Ministerio de Defensa and Navantia SA v Concello de Ferrol.
Date: 2014-10-09
19. According to settled case-law of the Court, for a measure to be categorised as ‘aid’ within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled (see, to that effect, judgment in Commission  v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraph 38 and the case-law cited).
20. Accordingly, for a national measure to be categorised as State aid within the meaning of Article 107(1) TFEU, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; and fourth, it must distort or threaten to distort competition (judgment in Commission  v Deutsche Post , EU:C:2010:481, paragraph 39 and the case-law cited).
21. It is necessary, in the first place, to examine the third of those conditions, to the effect that the measure at issue must be regarded as conferring an advantage on its recipient. In that regard, it should be noted that, according to similarly settled case-law of the Court, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgment in Commission  v Deutsche Post , EU:C:2010:481, paragraph 40 and the case-law cited).
22. Thus, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking and which, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute aid (judgment in Bouygues and Bouygues Télécom  v Commission and Others and Commission  v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 101).
23. It follows that a measure by which the public authorities grant certain undertakings favourable tax treatment, which, although not involving the transfer of State resources, places the recipients in a financial position more favourable than that of other taxpayers, amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, tax advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of Article 107 TFEU (judgment in P , C‑6/12, EU:C:2013:525, paragraph 18 and the case-law cited).
28. To the extent that the Spanish Government contends that, under the terms of Article 62(1)(a) of the Law of 2004, the exemption allowed under that provision was established not for the benefit of undertakings such as Navantia, but exclusively for the benefit of the Spanish State, as the taxable person for the purposes of the property tax, and that the objectives pursued relate to considerations of national defence, it should be noted that the grounds underlying an aid measure do not suffice to exclude the measure at the outset from being categorised as aid within the meaning of Article 107(1) TFEU, since that provision does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in terms of their effects (judgments in Comitato ‘Venezia vuole vivere’ and Others  v Commission , C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 94, and Commission  v EDF , C‑124/10 P, EU:C:2012:318, paragraph 77 and the case-law cited).
34. In that regard, it is clear from the Court’s settled case-law that Article 107(1) TFEU requires it to be determined whether, under a particular statutory regime, a State measure is of such a nature as to favour ‘certain undertakings or the production of certain goods’ as compared with others which, in the light of the objective pursued by the regime in question, are in a comparable legal and factual situation (judgment in Portugal  v Commission , C‑88/03, EU:C:2006:511, paragraph 54 and the case-law cited).
35. It follows that, in order to categorise a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ regime applicable in the Member State concerned. It is in relation to that common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective, by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in the light of the objective attributed to the tax system of the Member State concerned, are in a comparable factual and legal situation (judgment in Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).
42. However, according to settled case-law, the concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the overall structure of the system of charges of which they are part, which it is for the Member State concerned to demonstrate (judgment in Portugal  v Commission , EU:C:2006:511, paragraphs 52 and 80 and the case-law cited).
43. A measure which creates an exception to the application of the general tax system may be justified by the nature and overall structure of the tax system if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that connection, a distinction must be made between, on the one hand, the objectives attributed to a particular tax regime, which are extrinsic to it, and, on the other hand, the mechanisms inherent in the tax system itself, which are necessary for the achievement of such objectives (judgment in Portugal  v Commission , EU:C:2006:511, paragraph 81).
46. In the second place, as regards the first condition, relating to an intervention by the State or through State resources, it should be noted that only advantages granted directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 107(1) TFEU. The very wording of that provision and the procedural rules laid down in Article 108 TFEU show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission  v France and Others , EU:C:2013:175, paragraph 99 and the case-law cited).
47. Consequently, it is necessary to establish whether there is a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission  v France and Others , EU:C:2013:175, paragraph 109).
51. In the third place, as regards the second and fourth conditions relating, respectively, to an effect on trade between Member States and on competition of a tax exemption such as that at issue in the main proceedings, it should be borne in mind that for the purposes of categorising a national measure as State aid, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to determine whether that aid is liable to affect such trade and to distort competition (judgment in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 76 and the case-law cited).
52. In particular, if aid granted by a Member State strengthens the position of an undertaking as compared with that of other undertakings competing in intra-Community trade, the latter undertakings must be regarded as affected by that aid (judgment in Libert and Others , EU:C:2013:288, paragraph 77 and the case-law cited).