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10. The Commission contended, in its defence, that the action was inadmissible on the ground that the contested decision did not... · редакция 1 → 2 · зафиксировано 2026-09-05 02:05 · +4 −4 lines

OPINION OF ADVOCATE GENERAL
14. In its response, the Government of Gibraltar argues that, contrary to the General Court’s ruling in the order under appeal, the decision at issue produced binding legal effects despite being a preparatory act within the State aid control system. According to the Government of Gibraltar, the General Court’s distinction between Commission decisions initiating the formal investigation procedure in respect of measures in the course of implementation as new aid, and measures that have already been implemented is not supported by the case-law of the Court of Justice. It refers, in particular, to the judgments of 11 March 2010, CELF and ministre de la Culture et de la Communication , ( 13 ) of 24 October 2013, Deutsche Post v Commission , ( 14 ) and of 21 November 2013, Deutsche Lufthansa . ( 15 )
15. That line of argument has been fully endorsed by the appellants in their reply. They emphasise, in particular, the risk that proceedings may be brought before the courts of Gibraltar seeking an order for the immediate recovery of the disputed exemption.
15. That line of argument has been fully endorsed by the appellants in their reply. They emphasise, in particular, the risk that proceedings may be brought before the courts of Gibraltar seeking an order for the immediate recovery of the aid resulting from the disputed exemption.
16. The appellants and the Government of Gibraltar submit that the Court should i) set aside the order under appeal; ii) rule that the application at first instance is admissible; iii) give final judgment in the present case and annul the decision at issue; iv) order the Commission to pay the costs in the proceedings before the Court of Justice and the General Court; v) in the alternative, refer the matter back to the General Court for consideration of the merits. The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.
33. As a consequence, the decision by the Commission to open the formal investigation procedure cannot release the national courts from their duty to safeguard the rights of individuals faced with a possible breach of the standstill obligation. ( 34 )
34. For the same reasons, in the discharge of their functions, national courts enjoy a ‘degree of independence’ from intervention by the Commission. ( 35 ) Accordingly, a Commission decision that finds aid to be compatible with the internal market does not have the effect of regularising implementing measures taken in disregard of the standstill obligation, since ‘otherwise the direct effect of [the last sentence of Article 108(3) TFEU] would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded’. ( 36 ) Similarly, the Court has stated that, although they are not obliged to do so under EU law, national courts may, within the framework of their domestic law, and if appropriate, order the recovery of an unlawful aid declared compatible with the internal market by the Commission ( 37 ) or uphold claims for compensation for damage caused by reason of the unlawful nature of the aid. ( 38 )
34. For the same reasons, in the discharge of their functions, national courts enjoy a ‘degree of independence’ from intervention by the Commission. ( 35 ) Accordingly, a Commission decision that finds aid to be compatible with the internal market does not have the effect of regularising implementing measures taken in disregard of the standstill obligation, since ‘otherwise the direct effect of [the last sentence of Article 108(3) TFEU] would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded’. ( 36 ) Similarly, the Court has stated that, although they are not obliged to do so under EU law, national courts may, within the framework of their domestic law, and if appropriate, order the recovery of an unlawfully implemented aid declared compatible with the internal market by the Commission ( 37 ) or uphold claims for compensation for damage caused by reason of the unlawful nature of the aid. ( 38 )
35. That having been clarified, the scope of the duty of national courts to safeguard the rights of individuals faced with a possible breach of Article 108(3) TFEU ‘may vary’ depending on whether the Commission has initiated the formal investigation procedure. As the Court stated in the judgment in Deutsche Lufthansa – to which the appellants and the Government of Gibraltar refer extensively – while the assessments carried out in the decision to initiate that procedure are indeed preliminary in nature, ‘that does not mean that that decision lacks legal effects’. ( 39 )
9 The Commission recalled that the advance tax ruling granted to MJN GibCo on 11 September 2012 confirmed the non-taxation, in respect of that company, of income generated by intellectual property royalties as a result of its shareholding in a Dutch limited partnership, within the MJN group. In the Commission’s view, following the amendment to the Gibraltar Income Tax Act 2010, which was enacted in 2013 and came into force on 1 January 2014, providing that royalty income was subject to taxation in Gibraltar irrespective of its source, the Gibraltar authorities should have considered that MJN GibCo was taxable on intellectual property royalties received after 1 January 2014. Accordingly, the Commission considered that the continuation of MJN GibCo’s 2012 advance tax ruling, following the 2013 amendment to the Gibraltar Income Tax Act 2010 until its dissolution, should be considered to be the measure in question. Following a preliminary examination of the measure in question, the Commission provisionally considered that that measure conferred State aid on MJN GibCo in the form of an exemption from corporation tax, which was potentially incompatible with the internal market.
10 OJ 2020 L 29, p. 7. In accordance with Article 92(1) of the Withdrawal Agreement concerning ‘ongoing administrative procedures’, the EU institutions continued to be competent for administrative procedures governed by Regulation 2015/1589 which were initiated before the end of the transition period on 31 December 2020. Article 92(3)(a) of the Withdrawal Agreement provides that an administrative procedure on State aid is to be considered as having been initiated at the moment at which the procedure has been allocated a case number. The appellants claimed, at first instance, that, as the case file SA.34914 and all associated procedures were closed and terminated by the adoption of the 2018 final decision, there was no ‘ongoing procedure’ and, therefore, the Commission could not rely on Article 92(3)(a) of the Withdrawal Agreement in order to establish its competence to adopt the decision at issue.
10 OJ 2019 C 384I, p. 1. In accordance with Article 92(1) of the Withdrawal Agreement concerning ‘ongoing administrative procedures’, the EU institutions continued to be competent for administrative procedures governed by Regulation 2015/1589 which were initiated before the end of the transition period on 31 December 2020. Article 92(3)(a) of the Withdrawal Agreement provides that an administrative procedure on State aid is to be considered as having been initiated at the moment at which the procedure has been allocated a case number. The appellants claimed, at first instance, that, as the case file SA.34914 and all associated procedures were closed and terminated by the adoption of the 2018 final decision, there was no ‘ongoing procedure’ and, therefore, the Commission could not rely on Article 92(3)(a) of the Withdrawal Agreement in order to establish its competence to adopt the decision at issue.
11 See the order under appeal, paragraphs 43 to 59.
21 See, to that effect, judgments of 5 October 1994, Italy v Commission (C‑47/91, ‘the judgment in Italgrani ’, EU:C:1994:358, paragraph 24), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 18 and the case-law cited).
22 See, to that effect, judgments of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 56 and the case-law cited), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 36 and the case-law cited).
22 See, to that effect, judgments of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 56 and the case-law cited), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraphs 19 and 36 and the case-law cited).
23 Judgment of 15 July 1964 (6/64, EU:C:1964:66).
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