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Newsalert
10 March 2015
Spanish financial goodwill: appeals brought by
the EC before the CJEU
Background
EU Direct Tax Group
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For more information, please do not
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Carlos Concha - PwC Spain
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Antonio Puentes – PwC Spain
+34 915 684 541
[email protected]
or your usual PwC contact or any other
member of the State Aid Working
Group (SAWG)
That single ground of appeal consists of
In 2009 the European Commission (EC) two parts, which derive from the alleged
found that the Spanish rules allowing error of law:
companies to amortise for tax purposes
the financial goodwill arising from  In the first place, the General Court
acquisitions
of
non-Spanish
EU
erred by requiring, in order to
shareholdings was incompatible with the
demonstrate that a measure is
State aid rules (“the First Decision”).
selective, the identification of a
category of undertakings with specific
In a second decision dated January 2011,
and
inherent
characteristics
the EC concluded that the scheme was
(identifiable
ex
ante);
and
also incompatible as regards acquisitions
of non-EU shareholdings (“the Second
 In the second place, the General Court
Decision”).
incorrectly interpreted the concept of
The EC ordered the recovery of the illegal
selectivity by making an artificial
aid, but taking into account the existence
distinction between aid to the export
of legitimate expectations, the recovery
of goods and aid to the export of
only affected aid granted in connection
capital.
with acquisitions made post 21 December
2007 (or even 21 May 2011, in the case of In light of the above, the EC asks the
some non-EU acquisitions).
CJEU to:
In two judgments issued on 7 November
2014 (T-219/10 Autogrill v Commission,  Set aside the judgments under appeal;
and T-399/11 Banco Santander and  refer the cases back to the General
Court; and
Santusa v Commission), the General
Court of the European Union annulled  reserve the costs.
two previous EC decisions which
declared the Spanish financial goodwill
Implications of these EC appeals
amortisation
regime
State
aid
incompatible with the Internal Market.
Following these appeals by the EC, the
CJEU will have the last word regarding
Appeal decisions of the EC
the validity of Spanish financial goodwill
On 9 March 2015, the Official Journal of tax amortization regime.
the EU announced that the EC has filed
A Third EC Decision of 15 October 2014
two appeals with the CJEU (Grand
dealt with the application of the Spanish
Chamber) against the General Court’s
financial goodwill regime to indirect
judgments of 7 November 2014. The case
shareholdings. The CJEU judgments
reference numbers are: C-20/15 P & Carguably will have a knock-on effect to
21/15 P.
the extent that the legal basis and
selectivity analysis are virtually identical
The pleas in law and main arguments
in all three EC Decisions.
brought forward by the EC in these
appeals stress that the General Court In the meantime, taxpayers affected by
erred in law by incorrectly interpreting the aforementioned Decisions should
Article 107 (1) TFEU and, in particular, assess, in case-by-case basis, what
the concept of selectivity of State aid individual actions should be taken in
contained in that article.
order to safeguard their rights.
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