Case C-806/23 P: Appeal brought on 29 December 2023 by Renco Valore SpA, Seopult LTD and Grapevine Investimentos e Serviços, Lda (Zona Franca da Madeira) against the order of the General Court (Fifth Chamber) delivered on 18 October 2023 in Cases T-588/22 and T-660/22 Renco Valore and Seopult v Commission (Zona Franca da Madeira)
Date: 2023-12-29
Institutions: Court of Justice
Subjects: Madeira, Portugal, State aid, aid to undertakings, control of State aid, corporation tax, principle of legal certainty, reimbursement of aid, tax exemption, tax relief








C_202403145EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/3145


21.5.2024






Appeal brought on 29 December 2023 by Renco Valore SpA, Seopult LTD and Grapevine Investimentos e Serviços, Lda (Zona Franca da Madeira) against the order of the General Court (Fifth Chamber) delivered on 18 October 2023 in Cases T-588/22 and T-660/22 Renco Valore and Seopult v Commission (Zona Franca da Madeira)


(Case C-806/23 P)

(C/2024/3145)
Language of the case: Portuguese

Parties


Appellants: Renco Valore SpA, Seopult LTD and Grapevine Investimentos e Serviços, Lda (Zona Franca da Madeira) (represented by: A. Gaspar Schwalbach and C. Pinto Xavier, advogados)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court of Justice should, under Articles 263 and 264 TFEU, set aside the order of the General Court of the European Union of 18 October 2023 in Joined Cases T-588/22 and T-660/22, and, consequently:






(i)


annul Articles 1, 4 and 5 of Commission Decision (EU) 2022/1414 (1) of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) [Madeira Free Zone; MFZ] – Regime III; and










(ii)


order the European Commission to pay the costs of the proceedings in their entirety, including those of the appellants.





Grounds of appeal and main arguments



ERROR IN THE APPLICATION OF THE LAW AS REGARDS THE INTERPRETATION OF THE CRITERION CONCERNING ‘ACTIVITIES EFFECTIVELY AND MATERIALLY PERFORMED IN MADEIRA’
               


The General Court erred in law by finding that the Commission correctly interpreted the criterion that ‘profits [must result] from activities effectively and materially performed in Madeira’. The profits of a company registered in the MFZ that are eligible for the tax benefit are not confined to profits arising from activities subject to additional costs associated with remoteness, that is to say, activities performed only in the geographical territory of the Autonomous Region of Madeira (ARM). Having regard to the objectives and context of MFZ Regime III, a correct interpretation of that criterion allows activities relating to companies registered in the MFZ, which have their decision-making centre there, to be regarded as activities effectively and materially performed in Madeira, irrespective of the fact that those companies may have an international activity.


ERROR IN THE APPLICATION OF THE LAW AS REGARDS THE INTERPRETATION OF THE CRITERION CONCERNING ‘JOB MAINTENANCE’
               


The General Court erred in law by finding that the Commission correctly interpreted the ‘job maintenance’ criterion. Since there is no EU concept of ‘job’, and since that concept is not defined in greater detail, for the purposes of applying Regime III, either in the Decisions of 2007 and 2013 or in the 2007 Guidelines, the concept of ‘job’ apparent from the national employment legislation must be accepted as valid. The methodology for defining jobs as ‘FTE’ (Full-Time Equivalent) and ‘ALU’ (Annual Labour Units) does not apply to MFZ Regime III.


INFRINGEMENT OF THE GENERAL PRINCIPLES OF EU LAW OF LEGAL CERTAINTY AND LEGITIMATE EXPECTATIONS


The General Court erred in law by finding that the Commission Decision does not infringe the general principles of EU law of legal certainty and legitimate expectations. In the present specific case, the application of those principles does not authorise the Commission to require the Portuguese national authorities to recover the aid at issue from the beneficiaries and, more specifically, from the appellants.


(1)  
            OJ 2022 L 217, p. 49.


ELI: http://data.europa.eu/eli/C/2024/3145/oj
ISSN 1977-091X (electronic edition)