(Case T-696/17)

Language of the case: Dutch

Parties

Applicants: Havenbedrijf Antwerpen NV (Antwerp, Belgium) and Maatschappij van de Brugse Zeehaven NV (Zeebrugge, Belgium) (represented by: P. Wytinck, W. Panis and I. Letten, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—declare the application for annulment admissible;

—annul Decision C(2017) 5174 final of the European Commission of 27 July 2017 concerning state aid scheme No SA.38393 (2016/C, ex 2015/E) — Ports taxation in Belgium, implemented by Belgium;

—in the alternative, grant a transitional period until such time that the Commission has completed its investigation into the tax regime of the various ports in the EU, amounting, in any event, to one full year;

—order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on four pleas in law.

1.First plea in law, alleging infringement of Article 107 TFEU and Article 296 TFEU.

—The Commission infringes Article 107 TFEU in so far as it incorrectly considers there to be a ‘market’ on which the port authorities provide their services.

—The port authorities’ main activities, namely providing access to ports and making lands available by means of domain concessions, involve activities that are non-economic in nature. At the very least, the Commission did not justify the opposite conclusion in an adequate manner, thereby infringing Article 296 TFEU.

2.Second plea in law, alleging infringement of Article 107 TFEU in so far as the Commission wrongly qualifies the measure as selective.

Making the port authorities subject to the regime of tax on legal persons is not a derogation from the ‘reference system’ since the tax on legal persons is a reference system in itself. The liability of the port authorities to the tax on legal persons is explained by the fact that the management of the ports as a public domain is a public task which is not subject to corporation tax. The port authorities still perform, in essence, a public service, on a non-profit basis, in accordance with the conditions of the legislature and under administrative supervision.

3.Third plea in law, alleging infringement of Article 107 TFEU in so far as the derogation from the reference system is, in any event, justified.

Even if corporation tax were to be regarded as the Belgian reference system — which it is not — not subjecting the port authorities to it is justifiable. This follows from the overall coherence of the tax system and from the fact that the applicants are not in a factual and legal situation comparable to that of undertakings subject to corporation tax. Liability to corporation tax would, moreover, have a punitive effect.

4.Fourth plea in law, in the further alternative, concerning a request for a transitional period until such time that the Commission has completed its investigation into the tax regime of the various ports in the EU, amounting, in any event, to one full year.

—In the case against the Netherlands, the Commission gave the Netherlands legislature one full year in order for it to amend its legislation; the ports thus also had a year to prepare for the new situation. There is no justification for why the applicants should be granted a shorter period to adapt to the new situation.

—Prohibiting the measure in one Member State, when ports in other Member States can still enjoy its effects, in no way benefits the level playing field between the ports (not the port authorities). On the contrary, instead of eliminating inequality, it actually creates an unequal situation between the ports in the various Member States.