13.3.2017

EN

Official Journal of the European Union

C 78/36

(Case T-20/17)

(2017/C 078/50)

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: M.Z. Fehér and E.Zs. Tóth)

Defendant: European Commission

Form of order sought

—Annul Commission Decision C(2016) 6929 final of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover;

—In the alternative, annul the part of the contested decision which classifies the version of the legislation following the amendment of 2015 as unlawful State aid;

—Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three plea(s) in law.

1.First plea in law, alleging that the tax on advertisement was erroneously classified as State aid. The contested decision is unlawful because the Commission erroneously classifies the Hungarian legislation in question as State aid; neither the system of progressive rates in bands, with bands and rates based on objective criteria, nor the reduction in the tax base for failing undertakings, or the applicability of the new system of rates to previous tax years constitute State aid.

2.Second plea in law, alleging breach of the obligation to state reasons. The Commission failed to fulfill its obligation to state reasons in classifying as unlawful State aid the legislation on tax on advertisement both in the version amended in 2014 and in the version amended in 2015 without having examined the substantive difference between the two laws. The contested decision did not indicate which legislative exemption allowed an undertaking to enjoy a financial advantage compared with another undertaking in the same position; it did not explain why the progressive rate system was not part of the reference system; it did not indicate what category of undertaking was placed at an exclusive advantage by the system of progressive tax rates in bands and did not indicate why it did not consider the demonstration by the Hungarian authorities of the costs arising for taxable persons and for the tax authorities to be satisfactory.

3.Third plea in law, alleging abuse of powers. The Commission misused the power granted in the area of review of State aid in adopting the contested decision, that is when it prohibited as unlawful State aid the collection of taxes on the basis of tax legislation falling exclusively within the competence of the Member States, disregarding the fact that there is no case-law whatsoever of either the Court of Justice or the General Court on the question of whether or not the tax system in question can be classified as State aid.