Case C-831/21 P: Judgment of the Court (Second Chamber) of 21 September 2023 — Fachverband Spielhallen eV, LM v European Commission, Federal Republic of Germany (Appeal — State aid — Article 107(1) TFEU — Concept of ‘aid’ — Condition relating to selective advantage — Tax treatment of operators of public casinos in Germany — Levy on the profits — Partial deductibility of the amounts paid in respect of that levy from the tax base for income or corporation tax and trade tax — Decision of the European Commission — Rejection of a complaint at the end of the preliminary examination stage on the ground that that deductibility does not constitute State aid — Separate finding of no economic advantage and no selectivity — Action before the General Court of the European Union limited to the finding of no selectivity — Action deemed ineffective — Identification by the Commission of the reference system or ‘normal’ tax system — Interpretation for that purpose of the applicable national tax law — Classification of the levy on the profits as a ‘special tax’ deductible in respect of ‘costs associated with commercial transactions’ — Principle ne ultra petita)
Date: 2023-09-21
Institutions: Court of Justice
Subjects: Germany, North Rhine-Westphalia, State aid, case-law (EU), control of State aid, game of chance, gaming establishment, tax exemption, tax relief, tax system








C_202300624EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/624


13.11.2023





Judgment of the Court (Second Chamber) of 21 September 2023 — Fachverband Spielhallen eV, LM v European Commission, Federal Republic of Germany
(Case C-831/21 P) (1)

(Appeal - State aid - Article 107(1) TFEU - Concept of ‘aid’ - Condition relating to selective advantage - Tax treatment of operators of public casinos in Germany - Levy on the profits - Partial deductibility of the amounts paid in respect of that levy from the tax base for income or corporation tax and trade tax - Decision of the European Commission - Rejection of a complaint at the end of the preliminary examination stage on the ground that that deductibility does not constitute State aid - Separate finding of no economic advantage and no selectivity - Action before the General Court of the European Union limited to the finding of no selectivity - Action deemed ineffective - Identification by the Commission of the reference system or ‘normal’ tax system - Interpretation for that purpose of the applicable national tax law - Classification of the levy on the profits as a ‘special tax’ deductible in respect of ‘costs associated with commercial transactions’ - Principle ne ultra petita)
(C/2023/624)
Language of the case: German

Parties


Appellants: Fachverband Spielhallen eV, LM (represented by: A. Bartosch and R. Schmidt, Rechtsanwälte)

Other parties to the proceedings: European Commission (represented initially by: K. Blanck and B. Stromsky, and subsequently by B. Stromsky, acting as Agents), Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Operative part of the judgment

The Court:






1.


Sets aside the order of the General Court of the European Union of 22 October 2021, Fachverband Spielhallen and LM v Commission (T-510/20, EU:T:2021:745);










2.


Refers the case back to the General Court of the European Union;










3.


Reserves the costs.






(1)  
            OJ C 198, 16.5.2022.


ELI: http://data.europa.eu/eli/C/2023/624/oj
ISSN 1977-091X (electronic edition)