1 By its appeal, Fugro NV seeks to have set aside the order of the General Court of the European Union of 15 December 2023, Fugro v Council (T‑143/23, EU:T:2023:873; ‘the order under appeal’), by which that court dismissed as inadmissible its action seeking partial annulment of Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (OJ 2022 L 328, p. 1, and corrigendum OJ 2023 L 13, p. 9).
2 Recital 17 of Directive 2022/2523 is worded as follows: ‘Due to the highly volatile nature and long economic cycle of the shipping sector, it is traditionally subject to alternative or supplementary taxation regimes in Member States. To avoid undermining that policy rationale and to allow Member States to continue applying a specific tax treatment to the shipping sector in line with international practice and State aid rules, shipping income should be excluded from the system.’
3 Article 1(1) of that directive provides: ‘This Directive establishes common measures for the minimum effective taxation of multinational enterprise (MNE) groups and large-scale domestic groups … …’
4 Article 17 of that directive provides: ‘1. For the purposes of this Article, the following definitions apply: 2. The international shipping income and the qualified ancillary international shipping income of a constituent entity shall be excluded from the computation of its qualifying income or loss, provided that the constituent entity demonstrates that the strategic or commercial management of all ships concerned is effectively carried on from within the jurisdiction where the constituent entity is located. … 4. The aggregated qualified ancillary international shipping income of all constituent entities located in a jurisdiction shall not exceed 50% of those constituent entities’ international shipping income. …’
5 The background to the dispute is set out in paragraphs 2 to 13 of the order under appeal and may, for the purposes of the present appeal, be summarised as follows.
6 In 1996, the Kingdom of the Netherlands implemented a specific tax scheme for corporate or personal income tax, called ‘tonnage tax’, available, on an opt-in basis and for a period of 10 years, to taxpayers engaged in international maritime transport by ship or an activity directly related thereto (‘the Dutch tonnage tax scheme’). Under that scheme, tax is calculated on the basis of the net tonnage of the fleet operated and not on the basis of the actual profit earned. That scheme was amended, in 2009 and in 2010, to include new categories of vessels and beneficiaries.
7 The Dutch tonnage tax scheme and the amendments thereto were notified to the European Commission as aid schemes. On several occasions, the Commission declared that scheme and the amendments thereto compatible with the internal market.
8 Fugro is a company established in the Netherlands and incorporated under Netherlands law. It is the ultimate parent entity of a multinational enterprise group active in many countries both within and outside the European Union. Its main activity consists of providing geotechnical, survey and geosciences services. It also carries out a ship management activity. Its consolidated turnover was EUR 1 461 million in 2021 and EUR 1 766 million in 2022.
9 Fugro is subject to corporate income tax in the Netherlands. As of the 2014 tax year, it was taxed under the Dutch tonnage tax scheme.
10 By application lodged at the Registry of the General Court on 15 March 2023, Fugro brought an action for partial annulment of Directive 2022/2523.
11 Taking the view that that directive was neither of direct nor of individual concern to Fugro, within the meaning of the fourth paragraph of Article 263 TFEU, the Council of the European Union raised a plea of inadmissibility.
12 The General Court held that Fugro was not individually concerned by that directive. It inferred the consequence that, without it being necessary to examine whether the Fugro was directly concerned by that directive, Fugro did not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
13 By the order under appeal, the General Court thus upheld the plea of inadmissibility raised by the Council and, consequently, dismissed the action brought by Fugro as inadmissible.
14 By its appeal, Fugro claims that the Court should: - set aside the order under appeal; - if the Court considers that the state of the proceedings so permits, to reject the plea of inadmissibility raised by the Council at first instance, declare the action for annulment admissible and refer the case back to the General Court so that it rule on the substance or, in the alternative, declare Directive 2022/2523 to be of individual concern to Fugro and refer the case back to the General Court so that it rule on direct concern or that it join that issue to the substance; and - order the Council to pay the costs, including the costs incurred before the General Court.
15 The Council contends that the Court should: - dismiss the appeal as unfounded; and - order Fugro to pay the costs.
16 By document lodged at the Registry of the Court on 31 May 2024, the Commission sought leave to intervene in the present case in support of the form of order sought by the Council. By decision of 27 June 2024, the President of the Court granted that application to intervene.
17 The Commission contends that the Court should dismiss the appeal and order Fugro to pay all the costs. Fugro, by a response lodged at the Registry of the Court on 30 August 2024, adopted a position on the Commission’s statement of intervention. By a response lodged at that registry on 22 August 2024, the Council informed the Court that it had no observations on that statement.
18 By documents lodged at the Registry of the Court of Justice on 31 May 2024, Van Oord NV, a company established in Rotterdam (Netherlands), Vox Amalia SL, a company established in Madrid (Spain), Koninklijke Boskalis BV, a company established in Sliedrecht (Netherlands), Boskalis Offshore Transport Services NV, a company established in Antwerp (Belgium), and Koninklijke Vereniging van Nederlandse Reders (Royal Association of Netherlands Ship Owners), established in Rotterdam, each, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, sought leave to intervene in the present case in support of the form of order sought by Fugro. None of the parties to the present appeal lodged observations on those applications to intervene.
19 By three orders of the President of the Court of 21 October 2024, Fugro v Council (C‑146/24 P, EU:C:2024:907), Fugro v Council (C‑146/24 P, EU:C:2024:908) and Fugro v Council (C‑146/24 P, EU:C:2024:927), those applications to intervene were dismissed.
20 In support of its appeal, Fugro relies on a single ground, alleging an error of law in the interpretation of the concept of an ‘individual concern’ within the meaning of the second limb of the fourth paragraph of Article 263 TFEU.
21 In that regard, in the first place, Fugro submits, in essence, that the General Court erred in law inasmuch as, in paragraph 35 of the order under appeal, it inferred solely from the fact that Directive 2022/2523 was of general application that ‘the applicant is concerned by [that] directive only in its objective capacity as the parent entity of a multinational enterprise group active in the maritime sector’, whereas it follows from the case-law of the Court of Justice that the fact that a measure is of general application does not preclude it being of individual concern.
22 In the second place, Fugro claims that the General Court adopted an incorrect definition of the concept of ‘limited class of operators’, such as that concept had been put forward by it at first instance and was capable of establishing that it was individually concerned.
23 According to Fugro, that limited class of operators does not cover, as the General Court held, all the operators taxed under a tonnage tax scheme, but is constituted of the operators who relied on the Commission decisions which approve the State aids that that directive calls into question in so far as the directive subjects the income of those operators to a top-up tax. In Fugro’s view, that is, moreover, contrary to the purpose of Article 17 of that directive, which seeks, as is apparent from recital 17 thereof, to guarantee the continuity of the existing national legislation on State aid.
24 In the third place, Fugro claims that the General Court erred in law in holding, in paragraph 44 of the order under appeal, that it did not form part of a limited class of operators at the moment of adoption of Directive 2022/2523.
25 In that regard, first, Fugro takes the view that that limited class of operators was identified or identifiable at the date of adoption of that directive, through national decisions by competent authorities approving the application of tonnage tax schemes. Consequently, its situation should have been taken into account by the Council. In any event, the latter should have been aware of the fact that that directive had the result of annulling the effect of the Commission decisions by which that institution had approved State aids. Furthermore, the limited class of operators of which Fugro claims it forms part could not be enlarged after the adoption of that directive.
26 Secondly, Fugro argues that it is affected by Directive 2022/2523 inasmuch as, first, the adoption of that directive forces it to introduce changes to its business model within a short timeframe and, secondly, it would be in a less favourable position in terms of competing with other operators than the position it held previously.
27 Thus, prior to the adoption of Directive 2022/2523, the income of the limited class of operators of which Fugro forms part would have been entirely or almost entirely subject to the national tonnage tax schemes approved by Commission decisions. That limited class therefore relied significantly on those decisions for the purposes of making long-term investments. However, since the adoption of that directive, the income of that limited class has been subject to a significantly higher tax burden.
28 According to the Council, supported by the Commission, the single ground of appeal should be rejected as unfounded.
29 So far as concerns, in the first place, the argument referred to in paragraph 21 above, by which Fugro submits that the General Court’s assessment in paragraph 35 of the order under appeal is incorrect, it must be observed that, in paragraph 27 of that order, the General Court reiterated the Court of Justice’s case-law relied on by Fugro in support of that argument. In paragraph 27, the General Court held that the fact that a provision is, by its nature and scope, a provision of general application, inasmuch as it applies to the persons concerned in general, does not of itself prevent that provision from being of individual concern to some (see judgment of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29 and the case-law cited).
30 Furthermore, the Court, in paragraph 28 of the order under appeal, recalled that, where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of persons. That can be the case particularly when the measure alters rights acquired by those persons prior to its adoption (see, to that effect, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59 and the case-law cited, and of 24 November 2016, Ackermann Saatzucht and Others v Parliament and Council, C‑408/15 P and C‑409/15 P, EU:C:2016:893, paragraph 31 and the case-law cited).
31 It is on the basis of the case-law cited in paragraphs 29 and 30 above that, as a first step, the General Court held, in paragraph 35 of the order under appeal, that Fugro was concerned by Directive 2022/2523 only in its objective capacity as the parent entity of a multinational enterprise group active in the maritime sector, so that it was concerned by that directive in the same way as any other economic operator that was, actually or potentially, in an identical situation. Also in paragraph 35, the General Court, consequently, held that Fugro was not individually concerned by that directive.
32 In addition, as a second step, and pursuant still to the case-law cited in paragraphs 27 and 28 of the order under appeal, as reiterated in paragraphs 29 and 30 above, the General Court analysed the arguments submitted by Fugro before it and seeking to establish, inter alia, that Fugro was part of a ‘limited class of persons’ within the meaning of that case-law.
33 Accordingly, in paragraph 44 of that order, the General Court held that, for the reasons set out in paragraphs 41 to 43 of the order, Fugro had not shown that it formed part of such a class.
34 It follows from the foregoing that the General Court carried out a two-step analysis, while basing its assessments on the relevant case-law cited in paragraphs 29 and 30 above. Therefore, the General Court cannot be accused of having inferred only from the fact that Directive 2022/2523 is of general application that Fugro is not individually concerned by that directive.
35 Concerning, in the second place, Fugro’s arguments as referred to in paragraphs 22 and 23 above, according to which the General Court adopted an incorrect definition of the concept of ‘limited class of operators’, differing from that relied on by Fugro at first instance and which, in Fugro’s view, was capable of proving that it was individually concerned, it is clear from paragraphs 40 and 43 of the order under appeal that, in its assessment, the General Court took account of the definition of that concept, as relied on before it, namely a class composed of the persons benefiting from the Dutch tonnage tax scheme under decisions of the Netherlands tax authorities, validated by the Commission. Nonetheless, in paragraph 43 of the order, the General Court established, in essence, that the beneficiaries of a favourable tax scheme, such as that Dutch tonnage tax scheme, did not form a limited class of operators.
36 It follows that the General Court cannot be accused of incorrectly interpreting the concept of ‘limited class of persons’, such as it was relied on by Fugro and by which concept Fugro maintained it was covered. Consequently, the latter’s arguments are based on a misreading of the order under appeal and must be rejected as unfounded.
37 So far as concerns, in the third place, the arguments referred to in paragraphs 24 to 27 above, according to which the General Court erred in law in holding that Fugro did not form part of a limited class of operators at the date of adoption of Directive 2022/2523, it must be observed that, according to the settled case-law reiterated, in essence, in paragraph 25 of the order under appeal, if a legislative act can individually concern natural or legal persons where it affects them by reason of certain attributes which are peculiar to them, it is only on condition that those attributes differentiate them from all other persons and by virtue of these factors distinguish them individually just as in the case of the person addressed (judgment of 24 November 2016, Ackermann Saatzucht and Others v Parliament and Council, C‑408/15 P and C‑409/15 P, EU:C:2016:893, paragraph 38 and the case-law cited).
38 Secondly, according to the case-law referred to in paragraph 30 above, persons belonging to a group can be individually concerned by a legislative measure only where those persons were identified or identifiable when the measure was adopted. Thus, a limited group whose members could be individually concerned by an EU measure cannot be extended after the entry into force of that measure, as is the case in respect of a measure capable of applying to an indeterminate number of addressees (judgment of 24 November 2016, Ackermann Saatzucht and Others v Parliament and Council, C‑408/15 P and C‑409/15 P, EU:C:2016:893, paragraph 39 and the case-law cited).
39 In the present case, as the General Court observed in paragraph 41 of the order under appeal, persons benefiting from the Dutch tonnage tax scheme, and the appellant in particular, were not specifically targeted by Directive 2022/2523.
40 In addition, as the General Court noted in paragraph 42 of the order under appeal, Fugro, first, had adduced no evidence as to the number or identity of the persons that benefit from the Dutch tonnage tax scheme and are capable of being affected by that directive. Secondly, Fugro had not disputed that any economic operator carrying out activities in the maritime sector and established in the Netherlands may benefit from that particular tax scheme if it requests to do so and satisfies the relevant conditions.
41 In the present appeal, Fugro does not call in question the findings made by the General Court in paragraphs 41 and 42 of the order under appeal, as referred to in paragraphs 39 and 40 above.
42 On the basis of those findings, the General Court, in accordance with the case-law cited in paragraph 38 above, was entitled to hold, in paragraph 42 of the order under appeal, that the class of persons that benefited from the Dutch tonnage tax scheme and were potentially affected by Directive 2022/2523 was not made up exclusively of persons identified or identifiable at the date of adoption of that directive and could yet be extended after that date.
43 In addition, as the General Court observed in paragraph 43 of the order under appeal, the mere fact of benefiting from a favourable tax scheme, such as the Dutch tonnage tax scheme, the scope or effects of which are potentially affected by that directive is not an acquired right that is specific or exclusive to Fugro or to a limited class of persons. Other economic operators may benefit from the Dutch tonnage tax scheme or from a similar tax scheme in another Member State and may see the benefit arising from such a scheme offset by the top-up tax provided for in that directive. Moreover, as the General Court stated in paragraph 43 of its order, that finding is not called into question by the fact that Fugro made long-term investments in the knowledge that it benefited from a favourable tax scheme.
44 It follows from the foregoing that the General Court correctly applied the case-law referred to in paragraphs 37 and 38 above. Accordingly, without its being necessary to respond expressly to all the arguments referred to in paragraphs 24 to 27 above, the General Court cannot be accused of erring in law in holding, in paragraph 44 of the order under appeal, that Fugro had not shown that it formed part of a ‘limited class of persons’ for the purposes of that case-law.
45 In the light of all of the foregoing considerations, the single ground of the appeal must be rejected as unfounded. Consequently, the appeal must be rejected in its entirety.
46 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
47 Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
48 Since the Council has applied for costs and Fugro has been unsuccessful in its single ground of appeal, Fugro must be ordered, in addition to bearing its own costs, to pay those incurred by the Council.
49 In accordance with Article 140(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Commission, which has intervened in the present appeal proceedings, is to bear their own costs. 1. Dismisses the appeal; 2. Orders Fugro NV, in addition to bearing its own costs, to pay those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs.