Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Generalitat de Catalunya.
Date: 2018-04-26
22


Nonetheless, as observed by the Advocate General in point 21 of her Opinion, as the referring court has been seised in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, the decision of the referring court that will be adopted following the present ruling will also have effects on nationals of other Member States, so that the Court must give an answer to the questions put to it in relation to the provisions of the Treaty, even though the dispute in the main proceedings is confined in all respects within a single Member State (see, to that effect, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 35, and of 15 November 2016, Ullens de Shooten, C‑268/15, EU:C:2016:874, paragraph 51).
26


Finally, it should be noted that although the illegality, under the law on State aid, of a tax exemption does not affect the legality of the tax itself, so that the persons liable to pay that tax cannot plead that it is unlawful in order to avoid payment of that tax (see judgment of 27 October 2005, Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraph 44), the dispute in the main proceedings does not concern an application to be exempted from the contested tax, but the legality of the rules relating to that tax as a matter of EU law. It is therefore by no means obvious that the second and third questions are not of genuine interest for the purpose of ruling on the dispute before the referring court (see, by analogy, judgment of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 25).
29


According to settled case-law, freedom of establishment aims to guarantee the benefit of national treatment in the host Member State to nationals of another Member State and to companies referred to in Article 54 TFEU by prohibiting any discrimination based on the place in which companies have their seat (see, inter alia, judgments of 12 December 2006, Test Claimants in Class IV of the ACT Group Litigation, C‑374/04, EU:C:2006:773, paragraph 43, and of 14 December 2006, Denkavit Internationaal and Denkavit France, C‑170/05, EU:C:2006:783, paragraph 22).
30


The rules regarding equal treatment forbid not only overt discrimination based on the location of the seat of companies, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (judgment of 5 February 2014, Hervis Sport-és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraph 30 and the case-law cited).
31


Moreover, a tax based on an apparently objective criterion of differentiation but that disadvantages in most cases, given its features, companies whose seat is in other Member States and that are in a comparable situation to companies whose seat is situated in the Member State where that tax is charged, constitutes indirect discrimination based on the location of the seat of the companies, which is prohibited under Articles 49 and 54 TFEU (see, to that effect, judgment of 5 February 2014, Hervis Sport-és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraphs 37 to 41).
37


Classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must 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 a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see, inter alia, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53).
38


So far as concerns the condition relating to the selectivity of the advantage, also mentioned before the Court, it is clear from settled case-law that in order to assess that condition it is necessary to determine whether, under a particular legal regime, the national measure in question is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which accordingly suffer different treatment that can, in essence, be classified as ‘discriminatory’ (see, inter alia, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54 and the case-law cited).
39


As regards, in particular, national measures that confer a tax advantage, it must be recalled that a measure of that nature which, although not involving the transfer of State resources, places the recipients in a more favourable position than other taxpayers is capable of procuring a selective advantage for the recipients and, consequently, constitutes State aid, within the meaning of Article 107(1) TFEU. By contrast, a tax advantage resulting from a general measure applicable without distinction to all economic operators does not constitute such aid within the meaning of that provision (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 56).
40


In that regard, in order to classify a tax as ‘selective’, the ordinary or ‘normal’ tax system applicable in the Member State concerned must first be identified and it must then be demonstrated that the tax being examined is a derogation from that system, in so far as it differentiates between operators who, in the light of the objective pursued by that ordinary tax system, are in a comparable factual and legal situation (see, inter alia, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57 and the case-law cited).
41


It should also be recalled that the legal reference framework for the purpose of assessing the selectivity of a measure must not necessarily be determined within the territory of the Member State concerned, but may be that of the territory within which a regional or local authority exercises the powers conferred on it by the constitution or by law. Such is the case when that entity enjoys a legal and factual status which makes it sufficiently autonomous in relation to the central government of a Member State, with the result that, by the measures it adopts, it is that body and not the central government which plays a fundamental role in the definition of the political and economic environment in which undertakings operate (see, to that effect, judgment of 11 September 2008, UGT-Rioja and Others, C‑428/06 to C‑434/06, EU:C:2008:488, paragraphs 47 to 50 and the case-law cited).
42


A measure that differentiates between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation and is, therefore, a priori selective, does not, however, constitute State aid within the meaning of Article 107(1) TFEU where the Member State concerned is able to demonstrate that the differentiation is justified since it flows from the nature or overall structure of the system of which it forms part (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 58 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 the 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 scheme and which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself, which are necessary for the achievement of those objectives (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 81).
44


It should also be borne in mind that although, in order for a tax to be established as being selective, it is not always necessary that it should derogate from a tax system considered to be an ordinary tax system, the fact that it can be so characterised is highly relevant in that regard where its effect is that two categories of operators are distinguished and are subject, a priori, to different treatment, namely those who fall within the scope of the derogating measure and those who continue to fall within the scope of the ordinary tax system, although those two categories are in a comparable situation in the light of the objective pursued by that system (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 77).
47


Article 107(1) TFEU defines State interventions on the basis of their effects, independently of the techniques used (judgment of 22 December 2008, British Aggregates Association, C‑487/06 P, EU:C:2008:757, paragraph 89).
48


It cannot, therefore, be excluded a priori that such a criterion enables an advantage to be given, in practice, to ‘certain undertakings or the production of certain goods’ within the meaning of Article 107(1) TFEU by mitigating their tax burden in relation to those subject to the tax at issue in the main proceedings.
50


In the context of that analysis, account must be taken of the fact that, in the absence of EU rules governing the matter, it falls within the competence of the Member States, or of infra-State bodies having fiscal autonomy, to designate bases of assessment and to spread the tax burden across the various factors of production and economic sectors (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 97).
54


It is also clear that the setting up of such establishments is of particular significance for town and country planning policies, wherever those establishments may be situated (see, by analogy, judgment of 24 March 2011, Commission v Spain, C‑400/08, EU:C:2011:172, paragraph 80).
64


It is settled case-law that, for the purpose 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 examine whether that aid is liable to affect such trade and distort competition (see, inter alia, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 78).
65


In particular, when aid granted by a Member State strengthens the position of certain undertakings as compared with that of other undertakings competing in trade between Member States, such trade must be regarded as affected by the aid and it is not necessary that the beneficiary undertakings themselves be involved in trade between Member States. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (see, inter alia, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 79).
66


With regard to the condition concerning distortion of competition, in principle, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (see, inter alia, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 80).
71


In that regard, it must be borne in mind at the outset that the validity of measures giving effect to aid is affected if national authorities act in breach of the last sentence of Article 108(3) TFEU and that national courts must offer to individuals in a position to rely on such breach the certain prospect that all the necessary inferences will be drawn, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures (judgment of 21 November 1991, Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon, C‑354/90, EU:C:1991:440, paragraph 12).
72


Nevertheless, existing aid may, in accordance with Article 108(1) TFEU, be lawfully implemented so long as the Commission has made no finding of incompatibility, so that Article 108(3) TFEU does not give national courts the power to prohibit that aid being put into effect (see judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraphs 36 and 41).
74


As for the question whether the aid received by the establishments concerned in connection with the tax at issue in the main proceedings could be regarded as having been authorised by the Commission within the meaning of Article 1(b)(ii) of Regulation No 659/1999, reproduced in Article 1(b)(ii) of Regulation 2015/1589, it must be borne in mind that, in matters of State aid, an act, whatever its kind, constitutes such a decision when, taking account of its substance and the Commission’s intention, that institution has, at the end of the preliminary examination stage, definitively established its position — by way of that act — on the measure in question and, therefore, once it has decided whether or not that measure constituted aid and that it has no doubts as regards its compatibility with the internal market (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 46, and of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission, C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 94).
75


The Court has also ruled that it must be possible to establish the existence of such a Commission decision on the basis of objective factors and that decision must correspond to a clear and definitive expression of the Commission’s position on the measure in question (see judgment of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission, C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 95).
76


The effect of the Commission’s prior control in matters of State aid, and, in particular, of the prohibition on putting new aid measures into effect before a final decision has been adopted by the Commission laid down in the last sentence of Article 108(3) TFEU, is that the existence of a decision on the compatibility of an aid measure leaves no room for doubt, all the more so when the allegedly authorised aid measures have not been notified to the Commission pursuant to Article 108(3) TFEU, thereby jeopardising the legal certainty that that provision is intended to safeguard (see, to that effect, judgment of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission, C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraphs 96 and 97).
82


Consequently, in accordance with Article 15(2) of Regulation No 659/1999, the day on which the unlawful aid is actually granted to the beneficiary is the starting point for the limitation period (see, to that effect, judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraphs 80 to 82, and order of 7 December 2017, Ireland v Commission, C‑369/16 P, not published, EU:C:2017:955, paragraph 41).
85


In those circumstances, such requests also interrupted the limitation period laid down in Article 15 of Regulation No 659/1999 (see, to that effect, judgment of 6 October 2005, Scott v Commission, C‑276/03 P, EU:C:2005:590, paragraph 36).