(AGENPARL) – mer 27 settembre 2023 PRESS RELEASE No 148/23
Luxembourg, 27 September 2023
Judgments of the General Court in Cases T-826/14 | Spain v Commission, T-12/15 | Banco Santander
and Santusa v Commission, T-158/15 | Abertis Infraestructuras and Abertis Telecom Satélites v
Commission, T-252/15 | Ferrovial and Others v Commission, T-253/15 | Sociedad General de Aguas de
Barcelona v Commission, T-256/15 | Telefónica v Commission, T-257/15 | Arcelormittal Spain Holding v
Commission, T-258/15 | Axa Mediterranean v Commission and T-260/15 | Iberdrola v Commission
The General Court annuls the Commission’s decision declaring the Spanish
tax scheme on the deduction for indirect acquisitions of shareholdings in
foreign companies unlawful
In 2002, Spain introduced a new corporate tax scheme. That scheme allowed companies that had acquired
shareholdings in a foreign company to deduct from the tax base, in the form of amortisation, the goodwill resulting
from the acquisition of that shareholding. In response to questions from Members of the European Parliament, the
Commission stated, at the beginning of 2006, that that scheme did not fall within the scope of the EU State aid rules.
Nevertheless, following a complaint from a private operator, the Commission examined more closely the tax
scheme in question. By decision of 28 October 2009, concerning acquisitions of shareholdings made within the
European Union, and decision of 12 January 2011, concerning aquisitions of shareholdings in companies
established outside the European Union (’the initial decisions’), it declared that the measures in question
constituted State aid incompatible with the internal market. It therefore ordered the Spanish authorities to recover
that aid. However, the Commission allowed the scheme to continue to apply, subject to conditions, in certain cases
(principle of the protection of legitimate expectations) 1.
The actions brought against the initial decisions by various companies were unsuccessful 2.
In July 2013, the Commission examined a new interpretation of the tax scheme in question formalised in a binding
See the Commission press releases on the adoption of those decisions (PR of 28 October 2009 and PR of 12 January 2011).
By judgments of 7 November 2014, Autogrill España v Commission (T-219/10) and Banco Santander and Santusa v Commission (T-399/11) (see PR
No 145/14), the General Court annulled the Commission’s initial decisions, as it considered that all the cumulative conditions in order to establish the
existence of State aid, in particular that of the selectivity of the measure, were not satisfied. The Commission brought appeals before the Court of
Justice against those two judgments of the General Court. By judgment of 21 December 2016, Commission v World Duty Free Group and Others (Joined
Cases C-20/15 P and C-21/15P, see PR 139/16), the Court set aside the judgments of the General Court and referred the cases back to that court. By
judgments of 15 November 2018, Deutsche Telekom v Commission (T-207/10), Banco Santander v Commission (T-227/10), Sigma Alimentos Exterior v
Commission (T-239/11), Axa Mediterranean v Commission (T-405/11), Prosegur Compañía de Seguridad v Commission (T-406/11), World Duty Free Group v
Commission (T-219/10 RENV) and Banco Santander and Santusa v Commission (T-399/11 RENV) (see PR 175/18), the General Court confirmed the
Commission’s initial decisions. The companies concerned and Spain once again brought appeals before the Court of Justice. By judgments of
6 October 2021, Sigma Alimentos Exterior v Commission (C-50/19 P), World Duty Free Group and Spain v Commission (C-51/19 P and C-64/19 P), Banco
Santander v Commission (C-52/19 P), Banco Santander and Others v Commission (C-53/19 P and C-65/19 P), Axa Mediterranean v Commission (C-54/19 P),
and Prosegur Compañía de Seguridad v Commission (C-55/19 P), (see PR 170/21), the Court dismissed the appeals, with the result that the cases
concerning the Commission’s initial decisions were closed.
Communications Directorate
Press and Information Unit
curia.europa.eu
opinion sent by the Spanish authorities to that institution. According to the Commission’s opinion, that
interpretation extended the initial scheme to the financial goodwill resulting from the indirect acquisitions of
shareholdings in non-resident undertakings through the direct acquisition of shareholdings in non-resident
companies. By decision of 15 October 2014, the Commission concluded that that new tax measure was new aid
which was incompatible with the internal market. Consequently it required Spain to put an end to that aid
scheme and to recover the aid granted under that scheme. 3
Spain and several companies concerned requested the Court to annul the Commission decision of
15 October 2014. They submit, inter alia, that the Commission wrongly classified the new administrative
interpretation as new aid and that it infringed, inter alia, the principle of legal certainty and the principle of the
protection of legitimate expectations. Those actions were stayed pending the definitive resolution of the cases
concerning the Commission’s initial decisions.
By today’s judgments, the General Court upholds those actions and annuls the Commission’s decision of
15 October 2014.
The Court considers, in effect, that the Commission was no longer entitled to adopt the decision of 15 October
2014, as its initial decisions already covered the acquisition of shareholdings, both direct and indirect. The
fact that in its decision of 15 October 2014, the Commission ordered the recovery of the entirety of the aid granted
under the scheme in question, as applied to the indirect acquisitions of shareholdings, amounts to a withdrawal of
lawful decisions, in so far as the initial decisions already covered the indirect acquisition of shareholdings and
accorded them, subject to certain conditions, the benefit of the protection of legitimate expectations.
According to the Court, the Commission could not revoke or withdraw its initial decisions. First, it had not been
demonstrated that those decisions were based on inaccurate information. Secondly, this is a question of lawful
decisions which conferred on Spain, subject to conditions and on account of the existence of a legitimate
expectation, a subjective right to implement the aid scheme in question, even though it has been declared
incompatible. Incidentally, they conferred on the undertakings benefiting from that scheme a subjective
right not to have to repay certain unlawful aid. By withdrawing those rights, by its decision of 15 October
2014, as regards the indirect acquisition of shareholdings, the Commission infringed the principles of legal
certainty and the protection of legitimate expectations.
In any event, even if the Commission was entitled to adopt the decision of 15 October 2014, it erred in law by
refusing to acknowledge that there was a legitimate expectation similar to that acknowledged in the initial
decisions in favour of the beneficiaries of the aid schemes in question in respect of their indirect acquisition
of shareholdings. In effect, the answers that the Commission gave at the beginning of 2006 to the
parliamentary questions which were put to it gave rise on the part of Spain and the beneficiaries to a legitimate
expectation as to the lawfulness of the aid scheme as regards all of the acquisitions of shareholdings (direct and
indirect).
NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are
contrary to European Union law. The Member States, the European institutions and individuals may, under certain
conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well
founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the
NOTE: An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of
the General Court within two months and ten days of notification of the decision.
See Commission PR on the adoption of that decision.
Communications Directorate
Press and Information Unit
curia.europa.eu
Unofficial document for media use, not binding on the General Court.
The full text and as the case may be, the résumé of judgments T-826/14, T-12/15, T-158/15, T-252/15, T-253/15,
T-256/15, T-257/15, T-258/15 and T-260/15 are published on the CURIA website on the day of delivery.
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