.

171 Nor, furthermore, is the measure at issue justified, on the one hand, by differences between the prejudicial acquisition of a shareholding and the acquisition of a shareholding for the purposes of restructuring and, on the other, by objective differences between taxpayers. According to the applicant, supported by the Federal Republic of Germany, in the event of the acquisition of a shareholding for the purposes of restructuring, the new shareholder does not have full control over how losses are used. In addition, companies requiring restructuring, in contrast to healthy companies, do not have the ability to finance themselves on capital markets or to seek a buyer. Nor are they able to retain their losses under the clause governing hidden reserves.

172 In that regard, it must be held that the argument relating to the lack of control over the use of losses is not consistent. Other companies which do not fulfil the requirements of the restructuring clause may also encounter economic difficulties and be unable to exert control over how losses are used, while being excluded from the application of the restructuring clause. Moreover, the difference in position between companies requiring restructuring and healthy companies with regard to access to capital and the availability of hidden reserves is not relevant in the present case. As the Commission correctly noted in recital 91 of the contested decision, the possible objective of providing ailing companies with access to capital is not an essential part of the tax system.

173 Accordingly, it must be held that neither the applicant nor the Federal Republic of Germany has provided any evidence making it possible to justify the measure at issue in accordance with the case-law cited in paragraphs 158 to 160 above.

174 The second plea must therefore be rejected and, consequently, the action must be dismissed in its entirety.

Costs

175 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 134(3) of those rules, where each party succeeds on some and fails on other heads, and if it appears justified in the circumstances of the case, the Court may decide that one party, in addition to bearing its own costs, is to pay a proportion of the costs of the other party.

176 In the present case, it must be noted that the Court has, on the one hand, rejected the objection of inadmissibility raised by the Commission pursuant to Article 114 of the Rules of Procedure of 2 May 1991 and, on the other, dismissed the action in its entirety as being unfounded.

177 In view of those circumstances, the applicant must be ordered to bear its own costs and to pay two thirds of the Commission’s costs, and the Commission must be ordered to bear one third of its own costs.

178 Under Article 138(1) of the Rules of Procedure, Member States which have intervened in proceedings are to bear their own costs. The Federal Republic of Germany must therefore bear its own costs.

On those grounds, THE GENERAL COURT (Ninth Chamber) hereby:

1. Rejects the objection of inadmissibility;

2. Dismisses the action as unfounded;

3. Orders Heitkamp BauHolding GmbH to bear its own costs and to pay two thirds of the European Commission’s costs, and orders the Commission to bear one third of its own costs;

4. Orders the Federal Republic of Germany to bear its own costs.

Berardis Czúcz Popescu Delivered in open court in Luxembourg on 4 February 2016. [Signatures]

Table of contents

National legal framework The rule governing loss carry-forward The rule governing the forfeiture of losses The restructuring clause Clauses governing hidden reserves and groups of undertakings Facts of the dispute Administrative procedure Contested decision Procedure and forms of order sought Law Admissibility of the action Locus standi within the meaning of the fourth paragraph of Article 263 TFEU The interest in bringing proceedings Substance The first plea, alleging that the measure at issue is not prima facie selective – The first part, alleging an error in the definition of the system of reference – The second part, alleging an error in the assessment of the legal and factual situation of the undertakings requiring restructuring and in the classification of the restructuring clause as a general measure – The third part, alleging infringement of the principle of the protection of legitimate expectations The second plea, relating to justification of the measure at issue on the basis of the nature and general scheme of the tax system Costs

( *1 ) * Language of the case: German.