CELEX: 62007CC0519
Language: en
Date: 2009-04-23 00:00:00
Title: Opinion of Mr Advocate General Bot delivered on 23 April 2009. # Commission of the European Communities v Koninklijke FrieslandCampina NV. # Appeal - State aid - State aid scheme implemented by the Netherlands for international financing activities - Decision No 2003/515/EC - Incompatibility with the common market - Transitional provision - Admissibility - Standing to bring proceedings - Interest in bringing proceedings - Principle of protection of legitimate expectations - Principle of equal treatment. # Case C-519/07 P.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 23 April 2009 1(1)
      
      Case C‑519/07 P
      Commission of the European Communities
      v
      Koninklijke Friesland Foods NV
      
      (Appeal – State aid – Tax scheme implemented by the Kingdom of the Netherlands for international financing activities of groups of undertakings
         – Failure to notify the Commission – Commission decision initiating the formal investigation procedure – Commission decision declaring that the scheme constitutes aid incompatible with the common market – Transitional measures – Action brought by an undertaking which is a potential beneficiary of the scheme – Admissibility – Principle of the protection of legitimate expectations – General principle of equal treatment)
      1.        Following the work carried out within the Council of the European Union in 1997 on tax competition between the Member States,
         the Commission of the European Communities went on to examine and re-examine the tax schemes adopted by the Member States
         in the light of the rules of the EC Treaty on State aid.
      
      2.        The Commission thus re-examined the tax scheme implemented by the Kingdom of Belgium in favour of coordination centres. (2) While it had taken the view in 1984, in 1987 and, subsequently, in 1990 that that scheme did not constitute State aid, the
         Commission adopted a decision on 17 February 2003 declaring that scheme to be incompatible with the common market. (3) That decision was the subject of an action for annulment brought before the Court of Justice, judgment in which was given
         on 22 June 2006 in Belgium and Forum 187 v Commission. (4)
      
      3.        At the same time, the Commission examined the tax scheme introduced in 1997 by the Kingdom of the Netherlands concerning international
         financing activities carried on by certain groups of undertakings (the ‘GFA scheme’).
      
      4.        That scheme permits undertakings which have been given an individual authorisation for a period of 10 years to establish reserves
         to cover the risks associated with the exercise of those activities. That scheme was not notified to the Commission prior
         to its implementation, and the Commission decided on 11 July 2001 to initiate the formal investigation procedure provided
         for under Article 88(2) EC.
      
      5.        By decision of 17 February 2003, (5) the Commission took the view that that scheme constituted State aid incompatible with the common market. However, it took
         the view that the beneficiaries of that scheme on the date on which it initiated the formal investigation procedure were entitled
         to rely on a legitimate expectation that the scheme was compatible with the Treaty rules, taking into account the positions
         it had repeatedly adopted on the Belgian tax scheme in 1984, 1987 and 1990. The Commission therefore authorised those undertakings
         to benefit from the GFA scheme until the expiry of their current authorisations and until 31 December 2010 at the latest.
      
      6.        Koninklijke Friesland Foods NV, (6) which is a Netherlands undertaking, brought an action for annulment of the contested decision before the Court of First Instance
         of the European Communities.
      
      7.        By judgment of 12 September 2007 in Koninklijke Friesland Foods v Commission, (7) the Court of First Instance annulled that decision in so far as it excludes from the transitional scheme economic operators
         such as KFF who, as at 11 July 2001, had lodged an application for authorisation on which a decision had not yet been taken
         by the Netherlands tax authority.
      
      8.        The Court is currently seised of the appeal brought by the Commission against that judgment. That appeal essentially raises
         two points of law connected with KFF’s status as a potential beneficiary of the aid scheme and with the fact that that scheme
         was not notified to the Commission.
      
      9.        The first point of law concerns the admissibility of the action for annulment brought by that undertaking against the contested
         decision. The question is whether KFF may be allowed to contest the legality of that decision before the Community Courts
         even though it did not enjoy any acquired right on the date on which the decision was notified.
      
      10.      The second point of law requires the Court to examine the scope of the principle of the protection of legitimate expectations
         in the area of State aid. The question is whether KFF may, on the same basis as the other undertakings benefiting from the
         scheme, rely upon the principle of the protection of legitimate expectations and benefit from transitional measures even though
         that scheme was not notified to the Commission prior to its implementation. The Court is therefore being asked to examine
         whether the conditions which it established in Belgium and Forum 187 v Commission as being applicable to recognition of the existence of an infringement of that principle are fulfilled in this instance.
      
      11.      In this Opinion, I shall propose that the Court declare the appeal to be well founded.
      
      12.      Primarily, I shall submit that, by ruling that KFF is individually concerned by the contested decision, the Court of First
         Instance erred in law in its assessment of the admissibility of the action, which justifies the setting aside of the judgment
         under appeal.
      
      13.      In the alternative, I shall argue that, even assuming that the action brought by KFF is admissible, that judgment must be
         set aside in so far as that undertaking was not entitled to claim infringement of the principle of the protection of legitimate
         expectations.
      
      14.      I shall propose that the Court itself give final judgment on the objection of inadmissibility raised by the Commission and
         uphold that objection.
      
      I –  The Community legal framework
      15.      In the Treaty, State aid is the subject of a prohibition in principle, from which there are a number of derogations. Article
         87(1) EC provides:
      
      ‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever
         which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall,
         in so far as it affects trade between Member States, be incompatible with the common market.’
      
      16.      Article 87 EC then lists, in paragraphs (2) and (3), forms of State aid which are automatically compatible with the common
         market and those which may be considered to be compatible with it.
      
      17.      Article 88 EC provides:
      
      ‘1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those
         States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning
         of the common market. 
      
      2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State
         or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being
         misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined
         by the Commission.
      
      …
      3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter
         aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without
         delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into
         effect until this procedure has resulted in a final decision.’
      
      18.      Finally, Article 89 EC authorises the Council to make regulations for the application of Articles 87 EC and 88 EC. Under that
         authorisation, the Council, on 22 March 1999, adopted Regulation (EC) No 659/1999, (8) which lays down specific rules for the procedures to be followed for the application of Article 88 EC.
      
      II –  The GFA scheme
      19.      The GFA scheme was established by the 1969 Law on Corporation Tax. (9) It was amended by the Law of 13 December 1996, (10) which inserted Article 15b with a view to combating the tendency of internationally active Netherlands undertakings to shelter
         their group financing activities within companies established abroad, and in particular in tax havens. That scheme, as modified,
         entered into force on 1 January 1997.
      
      20.      Article 15b of the 1969 Law permits beneficiary undertakings to establish a reserve to cover risks associated with their international
         financing activities. The scheme is accessible to any undertaking, whether of Netherlands or foreign origin, which pays corporation
         tax, provided that it meets the following conditions laid down by that provision:
      
      –        the beneficiary undertaking must carry on financial activities for the benefit of members of the group established in at least
         four countries or on at least two continents;
      
      –        it must be regularly engaged in the activity of lending and placing funds and must be able to operate independently. That
         activity must be conducted exclusively from the Kingdom of the Netherlands;
      
      –        each of the four countries in which the related members are located must generate at least 5% of the taxable income which
         the company obtains from its financing activities. Each of the two continents must generate at least 10% of that income.
      
      21.      Under Article 15b(10) of the 1969 Law, the tax inspector is to examine applications from undertakings wishing to benefit from
         the provisions of the GFA scheme. The inspector is to grant the right to benefit from the scheme, specifying the conditions
         for its use in the light of the particular situation of the undertaking, by adopting a decision which is open to appeal (‘GFA
         authorisation’). (11)
      
      III –  The factual and procedural background 
      A –    The facts prior to the contested decision
      22.      The GFA scheme was not notified to the Commission prior to its implementation on 1 January 1997.
      
      23.      Following a period of reflection on tax competition between the Member States, the Economic and Financial Affairs Council
         adopted a code of conduct for business taxation. (12) An ad hoc group was set up to assess national tax measures with harmful consequences for the common market.
      
      24.      Following that step, the Commission undertook to develop guidelines on the application of Articles 87 EC and 88 EC to measures
         falling within the scope of direct business taxation. Thus, on 11 November 1998, the Commission adopted a Notice on the application
         of the State aid rules to measures relating to direct business taxation. (13) It was on the basis of that notice that the Commission went on to examine or re-examine the tax schemes in force in the various
         Member States.
      
      25.      On 12 February 1999, the Commission thus asked the Netherlands authorities for information on the GFA scheme. The Netherlands
         authorities replied on 8 March 1999.
      
      26.      On 27 December 2000, KFF applied to the Netherlands tax authority for authorisation to establish a reserve under the GFA scheme
         from 1 January 2000 (the ‘GFA application’). That application was discussed with the tax authority on 24 April 2001.
      
      27.      By letter of 11 July 2001, published in the Official Journal of the European Communities of 31 October 2001, the Commission notified the Kingdom of the Netherlands of its decision to initiate the formal investigation
         procedure pursuant to Article 88(2) EC. (14) Within the framework of its preliminary evaluation of the aid, the Commission expressed its doubts as to the compatibility
         of the GFA scheme with the common market. It stated that the scheme could constitute State aid and did not seem to qualify
         for any of the derogations provided for in Article 87(2) and (3) EC. In accordance with Article 88(2) EC, the Commission invited
         the Kingdom of the Netherlands and the other interested parties to submit their comments within one month.
      
      28.      On 26 July 2001, the Netherlands tax authority informed KFF that the Commission had initiated the formal investigation procedure.
      
      29.      Following the initiation of that procedure, the GFA application by KFF was suspended.
      
      30.      By letter of 3 October 2002, the Kingdom of the Netherlands made to the Commission the representation that, taking into account
         legitimate expectations and the safeguarding of acquired rights, that institution ought to allow undertakings using the GFA
         scheme at that time to continue to benefit from it until the expiry of the authorisations which had been granted.
      
      31.      Finally, on 5 December 2002, the Netherlands State Secretary for Finance adopted a decision to the effect that, from that
         date, the administrative authorities would no longer process any new applications for the GFA scheme.
      
      B –     The contested decision
      32.      On 17 February 2003, the Commission adopted the contested decision.
      
      33.      By that decision, the Commission confirms its doubts regarding the existence of the GFA scheme and the compatibility of that
         scheme with Community law. It states, first, that the scheme constitutes State aid within the terms of Article 87(1) EC and
         sets out the reasons why it takes the view that that scheme does not qualify for any of the derogations provided for in paragraphs
         (2) and (3) of that article.
      
      34.      Next, the Commission examines the legitimate expectation of the beneficiaries of the GFA scheme. It recognises that such an
         expectation exists and states that that expectation justifies it in refraining from ordering recovery of the aid granted.
      
      35.      Recitals 111 and 112 of the contested decision are worded as follows:
      
      ‘…
      In the present case the Commission notes that, although the Belgian and Dutch schemes are not completely identical, the GFA
         scheme nevertheless has similarities with the scheme introduced in Belgium by Royal Decree No 187 of 30 December 1982 dealing
         with the tax treatment of coordination centres. Both of the measures concern intra-group activities and a significant number
         of beneficiaries of the GFA scheme had previously made use of the Belgian [coordination centres] scheme. In its decision of
         2 May 1984, the Commission ruled that the Belgian scheme was not aid within the meaning of Article [87(1) EC]. Even if this
         decision was not published, it should be noted, as the Dutch authorities and interested parties have stressed, that it was
         stated in the 14th Competition Report and in an answer to a parliamentary question [(15)] that the Commission had not lodged any objections to the scheme in question.
      
      In this context, the Commission points out that its decision on the Belgian scheme was adopted before the GFA scheme entered
         into force. It also notes that all beneficiaries of the GFA scheme were recognised as such before the Commission decided to
         institute the formal investigation procedure. The Commission therefore accepts the arguments put forward by the Dutch authorities
         and interested parties to the effect that the beneficiaries had a legitimate expectation and will refrain from ordering recovery
         of the aid.’
      
      36.      Finally, the Commission examines the reasons why it finds it necessary to provide for a transitional period until the effects
         of the GFA scheme have been extinguished. It draws a distinction between two situations.
      
      37.      As regards the fate of the reserves already constituted by the beneficiary undertakings under the GFA scheme, the Commission
         finds that those reserves form part of a long-term strategy and that the advantages associated with them are safeguarded on
         the basis of legitimate expectation. Consequently, it takes the view that those beneficiary undertakings may continue to use
         their reserves under existing Netherlands law. (16)
      
      38.      With regard to the establishment of new reserves, the Commission points out that, in principle, the principles of the protection
         of legitimate expectation and legal certainty may no longer be relied on after a decision declaring aid to be incompatible
         with the common market. In this regard, it states that the effects of legitimate expectation cannot last beyond a reasonable
         period required for the Member State and the undertakings concerned to adapt to the new situation. In the case at issue, the
         Commission takes note of the context in which the procedure was initiated and in particular of the progress already made at
         Community level to combat harmful tax competition. It also takes account of the announcement of the abolition of the GFA scheme
         with effect from December 2002 and hence of the fact that the number of beneficiaries of that scheme will diminish gradually
         in the run-up to 2010. (17)
      
      39.      In recital 118 of the contested decision, the Commission therefore states as follows:
      
      ‘In view of these exceptional circumstances, the Commission considers that the companies benefiting from the GFA scheme when
         this procedure was initiated can continue to constitute new reserves or to continue to use existing reserves in accordance
         with the GFA scheme’s implementing provisions while the current provisions remain in force and until 31 December 2010 at the
         latest.’
      
      40.      The Commission draws the following conclusion from the foregoing:
      
      ‘(119) The Commission finds that the Kingdom of the Netherlands has unlawfully implemented the aid in breach of Article 88(3)
         [EC]. It regards the GFA scheme as incompatible with the common market. However, in view of the beneficiaries’ legitimate
         expectation and the exceptional circumstances described above, there are no grounds for proceeding with recovery of the aid
         and the scheme can be maintained until 31 December 2010’.
      
      41.      The operative part of the contested decision is worded as follows:
      
      ‘Article 1
      The aid scheme implemented by the [Kingdom of the] Netherlands pursuant to Article 15b of the 1969 Corporate Tax Act and put
         into effect by the Law of 13 December 1996 is incompatible with the common market.
      
      Article 2
      The [Kingdom of the] Netherlands shall terminate the scheme referred to in Article 1. The companies covered by this scheme
         as at 11 July 2001 may continue to benefit from it until the end of the 10-year period granted to them by the Dutch tax authorities.
         In any event, implementation of the scheme shall be terminated by 31 December 2010 at the latest.
      
      …’.
      C –    The facts subsequent to the contested decision
      42.      By letter of 11 April 2003, the Kingdom of the Netherlands, inter alia, asked the Commission to confirm in writing that the
         transitional scheme provided for in Article 2 of the contested decision also applied to undertakings which, although not the
         subject of a decision of the Netherlands tax authority permitting them to join the GFA scheme, had made an application to
         that effect prior to 5 December 2002, the date from which any new application for GFA authorisation would be refused, in so
         far as those undertakings satisfied the conditions of the scheme on 11 July 2001.
      
      43.      In a letter of 7 July 2003, the Commission stated that it was clear from recital 118 of the contested decision and from Article
         2 of that decision that the transitional scheme did not apply to those undertakings. It also stated that, if the Netherlands
         authorities decided to grant GFA authorisation to those undertakings, this would be tantamount to the grant of new aid contrary
         to the contested decision.
      
      44.      On 21 August 2003, the Netherlands tax authority rejected KFF’s GFA application on the basis of the contested decision.
      
      45.      Article 15b of the 1969 Law was repealed by Article 1, Section D, of the Law of 15 September 2005. (18)
      
      46.      Article 2 of the latter Law provides essentially that that article and the provisions flowing from it are to remain applicable
         to taxpayers liable to corporation tax who, on 11 July 2001, met the conditions attached to the scheme provided for in Article
         15b of the 1969 Law. It also provides that that transitional provision is to apply for a period of 10 years from the date
         on which the taxpayer was able to establish a reserve, which period may not extend beyond 31 December 2010.
      
      IV –  The action before the Court of First Instance and the judgment under appeal
      47.      By application of 10 October 2003, KFF brought an action for annulment of the contested decision before the Court of First
         Instance.
      
      48.      By a document lodged with the Registry of the Court of First Instance on 14 January 2004, the Commission raised a plea of
         inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. KFF lodged observations on
         that plea on 29 March 2004. By order of the Court of First Instance of 28 February 2005, the decision on that plea and the
         decision on costs were reserved for the final judgment.
      
      49.      By the judgment under appeal, the Court of First Instance held that the action brought by KFF was admissible. It also found
         that the action was well founded and annulled Article 2 of the contested decision in so far as it excludes from the transitional
         scheme which it lays down those traders who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for
         application of the aid scheme in question but on whose request a decision had not yet been taken by that date.
      
      V –   The procedure before the Court of Justice and the forms of order sought by the parties
      50.      Pursuant to Article 56 of the Statute of the Court of Justice, the Commission brought an appeal against the judgment under
         appeal by application lodged with the Court Registry on 22 November 2007.
      
      51.      The Commission claims, primarily, that the Court should declare the present appeal to be well founded and, consequently, set
         aside the judgment under appeal, dismiss the action for annulment brought by KFF and order the latter to pay the costs of
         the proceedings before both Courts.
      
      52.      In the alternative, the Commission asks the Court to set aside the judgment under appeal in so far as it grants rights to
         traders other than KFF who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for application of
         the GFA scheme, and to dismiss the action for annulment of the contested decision in so far as it is intended to grant rights
         to undertakings other than KFF.
      
      53.      KFF contends that the appeal should be dismissed and the Commission ordered to pay the costs.
      
      VI –  Examination of the appeal
      A –    The first plea, alleging misconstruction of the condition relating to individual interest on the part of KFF
      1.      Arguments of the parties
      54.      The Commission submits that the Court of First Instance erred in holding that KFF was individually concerned by the contested
         decision within the meaning of the fourth paragraph of Article 230 EC and the Court’s case-law.
      
      55.      It claims in this regard that the Court of First Instance committed an error of law in basing its analysis on Belgium and Forum 187 v Commission and in treating the situation of KFF in the same way as that of economic operators who, in that case, were applying to have
         their authorisations renewed. In the Commission’s view, those two situations are not comparable in so far as KFF has never
         benefited from the GFA scheme. Contrary to the findings of the Court of First Instance in paragraph 100 of the judgment under
         appeal, KFF is not therefore ‘specifically’ affected by the contested decision but is affected in exactly the same way as
         the other Netherlands undertakings which have never benefited from that scheme.
      
      56.      KFF submits that that plea is inadmissible. It takes the view that the question whether the difference between an initial
         application for recognition and an application for renewal is relevant in determining whether it forms part of a restricted
         group is a question of fact which the Court may not examine in the context of an appeal.
      
      2.      Assessment
      57.      The contested decision, in accordance with Article 4 thereof, is addressed solely to the Kingdom of the Netherlands. Natural
         or legal persons, such as KFF, who wish to bring an action for annulment of that decision must therefore fulfil the conditions
         laid down in the fourth paragraph of Article 230 EC. They must accordingly demonstrate that that decision is of direct and
         individual concern to them.
      
      58.      If they are unable to demonstrate that they fulfil those conditions, the action brought against the contested decision will
         be inadmissible.
      
      59.      In the case at issue, the Court is asked to examine whether KFF, whose application for authorisation was pending on the date
         on which the contested decision was notified, is individually concerned by that decision within the meaning of the fourth
         paragraph of Article 230 EC and Community case-law.
      
      60.      The issue is therefore whether, according to the criteria set out by the Court in Plaumann v Commission (19) and since confirmed by settled case-law, KFF is affected by the contested decision by reason of certain attributes which
         are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and by virtue of those
         factors is individually distinguished just as in the case of the persons to whom that decision is addressed. (20)
      
      61.      That case-law has been applied and refined by the Court in the particular area of State aid. Thus, the Court has repeatedly
         held that, in that field, an undertaking cannot contest a Commission decision prohibiting a sectoral aid scheme if that undertaking
         is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of
         the scheme. (21)
      
      62.      In such a situation, the undertaking cannot be affected by the Commission decision in the same way as an undertaking which
         does in fact benefit from the scheme in question and which could be required to reimburse the aid illegally paid by the Member
         State.
      
      63.      That line of reasoning forms part of the settled case-law to the effect that an undertaking is allowed to contest the legality
         of a Community measure when that measure alters rights acquired by that undertaking prior to its adoption. (22)
      
      64.      Thus, even though an undertaking belongs to a restricted group of economic operators, as is the case of KFF and the thirteen
         other undertakings which applied to the Netherlands tax authority for authorisation, that is not sufficient for it to be recognised
         as being individually concerned by the contested measure. That undertaking must also have a legally protected right permitting
         it to be distinguished in the same way as the addressee of that decision would be, in accordance with the case-law deriving
         from Plaumann v Commission.
      
      65.      KFF clearly does not have any right acquired prior to the adoption of the contested decision. It was not a beneficiary of
         the GFA scheme on the date on which that decision was adopted and it was given no guarantee to that effect by the Netherlands
         tax authority. In those circumstances, although it belongs to a closed group of taxpayers, KFF cannot be affected by the contested
         decision in the same way as the other undertakings which are beneficiaries of the GFA scheme, some of which will have the
         duration of their authorisation extended until 31 December 2010.
      
      66.      KFF’s situation is therefore very different from that of the Belgian coordination centres at issue in Belgium and Forum 187 v Commission, as the latter were already beneficiaries of the scheme in question and were applying for renewal of the authorisations which
         had been granted to them. The decision at issue in that case did therefore relate to a situation which existed at the time
         at which it was adopted and called into question the enjoyment of the rights acquired by the coordination centres in respect
         of future operations.
      
      67.      That is why I take the view that, in ruling that KFF was individually concerned by the contested decision, the Court of First
         Instance committed an error of law in its assessment of the admissibility of the action which justifies the setting aside
         of the judgment under appeal.
      
      68.      Consequently, I propose that the Court declare the first plea raised by the Commission to be well founded and set aside the
         judgment under appeal in so far as the Court of First Instance declared the action for annulment of the contested decision
         brought by KFF to be admissible.
      
      69.      Should the Court not follow my proposal and instead take the view that KFF is individually concerned by the contested decision
         and, moreover, that it has an interest in bringing proceedings, I shall set out the reasons why I consider that, in any event,
         the appeal remains well founded.
      
      70.      I shall examine two pleas which I consider capable of rendering the judgment under appeal invalid in this regard, namely that
         alleging infringement of the principle of the protection of legitimate expectations and that alleging infringement of the
         principle of equal treatment.
      
      B –    In the alternative, the second plea, alleging infringement of the principle of the protection of legitimate expectations
      71.      Article 2 of the contested decision grants a transitional period to the undertakings which were beneficiaries of the GFA scheme
         when the Commission initiated the formal aid investigation procedure on 11 July 2001. The Commission took as its basis the
         legitimate expectation of those undertakings that that scheme was compatible with the rules of the Treaty and the particular
         circumstances of the case. (23)
      
      72.      In the judgment under appeal, the Court of First Instance held that, in so doing, the Commission had infringed the principle
         of the protection of legitimate expectations by failing to provide a transitional measure for taxpayers, such as KFF, whose
         application for authorisation was still pending at the time at which the contested decision was notified.
      
      73.      Before embarking on an examination of this plea, and in order better to evaluate the manner in which the Court of First Instance
         considered it in the judgment under appeal, I feel it is important, first of all, to recall the substance of that principle
         in the light of the Community case-law.
      
      1.      The Court’s case-law on the principle of the protection of legitimate expectations
      74.      The principle of the protection of legitimate expectations is a general principle of Community law which may be used to verify
         the legality of acts of the institutions. (24)
      
      75.      As Advocate General Léger stated in his Opinion in Belgium and Forum 187 v Commission, (25) that principle can be seen as the corollary of the principle of legal certainty, which requires that Community legislation
         must be certain and its application foreseeable by individuals, in the sense that it seeks, where a rule is altered, to ensure
         the protection of situations legitimately entered into by one or more natural or legal persons in particular. (26)
      
      76.      In the light of the application of the principle of the protection of legitimate expectations in the Court’s case-law, Advocate
         General Léger noted that that principle is considered to have been infringed when the following conditions are satisfied.
      
      77.      First of all, there must be an act or conduct on the part of the Community administration capable of having given rise to
         a well-founded expectation. According to the case-law, the principle of the protection of legitimate expectations may be invoked
         against a Community act only to the extent to which the Community itself has previously created a situation which could give
         rise to such an expectation. (27) Moreover, the Community administration must provide specific assurances. (28)
      
      78.      Second, that expectation must be legitimate, that is to say, the person concerned must not have been able to foresee the change
         to the line of conduct previously adopted by the administration. According to the case-law, if a prudent and circumspect trader
         could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead the principle of the
         protection of legitimate expectations if the measure is adopted. (29) The expectation to which the measure or the conduct of the Community administration gives rise is therefore ‘legitimate’,
         and must accordingly be protected, in the case where the person concerned could reasonably count on the continuation or the
         stability of the situation thus created, in the same way as any ‘prudent and circumspect’ trader.
      
      79.      Third, the Community interest pursued by the contested measure must not preclude the adoption of transitional measures necessary
         to protect the legitimate expectation of the party concerned. That condition is satisfied where the balancing of the interests
         in issue shows that, in the circumstances of the case, the Community interest does not prevail over that of the person concerned
         in the continuation of the situation that it was legitimately entitled to regard as stable. (30)
      
      80.      It should also be stated that those three conditions are cumulative.
      
      81.      It was by reference to those three conditions that the Court of First Instance examined whether, and confirmed that, KFF was
         justified in seeking application of the principle of the protection of legitimate expectations.
      
      2.      Arguments of the parties
      82.      The Commission submits a number of arguments in support of this plea.
      
      83.      First, the Commission criticises the fact that, in paragraphs 125 and 126 of the judgment under appeal, the Court of First
         Instance held that it is not relevant whether or not KFF was a beneficiary of the GFA scheme or whether it satisfied the conditions
         of eligibility for the scheme for the purpose of assessing whether it had a legitimate expectation.
      
      84.      Second, the Commission calls into question the assessment by the Court of First Instance in regard to the examination of the
         three conditions required for recognition of the existence of a legitimate expectation on the part of KFF.
      
      85.      As regards the first condition, relating to the existence of an expectation, the Commission points out that it never gave
         specific assurances to KFF as to the compatibility of the GFA scheme with the common market.
      
      86.      It recognises that the positions which it repeatedly adopted in respect of the Belgian tax regime may indeed have given rise
         to a ‘degree of expectation’. However, this does not constitute a specific commitment to KFF but only a decision on a separate,
         slightly similar aid scheme. The Commission also states that it was unaware that KFF even existed, as that undertaking had
         not made itself known to the Commission in the context of the procedure laid down in Article 88(2) EC.
      
      87.      As regards the second condition, concerning the legitimacy of that expectation, the Commission submits that KFF did not act
         as a prudent and circumspect trader.
      
      88.      In the first place, unlike some of the coordination centres involved in Belgium and Forum 187 v Commission, KFF was never granted authorisation.
      
      89.      Second, even assuming that KFF did in fact undertake substantial investments in order to satisfy the conditions of eligibility
         for the GFA scheme, it did not submit its application for authorisation until 27 December 2000. In the Commission’s view,
         a prudent and circumspect trader ought to have been aware, well before 1 January 2000, that the Commission was liable to classify
         the GFA scheme as State aid incompatible with the common market. In that regard, the Commission refers to the Resolution of
         1 December 1997 of the Council and the representatives of the Governments of the Member States, meeting within the Council,
         on a code of conduct for business taxation. It also refers to its Notice of 11 November 1998 on the application of the State
         aid rules to measures relating to direct business taxation. In addition, it points to a press release of 23 February 2000
         containing a statement by the European Competition Commissioner, Mr Monti. (31)
      
      90.      Finally, the Commission takes issue with paragraph 134 of the judgment under appeal, according to which the Commission invited
         the interested parties to submit comments on any legitimate expectation which would preclude recovery of the sums paid. The
         Commission points out that that argument does not relate to an undertaking such as KFF, which has never received aid under
         the GFA scheme.
      
      91.      As regards the third condition, concerning the balancing of interests, the Commission criticises the reasoning of the Court
         of First Instance only for the sake of completeness. In its view, paragraph 139 of the judgment under appeal is vitiated by
         failure to state grounds and by an error of fact.
      
      92.      First, it contends, the Court of First Instance does not explain why there is no public interest preventing KFF from relying
         on the principle of the protection of legitimate expectations. According to the Commission, the fact that it granted a transitional
         arrangement to the actual beneficiaries of the GFA scheme does not lend validity to the reasoning of the Court of First Instance
         as that arrangement was based on a progressive reduction in the number of applicants.
      
      93.      Next, the Commission submits that the analysis carried out by the Court of First Instance tends to call into question the
         effectiveness of the formal investigation procedure laid down in Article 88(2) EC. According to the Court of First Instance,
         potential beneficiaries of the GFA scheme could seek to benefit from transitional measures solely on the ground that they
         had applied for authorisation, even though they had not made themselves known during the formal aid investigation procedure.
      
      94.      The Commission then criticises the reference to Belgium and Forum 187 v Commission, in particular to paragraph 165 thereof, as that case concerned the renewal of an authorisation.
      
      95.      Third, the Commission submits that the Court of First Instance committed an error of fact by maintaining, in paragraph 139
         of the judgment under appeal, that the actual beneficiaries of the GFA scheme may continue to benefit from it ‘until 2010’.
         In that connection, the Commission refers to the precise wording of Article 2 of the contested decision.
      
      96.      Fourth, the Commission criticises the fact that, in paragraphs 141 to 143 of the judgment under appeal, the Court of First
         Instance took the view that the issue of whether or not the Commission was actually aware of the specific situation of KFF
         on 11 July 2001 was not relevant for the purpose of assessing whether the principle of the protection of legitimate expectations
         had been infringed.
      
      97.      In its view, such reasoning is contrary to Community case-law to the effect that the legality of a decision on State aid may
         be assessed only on the basis of the information available to the Commission at the time when it adopted that decision. In
         the present case, the Commission submits that it was never aware of the specific situation of KFF, since the latter had never
         submitted comments to the Commission. According to that institution, the Court of First Instance ought for that reason to
         have verified whether it did in fact possess that item of information and, if not, should have declared any plea or argument
         based on that item of information to be inadmissible.
      
      98.      The Commission adds that, under the system for the supervision of State aid, a potential beneficiary may not raise arguments
         based on a factual situation of which the Commission was unaware if it did not make itself known to the Commission within
         the framework of Article 88(2) EC.
      
      99.      KFF submits, first, that there is nothing in the case-law to support the view that the protection of legitimate expectations
         must be founded solely on actual commitments given by a Community institution. KFF also points to contradictions in the Commission’s
         defence. While the Commission states in the contested decision that the decision on compatibility which it adopted in respect
         of the Belgian tax regime gave rise to a legitimate expectation on the part of the beneficiaries of the GFA scheme, it submits
         in its application that that decision relates to a ‘slightly similar’ scheme and that it does not constitute a specific commitment
         to KFF.
      
      100. KFF then goes on to criticise the Commission’s arguments to the effect that it was not a prudent and circumspect trader. It
         compares its situation to that of the beneficiaries of the Belgian tax scheme in Belgium and Forum 187 v Commission. KFF fails to see why those beneficiaries, pending a reply to their application to have their authorisation renewed, were
         prudent and circumspect traders whereas it, pending a reply to its application for GFA authorisation, is not. KFF further
         submits that the initiation of the formal investigation procedure on 11 July 2001 could not cause its legitimate expectation
         to disappear on that date. Furthermore, as regards the balancing of interests, the fact that the legitimate expectation is
         ‘very general in nature’ is irrelevant. Where the legitimate expectation has been established, irrespective of the means by
         which the Commission has created it, the interest of the undertakings in question should be balanced against the Community
         interest. In any event, KFF submits that the Commission has failed to put forward any argument capable of precluding the granting
         of a transitional scheme to fourteen other undertakings.
      
      101. KFF adds, finally, that the Commission does not need to have individual information on undertakings which, like KFF, were
         ‘beneficiaries of the GFA scheme’. According to KFF, the Commission should have realised that applications for authorisation
         might still be pending, given the way in which the scheme actually operates. In those circumstances, the question whether
         KFF lodged comments with the Commission pursuant to the procedure laid down in Article 88(2) EC is irrelevant to the examination
         of this plea.
      
      3.      Assessment
      102. I take the view that the second plea raised by the Commission is well founded. To my mind, the Court of First Instance erred
         in law in accepting that KFF had a legitimate expectation that the GFA scheme was compatible with the Treaty rules.
      
      a)      The existence of an expectation
      103. In the judgment under appeal, the Court of First Instance accepted that the Commission’s conduct in relation to the Belgian
         tax scheme created an expectation that the GFA scheme was compatible with the common market.
      
      104. The Court of First Instance took as its basis the reasons set out by the Commission in recitals 111 and 112 of the contested
         decision, in which the latter accepts the existence of a legitimate expectation on the part of the beneficiaries of the GFA
         scheme, regard being had to the positions which it had taken with regard to the Belgian tax scheme.
      
      105. It seems to me that the assessment of that first condition by the Court of First Instance is incorrect. In my view, there
         can be no act or conduct on the part of the Commission capable of creating that expectation in a situation such as that here
         in issue, where the GFA scheme was not the subject of prior notification, contrary to the procedural rules laid down in Article
         88(3) EC.
      
      106. It follows from settled case-law that an economic operator may entertain and rely upon a legitimate expectation that aid is
         lawful only if that aid has been granted in compliance with the procedure laid down for that purpose and, in particular, with
         the powers attributed to the Commission. (32) In this regard, the Court takes the view that a diligent trader should normally be able to determine whether that procedure
         has been followed. (33)
      
      107. That case-law is based on the mandatory nature of State aid supervision and on the need to guarantee the efficacy of the preventive
         supervision exercised by the Commission. That supervision is based on the obligation to notify such aid, which the Court classifies
         as a ‘central element’. (34) That obligation enables the Commission to monitor the common market in accordance with the objectives pursued by the Treaty.
         That obligation has in particular the objective of eliminating any doubt as to whether a national measure does or does not
         amount to State aid within the meaning of Article 87(1) EC. It is therefore common ground that the purpose of the obligation
         to notify State aid is legal certainty and it must therefore be rigorously observed. (35)
      
      108. Thus, in so far as a Member State has not taken the precaution of notifying the Commission of aid which it plans to implement,
         it, like the undertakings benefiting from that aid, cannot count on the aid being compatible with Community law. Any expectation
         on which an economic operator such as KFF might rely cannot therefore be founded on a specific assurance.
      
      109. Consequently, and in so far as implementation of the GFA scheme was not notified, in any form whatsoever, to the Commission,
         notwithstanding the clear and unconditional character of that obligation, I consider that KFF is unjustified in claiming that
         the principle of the protection of legitimate expectations has been infringed.
      
      110. To take the opposite view would, in my opinion, be tantamount to calling into question the very principle of the obligation
         to notify laid down in Article 88(3) EC.
      
      111. In this regard, I consider it important to point out that the principle of the protection of legitimate expectations, important
         though it may be, cannot be applied in an absolute manner and its application must be combined with that of the principle
         of legality. While observance of the principle of the protection of legitimate expectations imposes a number of obligations
         on the Community institutions, it also requires compliance by the Member States with the obligations laid down in the Treaty
         and a degree of diligence on the part of the traders concerned. That was not the situation in the present case.
      
      112. Nor can that expectation be founded on a decision on compatibility which the Commission adopted in respect of a separate tax
         scheme implemented by another Member State.
      
      113. Although the Commission took the view in 1984 that the Belgian tax scheme did not constitute State aid, that decision can
         relate only to the scheme applicable to the Belgian coordination centres as it was addressed to the Kingdom of Belgium alone.
         Moreover, although that scheme has features in common with the scheme at issue in the present case, the fact remains that
         a reading of the contested decision indicates that their similarity remains open to debate. While the Commission states in
         recital 111 of the contested decision that ‘the GFA scheme ... has similarities with the scheme introduced in Belgium’, it
         states in recital 101 of the same decision that ‘the fact that they are not identical cannot be denied in view of the techniques
         used and the form in which the benefits were granted’.
      
      114. In those circumstances, I find it difficult to accept that the Commission may have given KFF specific assurances capable of
         supporting an expectation that the GFA scheme was compatible with Community law. Basing that expectation on a decision which
         the Commission adopted in respect of a separate national tax scheme is a further breach of the obligation to notify laid by
         down by the Treaty and of the entire system of preventive supervision established by the Commission within the framework of
         State aid supervision.
      
      115. In the light of all of the foregoing, I take the view, contrary to the finding of the Court of First Instance, that there
         is no basis for the expectation on which KFF relies in the present case.
      
      116. I would add that such an expectation, if it did exist, would not in any event be legitimate.
      
      b)      The legitimacy of the expectation
      117. Contrary to the findings made by the Court of First Instance in paragraphs 132 to 138 of the judgment under appeal, I take
         the view that the second condition required by the case-law for recognition of an infringement of the principle of the protection
         of legitimate expectations is likewise not satisfied, for two reasons.
      
      118. First, I would point out that KFF has no acquired right as it is not an undertaking benefiting from the GFA scheme. It has
         not demonstrated that it satisfied the conditions of eligibility for that scheme and the Kingdom of the Netherlands did not
         give it any guarantee that it would obtain GFA authorisation.
      
      119. Second, I consider that, had it been a prudent and circumspect trader, KFF would have been able to foresee the adoption of
         a Community measure liable to affect its interests.
      
      120. After all, on 11 July 2001, the Commission adopted a decision by which it initiated the formal aid investigation procedure.
         As the Court of First Instance points out in paragraph 133 of the judgment under appeal, the initiation of that procedure
         indicated that the Commission had serious doubts as to the compatibility of the GFA scheme with the Treaty rules. It is true,
         as the Court of First Instance states, that those serious doubts do not imply any definitive classification of that scheme.
         None the less, in a case such as the present, in which the GFA scheme was not notified to the Commission, I consider the existence
         of serious doubts as to the compatibility of that scheme to be sufficient to support the conclusion that the expectation on
         which KFF relies is not legitimate.
      
      121. I also take the view that the grounds set out in the decision of 11 July 2001 were capable of enabling KFF to consider it
         sufficiently likely that the Commission would declare that the GFA scheme constituted aid incompatible with the Treaty. (36) Following an initial examination of the elements of that scheme, the Commission stated that it could constitute State aid
         and that it did not appear to qualify for any of the derogations provided for in Article 87(2) and (3) EC.
      
      122. Furthermore, I would add that this case is not readily comparable to Belgium and Forum 187 v Commission. There are two major differences between those two cases, one relating to KFF’s status as a potential beneficiary and the
         other to the failure to notify the GFA scheme to the Commission.
      
      123. On the one hand, as I have indicated, KFF never received GFA authorisation, unlike the Belgian coordination centres at issue
         in Belgium and Forum 187 v Commission, which were applying to have their authorisations renewed. In the present case, the Netherlands tax authority never confirmed
         that KFF satisfied the conditions of eligibility for authorisation and could therefore be regarded as a beneficiary of the
         GFA scheme.
      
      124. On the other hand, the Kingdom of the Netherlands did not take the precaution of informing the Commission of the tax scheme
         which it planned to implement. The Commission has therefore never adopted a position on the compatibility of that scheme with
         the Treaty rules, unlike in the case of the tax scheme implemented by the Belgian authorities. The latter scheme had been
         duly notified by the Kingdom of Belgium, in accordance with Article 88(3) EC. The Commission had at that time stated in its
         1984 and 1987 decisions and in the reply given by Mr Brittan, Competition Commissioner, on behalf of the Commission on 24 September
         1990 to Written Question No 1735/90 from Mr Gijs de Vries, a Member of the European Parliament, (37) that that scheme did not come within the scope of Article 87(1) EC.
      
      125. Finally, it is important to state that in Belgium and Forum 187 v Commission the legitimate expectation of the coordination centres was accepted only under very restrictive conditions and in the light
         of the particular features of that case. It is therefore very difficult, in my view, to recognise KFF as having a legitimate
         expectation that the GFA scheme is compatible with the Treaty rules when it is not an undertaking benefiting from that scheme
         and that scheme was not notified beforehand to the Commission.
      
      126. In my opinion, the foregoing factors are sufficient to support the finding that the expectation on which KFF relies, if it
         exists, is not in any event legitimate.
      
      127. Consequently, and in so far as the three conditions referred to by the case-law as being applicable to recognition of an infringement
         of the principle of the protection of legitimate expectations are cumulative, I take the view that KFF is not entitled to
         rely on that principle.
      
      128. In the light of all of the foregoing, I consider that the Court of First Instance also erred in law in finding that KFF was
         entitled to invoke the principle of the protection of legitimate expectations. If the Court were to hold the action brought
         by KFF to be admissible, the second plea raised by the Commission should then, in my view, be declared well founded and the
         judgment under appeal accordingly set aside.
      
      C –    In the alternative, the third plea, alleging infringement of the principle of equal treatment
      129. Article 2 of the contested decision grants a transitional period to the undertakings which were beneficiaries of the GFA scheme
         on 11 July 2001, taking into account the legitimate expectation on the part of those undertakings that that scheme was compatible
         with the Treaty rules and the particular circumstances of the case. (38)
      
      130. In the judgment under appeal, the Court of First Instance held that, in so doing, the Commission infringed the general principle
         of equal treatment by failing to provide any transitional measure for taxpayers, such as KFF, whose application for authorisation
         was still pending when the contested decision was notified. The Court of First Instance started from the principle that those
         taxpayers, in the same way as all undertakings which had GFA authorisation on 11 July 2001, were entitled to entertain a legitimate
         expectation that they would be granted a reasonable transitional period.
      
      1.      Arguments of the parties
      131. In support of the third plea, the Commission submits that the assessment carried out by the Court of First Instance in relation
         to the infringement of the principle of equal treatment is incorrect. (39) It claims essentially that KFF cannot be treated in the same way as undertakings which not only actually benefited from the
         GFA scheme but also submitted comments within the framework of the procedure under Article 88(2) EC and for which the Netherlands
         authorities requested a transitional arrangement.
      
      132. KFF submits that this plea is inadmissible in so far as it relates to issues of fact which are not amenable to review by the
         Court of Justice on appeal.
      
      133. It argues that that plea is not, in any event, well founded. The only relevant question in this case, it submits, is whether
         there are any significant objective differences justifying a difference in treatment between KFF and the undertakings which,
         on 11 July 2001, already had GFA authorisation. It finds that none of the alleged differences put forward by the Commission
         is capable of justifying such a difference in treatment.
      
      2.      Assessment
      134. Contrary to KFF’s submissions, I propose that the Court find the third plea to be admissible. While it is true that the Court
         of First Instance has exclusive jurisdiction to find and assess the facts, it follows from settled case-law that the Court
         of Justice has jurisdiction to review the legal characterisation of those facts by the Court of First Instance and the legal
         conclusions which it has drawn from them. (40)
      
      135. In raising that plea, the Commission asks the Court to review the legal inferences which the Court of First Instance was able
         to draw with respect to the comparability of the situations in which the various undertakings find themselves and with respect
         to observance of the principle of equal treatment.
      
      136. In the light of the foregoing submissions, I consider that plea to be likewise well founded.
      
      137. It is settled case-law that the general principle of equal treatment requires that comparable situations must not be treated
         differently and that different situations must not be treated in the same way unless such difference in treatment is objectively
         justified. (41)
      
      138. It seems clear to me that KFF cannot be treated in the same way as those undertakings which, on 11 July 2001, were already
         benefiting from the GFA scheme. As I have indicated, KFF, as a potential beneficiary of that scheme, has no acquired right
         and cannot rely on any legitimate expectation, in contrast to the aforementioned group of undertakings. As the Commission
         stresses, that fact therefore places KFF in a very specific position.
      
      139. The assessment made by the Court of First Instance, which is based on the converse premiss that KFF could legitimately rely
         on the principle of legitimate expectations, therefore appears to me to be incorrect.
      
      140. Consequently, if the Court were to find the action brought by KFF to be admissible, then the third plea, alleging infringement
         of the principle of equal treatment, should in my opinion be declared well founded and the judgment under appeal accordingly
         set aside.
      
      141. In the light of all of the foregoing, I ask the Court, in the alternative, to declare the appeal brought by the Commission
         to be well founded and to set aside the judgment under appeal in so far as the Court of First Instance held that that institution
         infringed the principles of the protection of legitimate expectations and of equal treatment by failing to provide transitional
         measures for taxpayers whose application was still pending when the contested decision was notified. (42)
      
      VII –  The consequences of setting aside the judgment under appeal
      142. As I have indicated, I propose, primarily, that the Court should set aside the judgment under appeal in so far as the Court
         of First Instance declared the action for annulment brought by KFF to be admissible.
      
      143. In so far as the state of proceedings permits, which, in my view, it does, I also propose that the Court should, in accordance
         with the first paragraph of Article 61 of its Statute, itself give final judgment on the objection of inadmissibility raised
         by the Commission.
      
      144. For the reasons which I have already set out in points 57 to 68 of this Opinion, I take the view that the action brought by
         KFF must be declared inadmissible, in the absence of any individual interest on its part.
      
      VIII –  Costs
      145. Under Article 69(2) of the Rules of Procedure, applicable to proceedings on appeal by virtue of Article 118 of those Rules,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         In the present case, as the Commission has claimed that KFF should be ordered to pay the costs and as KFF has been unsuccessful
         in most of its pleas, it is appropriate, in my view, to order KFF to pay the costs incurred in the present appeal proceedings.
      
      146. Moreover, Article 122 of the Rules of Procedure provides that, where the appeal is well founded and the Court itself gives
         final judgment in the case, the Court is to make a decision as to costs. In this case, examination of the objection of inadmissibility
         raised by the Commission before the Court of First Instance has shown that the action for annulment brought by KFF is inadmissible.
      
      147. In those circumstances, it is appropriate to order KFF to pay the costs relating both to the present proceedings and to those
         brought before the Court of First Instance.
      
      IX –  Conclusion
      148. In the light of all of the foregoing, I propose that the Court rule as follows:
      
      (1)      The judgment of the Court of First Instance of the European Communities of 12 September 2007 in Case T‑348/03 Koninklijke Friesland Foods v Commission is set aside in so far as the Court of First Instance held the action to be admissible.
      
      (2)      The action brought before the Court of First Instance of the European Communities for the annulment of Commission Decision
         2003/515/EC of 17 February 2003 on the State aid implemented by the Netherlands for international financing activities is
         dismissed as being inadmissible.
      
      (3)      Koninklijke Friesland Foods NV is ordered to pay the costs relating both to the present proceedings and to those brought before
         the Court of First Instance of the European Communities.
      
      1 –	Original language: French.
      
      2 –	A coordination centre is an undertaking established by a multinational group of companies with the aim of providing a variety
         of services to those companies, particularly in the financial sector.
      
      3 –	Commission Decision C(2003) 564 final on the aid scheme implemented by Belgium for coordination centres established in
         Belgium, as rectified by the corrigendum of 23 April 2003.
      
      4 –	Joined Cases C‑182/03 and C‑217/03 [2006] ECR I‑5479.
      
      5 –	Commission Decision 2003/515/EC on the State aid implemented by the Netherlands for international financing activities
         (OJ 2003 L 180, p. 52; the ‘contested decision’).
      
      6 –	‘KFF’.
      
      7 –	Case T‑348/03, the ‘judgment under appeal’.
      
      8 –	Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).
      
      9 –	Wet op de vennootschapsbelasting 1969.
      
      10 –	Law amending the 1969 Law on Corporation Tax with a view to combating erosion of the tax base and reinforcing the tax infrastructure
         (Wet tot wijziging van de wet op de vennootschapsbelasting 1969 met het oog op het tegengaan van uitholling van de belastinggrondslag
         en het versterken van de fiscale infrastructuur) (Stb. 1996, No 65; the ‘1969 Law’).
      
      11 –	See Decree DB 97/3951 of 2 October 1997 setting out the model decision referred to in Article 15b of the 1969 Law (Besluit
         nr DB 97/3951 van 2 oktober 1997 tot vaststelling van de modelbeschikking inzake artikel 15 b van de Wet op de venootschapsbelasting
         1969).
      
      12 –	Resolution of the Council and the representatives of the Governments of the Member States, meeting within the Council,
         of 1 December 1997 on a code of conduct for business taxation (OJ 1998 C 2, p. 2).
      
      13 –	OJ 1998 C 384, p. 3.
      
      14 –	OJ 2001 C 306, p. 6.
      
      15 –	The Commission refers to its footnote 16, which relates to Written Question No 1735/90 (OJ 1991 C 63, p. 37). It also refers
         to the questions submitted previously by Belgian MEPs Radoux No 2381/82 (OJ 1983 C 170, p. 9) and Van Rompuy No 1817/83 (OJ
         1984 C 148, p. 14).
      
      16 –	See recital 114 of the contested decision.
      
      17 –	See recitals 115 to 117 of the decision.
      
      18 –	Law amending the 1969 Law – abolition of the GFA scheme (Wet van 15 september 2005, houdende wijziging van de wet op de
         vennootschapsbelasting 1969 – vervallen van concernfinancieringsregeling) (Stb. 2005, No 468).
      
      19 –	Case 25/62 [1963] ECR 95, at p. 107.
      
      20 –	See, inter alia, Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 45; Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 33; and Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraph 70.
      
      21 –	See, inter alia, Joined Cases C‑15/98 and C‑105/99 Italy and Sardegna Lines v Commission [2000] ECR I‑8855, paragraph 33 and the case-law cited there.
      
      22 –	See, inter alia, Joined Cases 106/63 and 107/63 Toepfer and Getreide‑Import v Commission [1965] ECR 405, at p. 411; Case 62/70 Bock v Commission [1971] ECR 897; Case 100/74 CAM v Commission [1975] ECR 1393; Case 232/81 Agricola commerciale olio and Others v Commission [1984] ECR 3881; Case 264/81 Savma v Commission [1984] ECR 3915; Case C‑309/89 Codorniu v Council [1994] ECR I‑1853; and Commission v Infront WM, paragraph 72.
      
      23 –	See recitals 111 to 118 of the contested decision.
      
      24 –	See, inter alia, Case 74/74 CNTA v Commission [1975] ECR 533, paragraph 44; Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477, paragraph 26; Joined Cases C‑104/89 and C‑37/90 Mulder and Others v Council and Commission [1992] ECR I‑3061, paragraph 15; Case C‑104/97 P Atlanta v European Community [1999] ECR I‑6983, paragraph 52; Case C‑403/99 Italy v Commission [2001] ECR I‑6883, paragraph 35; and Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 73.
      
      25 –	I refer to points 365 to 433 of his Opinion.
      
      26 –	See, to this effect, Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20, and Case C‑107/97 Rombi and Arkopharma [2000] ECR I‑3367, paragraph 66.
      
      27 –	Case 289/81 Mavridis v Parliament [1983] ECR 1731, paragraph 21; Case C‑177/90 Kühn [1992] ECR I‑35, paragraph 14; Rombi and Arkopharma, paragraph 67; Case C‑459/02 Gerekens and Procola [2004] ECR I‑7315, paragraph 29; and Belgium and Forum 187 v Commission, paragraph 147 and the case-law cited there.
      
      28 –	Case C‑82/98 P Kögler v Court of Justice [2000] ECR I‑3855, paragraph 33; Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 113; and Belgium and Forum 187 v Commission, paragraph 147 and the case-law cited there; see also the order in Case C‑44/00 P Sodima v Commission [2000] ECR I‑11231, paragraphs 50 to 52.
      
      29 –	See, to this effect, Case C‑22/94 Irish Farmers Association and Others [1997] ECR I‑1809, paragraph 25; Joined Cases C‑37/02 and C‑38/02 Di Lenardo and Dilexport [2004] ECR I‑6911, paragraph 70; and Belgium and Forum 187 v Commission, paragraph 147 and the case-law cited therein.
      
      30 –	For examples of this balancing of the interests involved, see Case C‑90/95 P de Compte v Parliament [1997] ECR I‑1999, paragraph 39, and Case C‑183/95 Affish [1997] ECR I‑4315, paragraph 57.
      
      31 –	Statement by Commissioner Monti concerning the control of fiscal State aids (IP/00/182).
      
      32 –	Case C‑408/04 P Commission v Salzgitter [2008] ECR I-2767, paragraph 104 and the case-law cited there.
      
      33 –	See, inter alia, Case C‑24/95 Alcan Deutschland [1997] ECR I‑1591, paragraph 25 and the case-law cited there.
      
      34 –	Commission v Salzgitter, paragraph 104 and the case-law cited there. I would also point out that, in its order in Case C‑399/95 R Germany v Commission [1996] ECR I‑2441, the President of the Court also held that failure to comply with the obligation to notify is ‘a particularly
         serious breach, since [it] contravenes a system which is essential to protect the common market’ (paragraph 54 and the case-law
         cited there).
      
      35 –	Case C‑99/98 Austria v Commission [2001] ECR I‑1101, paragraph 73.
      
      36 –	See the Commission’s findings in that decision.
      
      37 –	OJ 1991 C 63, p. 37.
      
      38 –	See recitals 111 to 118 of the contested decision.
      
      39 –	Paragraphs 149 and 150 of the judgment under appeal.
      
      40 –	See, inter alia, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 106 and the case-law cited, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 41 and the case-law cited.
      
      41 –	See, inter alia, Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑0000, paragraph 23 and the case-law cited.
      
      42  –	There is in my view no need to analyse the fifth plea raised by the Commission in the alternative. In so far as I consider
         that the judgment under appeal should be set aside, there is no further need to examine whether the Court of First Instance
         did in fact err in law, in the operative part of that judgment, by conferring rights on all operators who were in the same
         situation as KFF.