25.3.2019

Official Journal of the European Union

C 112/37

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(Case C-65/19 P)

(2019/C 112/43)

Language of the case: Spanish

Parties

Appellant: Kingdom of Spain (represented by: M. A. Sampol Pucurull, acting as Agent)

Other parties to the proceedings: Banco Santander, S.A. and Santusa Holding, S.L, and the European Commission

Interveners in support of the applicants at first instance: Federal Republic of Germany, and Ireland

Form of order sought

The appellant submits that the Court should:

—Uphold the present appeal and set aside the judgment of the General Court of 15 November 2018, in Case T-399/11 RENV Banco Santander, S.A. and Santusa Holding, S.L. v European Commission; (1)

—Annul Article 1(1) of the contested decision in so far as Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (2) considers that the tax measure at issue constitutes State aid; and

—Order the European Commission to pay the costs.

Grounds of appeal and main arguments

The appeal is founded on a single ground of appeal which ought to lead to the setting aside of the judgment under appeal. Spain submits that the General Court erred in law, for the purposes of Article 58 of the Statute of the Court of Justice, in its erroneous interpretation of Article 107(1) of the Treaty (TFEU) and, in particular, the concept of the selectivity of State aid contained in that article. The single ground of appeal can be divided into four parts:

—In the first place, Spain submits that the General Court erred in determining the reference system for the tax measure, which does not coincide with that contained in the contested decision;

—In the second place, Spain submits that the General Court erred in law by failing to find that the tax treatment of financial goodwill constitutes a general measure or an independent or specific framework;

—In the third place, Spain maintains that the General Court also erred in law in incorrectly defining the objective of the reference framework and in incorrectly conducting the comparison required by the judgment given on appeal in World Duty Free; (3)

—In the fourth place, the error committed in identifying a constituent element of the reference framework entails an error of law in the attribution of the burden of proof.

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(1) Judgment of 15 November 2018, Banco Santander, S.A. and Santusa Holding, S.L. v Commission (T-399/11 RENV, EU:T:2018:787).

(2) OJ 2011 L 135, p. 1.

(3) Judgment of 21 December 2016, Commission v World Duty Free Group and Others (C-20/15 P and C-21/16 P, EU:C:2016:981).

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