European Commission v Aer Lingus Ltd and Ryanair Designated Activity Company.
Date: 2016-12-21
31


It must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
32


Under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the conclusion reached by the Advocate General or by the reasoning which led to that conclusion. As a consequence, the fact that a party disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraphs 27 and 28 and the case-law cited).
39


It should be recalled that, according to Article 107(1) TFEU, save as otherwise provided in the Treaties, 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 is, in so far as it affects trade between Member States, incompatible with the internal market.
40


According to settled case-law, the definition of ‘aid’ is more general than that of a ‘subsidy’, because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 71 and the case-law cited).
41


Consequently, a measure whereby public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, advantages resulting from a general measure applicable without distinction to all economic operators, which is not therefore selective, do not constitute State aid within the meaning of Article 107 TFEU (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 72 and 73 and the case-law cited).
51


It is the Court’s established case-law that, when appraising the requirement of selectivity, Article 107(1) TFEU requires assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 75 and the case-law cited).
58


As the General Court observed, in essence, in paragraph 89 of the Ryanair judgment, if the Court were to find that the lower rate of ATT did not procure a selective advantage for the undertakings liable to pay that rate on the sole ground that that rate was introduced at the same time as the rate of EUR 10 per passenger, that would be tantamount to a finding that the decision whether a State intervention measure constituted State aid depended on the technique used. As is apparent from the Court’s established case-law, Article 107(1) TFEU does not draw a distinction between measures of State intervention on the basis of the techniques used by the national authorities (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87 and the case-law cited).
68


As regards, first, the first part of Aer Lingus’ single ground of appeal, it should be noted that the only decisive factor for determining whether a tax measure is to be classified as State aid and, in particular, for ascertaining whether that measure gives rise to more favourable tax treatment for its beneficiaries by comparison with other taxpayers, is the effects produced by the measure (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87 and the case-law cited).
69


Accordingly, the fact that a tax measure is contrary to provisions of EU law other than Articles 107 and 108 TFEU does not mean that the exemption from that measure enjoyed by certain taxpayers cannot be classified as State aid, as long as the measure in question produces effects vis-à-vis other taxpayers and has not been either repealed or declared unlawful and, therefore, inapplicable (see, to that effect, judgment of 30 March 2005, Heiser, C‑172/03, EU:C:2005:130, paragraph 38).
86


According to the Court’s well-established case-law, in an appeal, complaints directed against a ground included in a judgment of the General Court purely for the sake of completeness must be immediately dismissed as ineffective, since they cannot lead to the judgment under appeal being set aside (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 75 and the case-law cited).
89


That said, as regards the analysis of the substance of the Commission’s single ground of appeal, it should be noted, first, that the obligation on the Member State concerned to abolish, through recovery, aid considered by the Commission to be incompatible with the single market has as its purpose, according to the Court’s established case-law, to restore the situation as it was before the aid was granted (see, to that effect, judgment of 4 April 1995, Commission v Italy, C‑350/93, EU:C:1995:96, paragraph 21 and the case-law cited).
90


That objective is attained once the aid in question, together, where appropriate, with default interest, has been repaid by the recipient, or, in other words, by the undertakings which actually enjoyed the benefit of it. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 75 and the case-law cited).
91


Second, the recovery of unlawful aid with a view to re-establishing the status quo ante does not imply reconstructing past events differently on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, since the choices actually made with the aid might prove to be irreversible (judgment of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraph 118).
93


With regard, in particular, to unlawful aid granted in the form of a tax advantage, it is also the Court’s settled case-law that recovery of aid means that the transactions actually carried out by the recipients of the aid in question must be subject to the tax treatment which the recipients would have received in the absence of the unlawful aid (see, to that effect, judgment of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraph 119).
114


As the Advocate General observed in point 83 of his Opinion, the recovery of an amount equal to the difference between the tax that would have been payable in the absence of an unlawful aid measure and the lesser amount paid pursuant to that measure does not constitute a new tax imposed retroactively (see, to that effect, judgment of 10 June 1993, Commission v Greece, C‑183/91, EU:C:1999:233, paragraph 17). What is at issue is the recovery of the part of the original tax which was not paid due to the availability of an unlawful exemption. The recovery of such an amount does not constitute a penalty (judgment of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraph 65).
116


Lastly, the imposition of the obligation to recover that aid infringes neither the principle of proportionality nor the principle of equal treatment. First, it is the Court’s settled case-law that abolishing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful. Accordingly, the recovery of such aid, for the purpose of restoring the previously existing situation, cannot in principle be regarded as disproportionate to the objectives of the provisions of the FEU Treaty relating to State aid (judgments of 11 March 2010, CELF and Ministre de la Culture et de la Communication, C‑1/09, EU:C:2010:136, paragraph 54, and of 28 July 2011, Diputación Foral de Vizcaya and Others v Commission, C‑471/09 P to C‑473/09 P, not published, EU:C:2011:521, paragraph 100).
121


ATT was a tax of general application and, in the decision at issue, the Commission reached the conclusion that the lower rate of ATT was equivalent to a partial exemption which, in itself, constituted an aid measure. In those circumstances, those liable to pay the tax in question cannot claim that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax or to obtain reimbursement (judgment of 7 September 2006, Laboratoires Boiron, C‑526/04, EU:C:2006:528, paragraphs 30 and 32 and the case-law cited).