Spain: Spanish tax lease system does not constitute state aid
International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Spain: Spanish tax lease system does not constitute state aid

Calvo-Rafael
Pastoriza-Salvador

Rafael Calvo

Juan Salvador Pastoriza

On December 17, the European General Court (EGC – a constituent court of the ECJ) handed down a judgment on joined cases T-515/13, Spain / Commission, and T-719/13, Lico Leasing, SA and Pequeños y Medianos Astilleros Sociedad de Reconversión, SA / Commission. That judgment overturned the Commission's decision on a proceeding finding that the Spanish tax lease system (STLS) constituted illegal state aid, because the EGC considered that the measures composing that system do not constitute a selective advantage.

The judgment, which is based on some of the most recent and important ECJ judgments on matters of state aid (judgments of November 7 2014, on cases T-219/10, Autogrill España / Commission and T-399/11, Banco Santander y Santusa / Commission), begins by analysing whether the conditions of aid are met in relation to the beneficiaries of the system – according to the decision – that is, the investors, and in particular focuses on the analysis of selectivity.

According to the European Commission, the system was selective with respect to investors because, firstly, it only applied to a certain type of investment (in vessels); and, secondly, it only applied to projects that could be selected discretionally by the authorities. Additionally, it only applied to a specific activity: the bareboat charter carried out by economic interest groupings (EIGs). The judgment analysed and rejected each of these arguments, according to the following reasoning:

  • On the supposed selectivity because the STLS only applies to investments in vesselsThe EGC applies the Autogrill / Santander case law directly to explain that, as any company of any sector and size can invest in vessels, the STLS cannot be deemed selective (section 143). The judgment underlines that, at least with respect to the investors (the supposed beneficiaries of the aid), the system was, undoubtedly, a general measure (paragraph 148).

  • On the supposed selectivity because the STLS only applies to projects that could be selected discretionally by the tax authoritiesThe EGC rules that the supposed discretion of the tax authorities in authorisation of the projects referred only to the characteristics of the assets (vessels), not to the characteristics of the investors. Moreover, it holds that any company of any sector and size could participate as an investor in the STLS (paragraph 160). In this regard, it observes that, in fact, the identity of the investors could be changed after the authorisation of the project without needing to request permission from the authorities (paragraph 162).

  • On the supposed selectivity because the STLS only applies to the bareboat charter by EIGs.The EGC affirms that this argument would require sustaining that EIGs and their investors performed that activity jointly, but the decision stated something else and, indeed, it sustained that the investors did not perform any shipping activity (paragraph 175). In view of these contradictions, the EGC identifies at least one absolute lack of reasoning that led it to also reject this ground.

In short, in view of the foregoing, the judgment concludes that the Commission has not under any circumstances established that the STLS is selective in relation to the investors (paragraph 180). As the element of selectivity has not been found, there can be no discussion of state aid.

Moreover, considering that there is no element of selectivity (necessary to identify aid), the judgment rules that the Commission has also not proven that the STLS affects exchanges and competition within the EU. In this regard, if the investors act in all sectors of the economy, the Commission should have explained with a minimum of reasoning how distortion of competition could have been generated in that variety of sectors, and it has not done so.

Effects on recovery procedures at national level

The overturning of the decision entails the unenforceability of that decision and of any acts issued in the execution thereof. Thus, as a result of the EGC judgment, operators are not obliged to reimburse any amount.

In all likelihood, the Commission will file an appeal for cassation before the ECJ (it has two months to do so), which would have the final say. In the meantime, the recovery procedures at national level should, in the very least, be suspended until a decision is handed down on the potential cassation appeal.

Rafael Calvo (rafael.calvo@garrigues.com) and Juan Salvador Pastoriza (salvador.pastoriza@garrigues.com), Madrid

Garrigues

Website: www.garrigues.com

more across site & bottom lb ros

More from across our site

The 61-year-old has run the firm’s UK business since 2020
The report, which again demanded PwC release more information related to the scandal, “did not go far enough”, Australian Greens Senator Barbara Pocock told ITR
Resources needed to manage new compliance and financial reporting requirements will be significant, BDO also said
Interested parties may submit their comments on proposed bills and the subsidiary legislation by July 5
The Australian government has run roughshod over professional tax bodies with untested reporting obligations to please a mob baying for PwC’s blood, writes Tom Ravlic
Technical excellence is paramount for clients looking to hire new advisers, according to a survey of nearly 29,000 corporate counsel
The EU nation currently has a headline rate of 25%; in other news, DLA Piper and RSM UK have strengthened their tax teams
Labour's plans for closing the tax gap suggest that taxpayers may face an increasingly aggressive HMRC
Rosenberg, Siemens' New York-based chief tax counsel, tells ITR about Ben Affleck comparisons, welcoming challenges from US tax authorities and what makes tax cool
The settlement means the IRS will receive $200 million from the defunct crypto exchange’s bankruptcy, a fraction of the claim value
Gift this article