Case T-486/19: Action brought on 5 July 2019 — Spectris and Spectris Group v Commission
Date: 2019-07-05
Institutions: General Court
Subjects: State aid, United Kingdom, control of State aid, corporation tax, foreign enterprise, freedom to provide services, group of companies, right of establishment, tax avoidance, tax exemption








C_2019312EN.01002901.xml










16.9.2019   


EN


Official Journal of the European Union


C 312/29






Action brought on 5 July 2019 — Spectris and Spectris Group v Commission
(Case T-486/19)
(2019/C 312/25)
Language of the case: English

Parties


Applicants: Spectris plc (Egham, United Kingdom) and Spectris Group Holdings Ltd (Egham) (represented by: C. McDonnell, Barrister, B. Goren and K. Desai, Solicitors, and M. Peristeraki, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






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hold that there has been no unlawful State aid and (i) annul Article 1 of Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, to the extent that it finds that there is unlawful State aid; and (ii) set aside the requirement for the UK to recover from the applicant the alleged unlawful State aid received in this context (Articles 2 and 3 of the contested decision);










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in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover the alleged State aid from the applicants;










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order the defendant to pay the costs.





Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.






1.


First plea in law, alleging that the contested decision is vitiated by manifest errors in the appreciation of the relevant facts and laws.






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In particular, it is argued that the Commission misunderstands the way the UK controlled foreign companies (CFC) rules in question work with respect to the treatment of non-trading financial profits. In addition, the contested decision wrongly construed the group financing exemption (GFE) as a tax exemption.














2.


Second plea in law, alleging that the Commission was wrong to find that the CFC rules constituted an aid measure within the meaning of Article 107(1) TFEU and as such, that the rules conferred a selective advantage on certain operators.






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More precisely, it is argued that the Commission wrongly determined the reference system for the assessment of the effects of the CFC rules, and wrongly identified two different situations as being comparable to the situation where the GFE applies. As a result of either or both of these errors, the Commission was wrong to identify that these rules conferred a selective advantage on certain market operators. Moreover, the Commission wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system, while ignoring other features of the UK corporation tax system intended to work in conjunction with the CFC rules. As a result, the analysis of the Commission on comparability and selectivity is vitiated by manifest errors of appreciation of the relevant facts and errors in law.














3.


Third plea in law, alleging that, even assuming that the CFC measures in question constituted aid in the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply is the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that the said Chapter 9 is never justified in cases where the significant people functions (SPF) test causes a CFC charge to apply. In fact, the SPF test is excessively difficult to apply in practice such that the Commission should have found the said Chapter 9 to be justified in the context of that test as well and hence it should have concluded that there is no State aid.










4.


Fourth plea in law, alleging that, if the contested decision is upheld, enforcement of it through recovery of the alleged State aid from the applicants will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that in the applicants’ case the CFCs in question are situated in other Member States.










5.


Fifth plea in law, the recovery order resulting from the contested decision is unfounded and contrary to fundamental principles of EU law.










6.


Sixth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under Chapter 5 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 could be applied using the SPF test without difficulty or disproportionate burden.










7.


Seventh plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.