Judgment of the Court of Justice Fifth Chamber of 2 February 2023, Spain and Others v Commission, C-649/20 P, C-658/20 P and C-662/20 P

• Date: 02 February 2023
• Year: 2023

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In the second place, the Court specifies that Article 23 of Regulation No 805/2004 permits the

simultaneous application of the measures limiting the enforcement proceedings and requiring the

provision of security laid down in subparagraphs (a) and (b),

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but that it does not permit the

simultaneous application of either one of those two measures and that staying the enforcement

proceedings under subparagraph (c).

In the third and last place, the Court rules that, where the enforceability of a judgment certified as a

European Enforcement Order has been suspended in the Member State of origin and the certificate

referred to in Article 6(2) of Regulation No 805/2004 has been produced before the court of the

Member State of enforcement, that court is required to stay, on the basis of that judgment, the

enforcement proceedings initiated in the latter State

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.

III. COMPETITION

1. STATE AID

Judgment of the Court of Justice (Fifth Chamber) of 2 February 2023, Spain and Others v

Commission, C-649/20 P, C-658/20 P and C-662/20 P

Link to the full text of the judgment

Appeal – State aid – Article 107(1) TFEU – Tax regime applicable to certain finance lease agreements for

the purchase of ships (Spanish tax lease system) – Condition relating to selectivity – Obligation to state

reasons – Principle of the protection of legitimate expectations – Principle of legal certainty – Recovery of

the aid

In 2006, several complaints were made to the European Commission concerning the application of

the ‘Spanish tax lease system’ (‘the STL system’) to certain finance lease agreements in so far as that

system enabled shipping companies to purchase ships built by Spanish shipyards at a 20% to 30%

rebate, to the detriment of shipyards in other Member States. According to the Commission, the

objective of the STL system was to allow economic interest groupings (‘EIGs’) and the investors

involved in those EIGs to benefit from tax advantages, which they then transferred in part to shipping

companies that had purchased a new vessel.

In the contested decision,

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adopted in July 2013, the Commission took the view that three of the five

tax measures comprising the STL system were State aid, within the meaning of Article 107(1) TFEU,

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Those measures seek to limit the enforcement proceedings to protective measures (a) and to make enforcement conditional on the

provision of such security as determined by the competent court or authority in the Member State of enforcement (b) respectively.

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On that issue, the Court rules on the basis of Article 6(2) of Regulation No 805/2004, read in conjunction with Article 11.

Article 6 of Regulation No 805/2004, entitled ‘Requirements for certification as a European Enforcement Order’, provides, in paragraph 2:

‘Where a judgment certified as a European Enforcement Order has ceased to be enforceable or its enforceability has been suspended or

limited, a certificate indicating the lack or limitation of enforceability shall, upon application at any time to the court of origin, be issued,

using the standard form in Annex IV.’

Article 11 of that regulation, entitled ‘Effects of the European Enforcement Order certificate’, states, for its part: ‘The European Enforcement

Order certificate shall take effect only within the limits of the enforceability of the judgment.’

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Commission Decision 2014/200/EU of 17 July 2013 on the aid scheme SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain – Tax

scheme applicable to certain finance lease agreements also known as the Spanish Tax Lease System (OJ 2014 L 114, p. 1).