European Commission v World Duty Free Group SA and Others.
Date: 2016-12-21
50


The Federal Republic of Germany recalls that the Court has previously held that a tax concession in favour of taxpayers who sell certain financial assets and can offset the resulting profit when they acquire other financial assets confers on them an advantage which, as a general measure applicable without distinction to all economic operators, cannot be classified as State aid (judgment of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 22).
53


First, it must be recalled that, according to the Court’s settled case-law, 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 the 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 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 24).
54


So far as concerns the condition relating to the selectivity of the advantage, which is a constituent factor in the concept of ‘State aid’, within the meaning of Article 107(1) TFEU, it is clear from equally settled case-law of the Court that the assessment of that condition requires a determination whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and who accordingly suffer different treatment that can, in essence, be classified as discriminatory (see, inter alia, judgments of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraph 36; 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 75 and 101; and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 53 to 55; and of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59).
55


Further, where the measure at issue is conceived as an aid scheme and not as individual aid, it is for the Commission to establish that that measure, although it confers an advantage of general application, confers the benefit of that advantage exclusively on certain undertakings or certain sectors of activity (see, to that effect, inter alia, judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraphs 49 and 50).
56


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, of constituting State aid, within the meaning of Article 107(1) TFEU. On the other hand, a tax advantage resulting from a general measure applicable without distinction to all economic operators does not constitute such aid (see to that effect, inter alia, judgment of 18 July 2013, P,C‑6/12, EU:C:2013:525, paragraph 18).
57


In that context, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the ordinary or ‘normal’ tax system applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that ordinary 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 to that effect, inter alia, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).
58


The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general structure of the system of which the measures form part (see, to that effect, inter alia, judgments of 29 April 2004, Netherlands v Commission, C‑159/01, EU:C:2004:246, paragraphs 42 and 43; of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64 and 65; and of 29 March 2012, 3M Italia, C‑417/10, EU:C:2012:184, paragraph 40).
59


Further, it must be recalled that the fact that only taxpayers satisfying the conditions for the application of a measure can benefit from the measure cannot, in itself, make it into a selective measure (judgment of 29 March 2012, 3M Italia, C‑417/10, EU:C:2012:184, paragraph 42).
60


It follows from all the foregoing that the appropriate criterion for establishing the selectivity of the measure at issue consists in determining whether that measure introduces, between operators that are, in the light of the objective pursued by the general tax system concerned, in a comparable factual and legal situation, a distinction that is not justified by the nature and general structure of that system (see, to that effect, judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 61).
69


However, the General Court considered that the measure at issue, on the grounds that it did not affect any particular category of undertakings or the production of any particular category of goods, that it was applicable regardless of the nature of an undertaking’s activity and that it was accessible, a priori or potentially, to all undertakings that wanted to acquire shareholdings of at least 5% in foreign companies and that held those shareholdings without interruption for at least one year, had to be regarded not as a selective measure but as a general measure within the meaning of the case-law cited in paragraph 56 of this judgment. In so doing, the General Court erred in law.
70


Thus, in paragraphs 41, 45, 67 and 68 of the judgment under appeal Autogrill España v Commission and in paragraphs 45, 49, 71 and 72 of the judgment under appeal Banco Santander and Santusa v Commission, the General Court held that, if the condition relating to the selectivity of a national measure relevant to the recognition of State aid, in respect of a measure that is a priori accessible to any undertaking, is to be satisfied, it is always necessary that a particular category of undertakings, who are exclusively favoured by the measure concerned and who can be distinguished by reason of specific properties, common to them and characteristic of them, be identified.
71


However, the imposition of such a supplementary requirement to identify a particular category of undertakings, additional to the analytical method applicable to selectivity in tax matters that may be deduced from the Court’s settled case-law, which essentially involves ascertaining whether the exclusion of certain operators from the benefit of a tax advantage that arises from a measure derogating from an ordinary tax system constitutes discrimination with respect to those operators, cannot be inferred from the Court’s case-law and, in particular, from the 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).
77


Indeed, while it is not always necessary that a tax measure, in order for it to be established that it is selective, should derogate from an ordinary tax system, the fact that it can be so characterised is highly relevant in that regard where the effect of that measure 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.
80


Further, according to the Court’s settled case-law, the fact that the number of undertakings able to claim entitlement under a national measure is very large, or that those undertakings belong to various economic sectors, is not sufficient to call into question the selective nature of that measure and, therefore, to rule out its classification as State aid (see, inter alia, judgments of 13 February 2003, Spain v Commission, C‑409/00, EU:C:2003:92, paragraph 48, and of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 50).
82


In that context, contrary to what was held by the General Court in paragraph 57 of the judgment under appeal Autogrill España v Commission and in paragraph 61 of the judgment under appeal Banco Santander and Santusa v Commission, it cannot be inferred from paragraph 36 of the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), according to which measures are not selective where they apply to all the undertakings in the national territory, ‘regardless of their activity’, that a measure whose application does not depend on the nature of the undertakings’ activity is, a priori, not selective.
83


It is apparent from reading all the grounds of that judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), that, in paragraph 36, read in the light of paragraph 35 of that judgment, the Court held that national measures, such as those at issue in that case, were not selective where they applied indiscriminately to all undertakings in the Member State concerned and constituted, for that reason, a general measure within the meaning of the case-law cited in paragraph 56 of the present judgment.
84


It must also be made clear that while the Court, in paragraph 36 of the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), referred to the activity of undertakings benefiting from the national measures, that reference is explained by the wording of the second question submitted by the referring court in the case that gave rise to that judgment. That is confirmed by the fact that no such reference is made in the subsequent judgments of the Court which restate that principle (see, inter alia, judgments 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 73, and of 29 March 2012, 3M Italia, C‑417/10, EU:C:2012:184, paragraph 39).
86


It follows that a condition for the application or the receipt of tax aid may be grounds for a finding that that aid is selective, if that condition leads to a distinction being made between undertakings despite the fact that they are, in the light of the objective pursued by the tax system concerned, in a comparable factual and legal situation, and if, therefore, it represents discrimination against undertakings which are excluded from it.
88


In that regard, it may be added that the Court has previously ruled that a tax measure from which solely undertakings that carried out specified transactions benefited, and not undertakings in the same sector that did not carry out those transactions, could be classified as selective, there being no need to assess whether that measure was of greater benefit to large undertakings (see, to that effect, judgment of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraphs 47 to 50).
94


While, indeed, that examination must be carried out rigorously and while sufficient reasons must be stated to permit full judicial review, in particular of the question whether the situation of operators benefiting from the measure is comparable with that of operators excluded from it and, where appropriate, of the justification for discrimination relied on by the Member State concerned, the fact remains that the General Court erred in law by not undertaking such a review, and by ruling, in the judgments under appeal, that the examination method applied by the Commission in the contested decisions, in failing to define a particular category of undertakings which were exclusively favoured by the tax measure at issue, was based on a misinterpretation of the condition relating to selectivity as laid down by Article 107(1) TFEU.