Case T-836/16: Action brought on 30 November 2016 — Republic of Poland v Commission
Date: 2016-11-30
Institutions: General Court
Subjects: State aid, control of State aid, national tax, principle of proportionality, retail trade








C_2017030EN.01005401.xml










30.1.2017   


EN


Official Journal of the European Union


C 30/54





Action brought on 30 November 2016 — Republic of Poland v Commission
(Case T-836/16)
(2017/C 030/62)
Language of the case: Polish

Parties


Applicant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:






—


annul the decision of the Commission of 19 September 2016 in the case relating to State Aid SA.44351 (2016/C) (ex 2016/NN) — Poland — Polish tax on the retail sector, notified under document C(2016) 5596, and










—


order the European Commission to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.






1.


First plea in law, alleging an incorrect classification of the Polish retail sales tax as State aid within the meaning of Article 107(1) TFEU as the result of a manifestly incorrect assessment of the condition of selectivity.






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The Polish retail sales tax cannot be held to be prima facie selective because, in its design, there are no derogations from the reference system applicable to that tax; the progressive tax rates constitute an inherent element of the reference system of that tax.










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Even if the view were to be taken that the two progressive tax rates are not an element of the reference system applicable to the Polish retail sales tax, it would have to be held that at least the more frequently applied tax rate is an element of the reference system; furthermore, the progressive tax rates do not constitute, in any event, a derogation in favour of certain undertakings which, in the light of the intrinsic objective of that tax, are in a similar factual and legal situation to other undertakings.










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The progressive tax rates and the threshold amounts for the taxable bases in the Polish retail sales tax are, in any event, consistent with the principle of proportionality.














2.


Second plea in law, alleging infringement of Article 13(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union and of the principle of proportionality by the ordering of immediate suspension of the application of the progressive rates of the Polish retail sales tax.






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It was not necessary to issue a suspension injunction given that there were serious doubts as to whether the Polish retail sales tax was selective.










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It was not necessary to issue a suspension injunction in view of the Commission’s failure to demonstrate that the application of the Polish retail sales tax had sufficiently negative effects.














3.


Third plea in law, alleging that the statement of reasons in the contested decision is defective and insufficient.






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The contested decision was not duly and sufficiently justified in so far as it contains an assessment of the condition of selectivity of the Polish retail sales tax.










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The contested decision was not duly and sufficiently justified in so far as it orders the immediate suspension of the application of the progressive rates of the Polish retail sales tax.