1.

Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national rules or collective agreements which provide for the granting of days of paid annual leave which exceed the minimum period of 4 weeks laid down in that provision, and yet exclude the carrying over of those days of leave on the grounds of illness.

2.

Article 31(2) of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 51(1) thereof, must be interpreted as meaning that it is not intended to apply where such national rules or collective agreements exist.

1.

A provision of national law, such as that at issue in the main proceedings, which reproduces verbatim the provisions of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, must — in so far as it applies to vehicles with a maximum permissible mass of more than 2.8 tonnes but not exceeding 3.5 tonnes and which, as a result, do not fall within the scope of Regulation No 561/2006, as amended by Regulation No 165/2014 — be interpreted exclusively on the basis of EU law, as interpreted by the Court of Justice, where those provisions have, directly and unconditionally, been rendered applicable to such vehicles by national law.

2.

Article 13(1)(d) of Regulation No 561/2006, as amended by Regulation No 165/2014, must be interpreted as meaning that the exception which it lays down covers only vehicles or combinations of vehicles that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service.

3.

Article 3(1) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, must be interpreted as meaning that the fact that add-on services — such as collection with or without a time slot, a minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery and a preferred delivery day and time — are provided in connection with an item precludes that item from being regarded as being delivered within the scope of the ‘universal service’ under that provision and, therefore, as being an item delivered ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006, as amended by Regulation No 165/2014.

1.

Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges, in particular Article 3, Article 6(5)(a) and Article 11(1) and (7) thereof, must be interpreted as precluding a national provision that allows an airport managing body to determine, together with an airport user, airport charges different from those set by that body and approved by the independent supervisory authority, within the meaning of that directive.

2.

Directive 2009/12 must be interpreted as precluding an interpretation of national law whereby an airport user is prevented from challenging directly the decision of the independent supervisory authority approving the charging system, but can bring an action against the airport managing body before a civil court and can plead in that action only that the charges determined in the charging system that that user must pay are inequitable.

1.

It is no longer necessary to answer questions referred by the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court, Poland) in Case C-585/18 or the first question referred by the same court in Cases C-624/18 and C-625/18.

2.

The answer to the second and third questions referred by the referring court in Cases C-624/18 and C-625/18 is as follows:

1.

Dismisses the appeal;

2.

Orders the Portuguese Republic to pay the costs.

1.

Does the concept of school or university education within the meaning of Article 132(1)(i) and (j) of Council Directive 2006/112/EC (1)of 28 November 2006 on the common system of value added tax also include swimming tuition?

2.

Can the recognition of an organisation within the meaning of Article 132(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax as an organisation having objects similar to those of bodies governed by public law that have as their aim the provision of children’s or young people’s education, school or university education, vocational training or retraining result from the fact that the tuition provided by that organisation enables participants to learn a fundamental ability (in this case: swimming)?

3.

If the second question is answered in the negative: Does the tax exemption pursuant to Article 132(1)(j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax require that the taxable person be an individual trader?

1.

Is Article 59a(b) of Directive 2006/112/EC, (1) as amended by Article 2 of Directive 2008/8/EC, (2) to be interpreted as meaning that the use of roaming services in a Member State in the form of access to the national mobile telephone network for the purpose of establishing incoming and outgoing connections by a ‘non-taxable end customer’ temporarily resident in that Member State constitutes ‘use and enjoyment’ in that Member State which justifies the transfer of the place of supply from the third country to that Member State, even though neither the mobile telephone operator providing the services nor the end customer are established in Community territory and the end customer does not have his permanent address and does not usually reside in the Community?

2.

Is Article 59a(b) of Directive 2006/112, as amended by Article 2 of Directive 2008/8, to be interpreted as meaning that the place of supply of telecommunications services as described in Question 1, which are outside the Community according to Article 59 of Directive 2006/112, as amended by Article 2 of Directive 2008/8, may be transferred to the territory of a Member State even though neither the mobile telephone operator providing the services nor the end customer are established in Community territory and the end customer does not have his permanent address and does not usually reside in the Community, simply because the telecommunications services in the third country are not subject to a tax comparable to VAT under EU law?

1.

In the case of a counterclaim seeking a declaration that an EU trade mark has lapsed, which was filed prior to the expiry of the period of five years of non-use, is the establishment of the date which is decisive for the calculation of the period of non-use in the context of the application of Article 51(1)(a) CTMR (1) and Article 58(1)(a) EUTMR (2) covered by the provisions of the Community Trade Mark Regulation and the European Union Trade Mark Regulation?

2.

If Question 1 is to be answered in the affirmative: In the calculation of the period of five years of non-use pursuant to Article 51(1)(a) CTMR and Article 58(1)(a) EUTMR in the case of a counterclaim, filed prior to expiry of the period of five years of non-use, for a declaration that an EU trade mark has lapsed, is account to be taken of the date of filing of the counterclaim or of the date of the last hearing in the appeal on the merits?

1.

Is Article 14(3) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, (1) with regard to recital 50 thereof, to be interpreted as meaning that the ‘amount [to be paid by the consumer] which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract’ is to be calculated on a purely pro rata temporis basis in the case of a contract according to the content of which an overall service made up of several sub-services, rather than a single service, is to be provided, if the consumer pays for the overall service on a pro rata temporis basis, but the sub-services are provided within different intervals?

2.

Is Article 14(3) of Directive 2011/83 to be interpreted as meaning that the ‘amount [to be paid by the consumer] which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract’ is to be calculated on a purely pro rata temporis basis even if a (sub-)service is continuously provided, but has a higher or lower value for the consumer at the beginning of the contract term?

3.

Are Article 2.11 of Directive 2011/83 and Article 2.1 of Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 (2) to be interpreted as meaning that files which are supplied as a sub-service within the scope of an overall service principally provided as a ‘digital service’ within the meaning of Article 2.2 of Directive 2019/770 may also constitute ‘digital content’ within the meaning of Article 2.11 of Directive 2011/83 and Article 2.1 of Directive 2019/770, with the result that the trader could terminate the right of withdrawal under Article 16(m) of Directive 2011/83 with regard to the sub-service, but the consumer, if the trader fails to do so, could withdraw from the contract as a whole and would not have to pay compensation for that sub-service by reason of Article 14(4)(b)(ii) of Directive 2011/83?

4.

Is Article 14(3) of Directive 2011/83, with regard to recital 50 thereof, to be interpreted as meaning that the total price contractually agreed for a service within the meaning of the third sentence of Article 14(3) of Directive 2011/83 is ‘excessive’ if it is significantly higher than the total price agreed with another consumer for a service that is identical in terms of content provided by the same trader for the same contract term and, furthermore, under the same framework conditions?

1.

Is Article 5(2), sentence 2, letter (a) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (1) to be interpreted and applied as meaning that a need for the use of defeat devices within the meaning of that provision is only to be found if, even using the state-of-the-art technology available when type approval was obtained for the vehicle model in question, the protection of the engine against damage or accident and the safe operation of the vehicle could not be guaranteed?

2.

Question 2, in the event that question 1 is answered in the affirmative:

Question 2, in the event that question 1 is answered in the negative:

1.

Does the concept of a ‘restaurant service’ to which a reduced rate of VAT applies (Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in conjunction with point (12a) of Annex III thereto and with Article 6 of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, (2) cover the sale of prepared dishes under conditions such as those in the main proceedings, that is to say, in a situation where:

2.

Is the way in which the dishes are prepared, consisting in, in particular, the heating of certain semi-finished products and the composing of prepared dishes from semi-finished products, relevant to answering the first question?

3.

In order to answer the first question, is it sufficient that the customer is potentially able to use the infrastructure offered or is it also necessary to establish that, for the average customer, this element constitutes an essential part of the service provided?

1.

Are payments which the purchaser of a product makes in addition to the purchase price, depending on his sales revenues, once a year for four years, in order to be able to sell the product

royalties and licence fees within the meaning of Article 32(1)(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (CC) (1) which are to be added to the price actually paid or payable for the imported goods under Article 32(5)(b) CC in conjunction with Article 157(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (CCIR) (2)?

2.

Are such payments, where appropriate, to be added to the price paid or payable for the imported goods only on a proportional basis and, if so, on the basis of which criterion?

1.

2.

1.

In the event of a strike, is the cancellation or long delay in the arrival of a flight caused by extraordinary circumstances within the meaning of Article 5(3) of Regulation (EC) No 261/2004 (1) even if the flight at issue was not directly affected by the strike and could have proceeded as scheduled, but was cancelled or delayed due to measures taken by the air carrier to reorganise the flight schedule as a result of the strike (in this case, the use of the aircraft intended for the flight in order to remedy the consequences of the strike)?

2.

In the event that an air carrier may also be released from liability in the case of a reorganisation measure:

Is it essential that the reorganisation measure had already been taken before the strike began, when it was not yet foreseeable which flight would ultimately be affected by the strike action, or is exculpation possible also if the flight schedule was reorganised only during or after the strike and it was already established that the flight at issue was not directly affected by the strike?

1.

Should Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does n contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?

2.

In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation [[…] No 1215/2012 […]], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

1.

Can a service involving funds being made available by the applicant, which is not a financial institution, for payment of a one-off fee of 1 %, be regarded as ‘the granting and the negotiation of credit and the management of credit by the person granting it’ within the meaning of Article 135(1)(b) of the VAT Directive, (1) despite the fact that the applicant is not formally referred to as the lender in the contract?

2.

Is a bill of exchange, that is to say a security containing an obligation on the issuer to pay a specific amount of money to the person designated as the creditor in the security in question or to the person who subsequently acquired that the security in an manner prescribed by law, regarded as an ‘other negotiable instrument’ within the meaning of Article 135(1)(d) of the VAT Directive?

3.

Does the applicant’s service, by which, for a fee of 1 % of the amount of the bill of exchange charged to the issuer thereof, it transferred the bill of exchange obtained to a factoring company, and transferred the amount obtained from the factoring company to the issuer of the bill of exchange, and guaranteed to the factoring company that the issuer of the bill of exchange will pay the liability arising from the bill of exchange when it becomes due, constitute:

1.

Does the fact that a national court has a significantly heavier workload than the other courts of the same instance and the judges of that court are therefore prevented from examining the documents submitted to them on the basis of which provisional enforceability is to be ordered or may be ordered and at the same time from delivering their decisions within a reasonable period of time constitute, as such, an infringement of the EU law on consumer protection or of other fundamental rights?

2.

Must the national court refuse to issue decisions, which may result in enforcement if the consumer does not object to them, if it has a serious suspicion that the application is based on an unfair term in a consumer contract, without the case file containing any compelling evidence of that?

3.

If the second question is answered in the negative, is it permissible for the national court, if it has such a suspicion, to request additional evidence from the trading party to the contract, even though, under national law, it does not have such power in the procedure in which a potentially enforceable decision is given, so long as the debtor does not raise an objection?

4.

Are the requirements for the establishment of certain circumstances by the national court of its own motion, as introduced by EU law in connection with directives harmonising consumer law, also applicable in cases where the national legislature offers consumers additional protection (more rights) via a national law transposing a provision of a directive which allows such enhanced protection to be granted?

1.

Does the interpretation of Article 5(2) of the United Nations Convention on the Rights of Persons with Disabilities and of Article [2](1), (2) and (3) and Article 4(1) of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation lead to the conclusion that it is permissible for a person without the ability to see to be able to work as a court assessor and participate in criminal proceedings, or:

2.

Is the specific disability of a permanently blind person a characteristic which constitutes a genuine and determining requirement of the activity of a court assessor, the existence of which justifies a difference of treatment and does not constitute discrimination based on the characteristic of ‘disability’?

—

set aside the judgment of the General Court of 10 September 2019 in Case T-883/16;

—

refer Case T-883/16 back to the General Court of the European Union;

—

order that costs be reserved.

1.

First ground of appeal: The principle of energy solidarity is not a legal criterion, and does not impose on executive bodies an obligation to act

The principle of energy solidarity in Article 194 TFEU is, as a general guiding principal, a purely political notion and not a legal criterion.

The primary law principle of energy solidarity cannot give rise to specific rights and obligations for the European Union and/or for the Member States. In particular, no obligations flow from that abstract guiding principal for executive bodies, such as verification obligations on the European Commission as part of its decision-making.

On account of its abstract and indeterminable nature, the concept of energy solidarity is not justiciable.

2.

Second ground of appeal: The principle of energy solidarity was not applicable in the present case

The principle of energy solidarity is purely a contingency mechanism, which applies only in exceptional cases and in restricted circumstances, and does not have to be taken into account in every decision of the European Commission.

The conditions required for application of the contingency mechanism in the context of contested Commission Decision C(2016)6950 are not satisfied.

3.

Third ground of appeal: The European Commission observed the principle of energy solidarity

To the extent that the principle of energy solidarity is in fact applicable to contested Commission Decision C(2016)6950 (quod non), the European Commission observed the principle in arriving at its decision:

The European Commission took into account the effects on both the Polish gas market and the European gas market as a whole in arriving at its decision.

When examining the conditions under Article 36(1)(a) of Directive 2009/73/EC, it was necessary only to ensure security of supply as an expression of the principle of energy solidarity.

Security of supply in Poland was, and is, not at risk.

4.

Fourth ground of appeal: It was not necessary for the principle of energy solidarity to be referred to expressly in the decision

It was not necessary for all of the reasons for contested Commission Decision C(2016)6950 to be mentioned explicitly. There are no procedural requirements specifying to what extent the European administration must give reasons for its decisions.

The statement of reasons for administrative measures need only indicate the aim which the measure pursues, and does not have to state all relevant legal and factual considerations.

The validity of the European Commission’s decisions cannot depend on whether certain terms are contained in the decision.

5.

Fifth ground of appeal: Contested Commission Decision C(2016)6950 cannot be annulled simply on account of an alleged procedural error

Even if contested Commission Decision C(2016)6950 had been unlawful on procedural grounds (quod non), that would not have led to it being annulled because substantively correct decisions are, in principle, not to be annulled under the second paragraph of Article 263 TFEU simply on account of a possible procedural error.

—

set aside the judgment of the General Court in Case T-629/17;

—

annul Commission Implementing Decision C(2017)4682;

—

order the Commission to pay the costs.

1.

Dismisses the action;

2.

Orders Yieh United Steel Corp. to bear its own costs and to pay those incurred by the European Commission and by Eurofer, Association européenne de l’acier, ASBL.

1)

Annuls Ralph Pethke’s appraisal report for 2016 and the decision of the European Union Intellectual Property Office (EUIPO) of 18 October 2017 rejecting the complaint made by Mr Pethke;

2)

Orders EUIPO to bear its own costs and to pay those incurred by Mr Pethke.

1.

Dismisses the action;

2.

Orders Dr. August Wolff GmbH & Co. KG Arzneimittel to bear its own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO) and by Faes Farma, SA, including those necessarily incurred by Faes Farma, SA, before the Board of Appeal of EUIPO.

1.

Dismisses the action;

2.

Orders Hästens Sängar AB to pay the costs.

1.

Dismisses the action.

2.

Orders Soundio A/S to pay the costs.

1)

Annuls the decision of the Secretary General of the European Parliament of 4 October 2018 concerning the recovery from Joëlle Mélin of a sum of EUR 130 339,35 unduly paid as parliamentary assistance and of the corresponding debit note of 10 October 2018;

2)

Orders the Parliament to pay the costs.

1.

Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 October 2018 (Case R 572/2018-4);

2.

Orders EUIPO to bear its own costs and to pay the costs incurred by Runnebaum Invest GmbH;

3.

Orders Berg Toys Beheer BV to bear its own costs.

1)

There is no longer any need to adjudicate on the action.

2)

Pyke Srl and Paglieri SpA shall bear their own costs, and each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

1)

Dismisses the application for interim measures.

2)

Reserves the costs.

—

annul the ECB’s decision of 15 August 2019 that Bank X is failing or likely to fail; and

—

order the defendant to pay the costs.

1.

First plea in law, alleging that the ECB lacked the competence to adopt the contested decision.

2.

Second plea in law, alleging that the contested decision is an impermissible type of decision.

3.

Third plea in law, alleging that the ECB distorted the facts and violated its obligation to assess impartially and objectively all the relevant facts.

4.

Fourth plea in law, alleging that the contested decision is vitiated procedurally because it is based on an illegal on-site inspection.

5.

Fifth plea in law, alleging that the contested decision violates the principle of proportionality.

6.

Sixth plea in law, alleging that the contested decision does not include an appropriate statement of reasons.

7.

Seventh plea in law, alleging that the contested decision violates the applicants’ rights to be heard.

8.

Eighth plea in law, alleging that that the contested decision is based on the ECB’s illegal opposition to the acquisition of Bank X.

9.

Ninth plea in law, alleging that the contested decision violates the principle of equal treatment.

10.

Tenth plea in law, alleging that the contested decision violates the principles of legal certainty and legitimate expectations.

11.

Eleventh plea in law, alleging that the contested decision violates the nemo auditur principle.

12.

Twelfth plea in law, alleging that the contested decision is vitiated procedurally because the ECB failed to take appropriate steps to eliminate the influence of officials with a conflict of interest.

13.

Thirteenth plea in law, alleging that the ECB committed a détournement de pouvoir.

—

annul the SRB’s decision of 15 August 2019 with respect to Bank X, publicly announced by means of a press release and a notice summarising the decision of the same date;

—

order the defendant to pay the costs.

1.

First plea in law, alleging that the SRB lacked the competence for the contested decision.

2.

Second plea in law, alleging that the contested decision is an impermissible type of decision.

3.

Third plea in law, alleging that the contested decision is vitiated by a number of errors in connection with the ‘failing or likely to fail’ (FOLTF) assessment by the ECB.

4.

Fourth plea in law, alleging that the contested decision is vitiated by numerous errors in connection with the SRB’s further decisions.

5.

Fifth plea in law, alleging that the contested decision is vitiated procedurally because it is based on an illegal on-site inspection.

6.

Sixth plea in law, alleging that the contested decision violates the principle of proportionality.

7.

Seventh plea in law, alleging that that the contested decision does not include an appropriate statement of reasons.

8.

Eighth plea in law, alleging that the contested decision violates the applicants’ rights to be heard.

9.

Ninth plea in law, alleging that the contested decision is based on the ECB's illegal opposition to the acquisition of Bank X.

10.

Tenth plea in law, alleging that the contested decision violates the principle of equal treatment.

11.

Eleventh plea in law, alleging that that the contested decision violates the principles of legal certainty and legitimate expectations.

12.

Twelfth plea in law, alleging that the contested decision fails to take into account that the position of the applicant is largely due to misconduct by the ECB.

13.

Thirteenth plea in law, alleging that the contested decision is vitiated procedurally because it is based on the ECB’s assessment and the ECB failed to take appropriate steps to eliminate the influence of officials with a conflict of interest.

14.

Fourteenth plea in law, alleging that the SRB committed a détournement de pouvoir.

—

annul the Commission decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896;

—

alternatively, annul Article 2 of the contested decision insofar as it applies to the applicant;

—

in the further alternative, annul Article 2 of the contested decision in respect of any aid granted in the period prior to 24 November 2017 in so far as it applies to the applicant;

—

order the applicant’s costs to be paid by the Commission.

1.

First plea in law, alleging the illegality of Article 1 of the contested decision on the following grounds, in so far as it concerns a determination that the Group Financing Exemption (GFE) constitutes an (economic) advantage within the meaning of Article 107(1) TFEU, resulting, in particular, from:

2.

Second plea in law, alleging the illegality of Article 1 of the contested decision on the following grounds, in so far as it concerns a determination that the GFE constitutes a selective advantage within the meaning of Article 107(1) TFEU, resulting, in particular, from the following facts:

3.

Third plea in law, alleging the illegality of Article 2 of the contested decision on the grounds of breach of legitimate expectation and infringement of the principles of legal certainty and proportionality. Alternatively, it is argued that recovery should not be ordered in respect of any aid granted through the GFE prior to 24 November 2017, when the Commission published its opening decision.

—

annul Commission decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption in its entirety insofar as it concerns the applicant;

—

alternatively, order that, in determining the amount of aid to be recovered, losses, reliefs or exemptions which were available to the applicant (whether automatically or by way of claim or election) at the time when it claimed the Group Financing Exemption, or which would have been available to the applicant at that time (by way of group relief or otherwise) had it not claimed the Group Financing Exemption, should in either case be taken into account even if those losses, reliefs or exemptions are now no longer available to the applicant because the time limit under UK law for claiming or using them has expired; and

—

order that the defendant pay the applicant’s costs.

1.

First plea in law, alleging that the defendant has failed to establish that the Group Financing Exemption constitutes an advantage. The applicant argues that the defendant has failed to show that there is an advantage in each case where the Group Financing Exemption has been claimed. Further, the applicant argues that it chose to claim the Group Financing Exemption without considering whether its liability could have been lower if it had done an analysis under the significant people functions test in Section 371EB of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010.

2.

Second plea in law, alleging that there was no intervention by the State or through State resources. The applicant argues that the defendant has failed to prove that claiming the Group Financing Exemption has certainly led to a reduction in the UK corporate tax liability.

3.

Third plea in law, alleging that the Group Financing Exemption does not favour certain undertakings or the production of certain goods. The applicant argues that the defendant has erred by:

4.

Fourth plea in law, alleging that the Group Financing Exemption does not affect trade between Member States. The applicant argues that the defendant has erred by concluding that the Group Financing Exemption is liable to influence choices made by multinational groups as to the location of their group finance functions and their head office within the EU.

5.

Fifth plea in law, alleging that the Group Financing Exemption does not distort or threaten to distort competition. The applicant argues that the defendant has failed to prove that claiming the Group Financing Exemption has certainly led to a reduction in the UK corporate tax liability.

6.

Sixth plea in law, alleging that recovery of the alleged aid would be contrary to general principles of EU law. The applicant argues that the significant people functions test lacks legal certainty, the UK had a margin of appreciation to address that uncertainty and that the defendant has breached its duty to carry out a complete analysis of all relevant factors. By ordering the recovery of aid, the defendant has acted contrary to Article 16(1) of Council Regulation (EU) 2015/1589, (1) which prohibits the recovery of aid where recovery would be contrary to a general principle of EU law.

7.

Seventh plea in law, alleging that the selective advantage would be eliminated, and no recovery would be required, if the UK were retrospectively to extend the Group Financing Exemption to upstream lending and third-party lending. The applicant argues that the defendant has failed to acknowledge that taking such action would eliminate any selective advantage (assuming for the moment that there is one) and in such case there would be no unlawful state aid to be recovered under EU law.

8.

Eighth plea in law, alleging that, in determining the amount of the aid to be recovered, losses, reliefs or exemptions which were available to the applicant (whether by way of claim, election, or automatically) at the time when it claimed the Group Financing Exemption, or which would have been available at that time had it not claimed the Group Financing Exemption, should be taken into account even if access to those losses, reliefs or exemptions is now time barred under UK law. The applicant argues that that is the correct interpretation of recital 203 of the contested decision but, insofar as that is not the case, the contested decision is incorrect because failing to take such losses, reliefs or exemptions into account would lead to over-calculation of the amount of the aid which would introduce a distortion into the internal market.

9.

Ninth plea in law, alleging that the defendant has failed to substantiate its reasons in relation to the qualifying resources exemption and the matched interest exemption and to carry out a complete analysis of all relevant factors. The applicant argues that the defendant has failed to distinguish between three separate exemptions under Chapter 9 of the Taxation (International and Other Provisions) Act 2010 which function independently and to understand that the qualifying resources exemption and the matched interest exemption are not proxies for the significant people functions test and that the existence of the matched interest exemption in Chapter 9 of the Taxation (International and Other Provisions) Act 2010 demonstrates that the defendant has erred by defining the reference system too narrowly as the rules in Part 9A of the Taxation (International and Other Provisions) Act 2010 instead of the wider UK corporate tax system.

—

hold that there has been no unlawful State aid, annul Article 1 of Commission decision C(2019) 2526 Final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, insofar as it finds that there has been unlawful State aid and set aside the requirement for the UK to recover alleged unlawful State aid received by the applicants in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover the alleged State aid; and

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging that the Commission misunderstands the context, aim and operation of the UK Controlled Foreign Company (CFC) rules, with respect to the treatment of non-trading finance profits. The Commission’s conclusions in the contested decision are based on cumulative manifest errors. In particular, the Commission has made manifest errors in its understanding of the overall UK tax system, in its understanding of the aims of the CFC system, in the specific scope of the Group Financing Exemption and in the definition of qualifying loan relationships.

2.

Second plea in law, alleging that the Commission wrongly construes the Group Financing Exemption as a tax exemption and accordingly an advantage. In relation to non-trading finance profits, the Group Financing Exemption represents a charging provision and a part of the definition of the limits of the CFC rules, not a selective advantage. The Commission has provided no quantitative analysis to show that it is an advantage and, in the absence of cogent evidence that the measure in question results in an advantage, the contested decision cannot stand.

3.

Third plea in law, alleging that the Commission misidentified the reference system for the assessment of the effects of the CFC rules and wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system. The Commission has not correctly understood the objective of the CFC rules and has failed to consider the UK’s margin for discretion.

4.

Fourth plea in law, alleging that the Commission has shown manifest errors in its State aid analysis, and has applied the wrong tests when considering the question of comparability. The Commission failed to recognise the different level of risk to the UK tax base as between lending to a group entity which is taxable in the UK and lending to a group entity which is not taxable in the UK, and irrationally concluded that intra-group lending is comparable to third-party lending.

5.

Fifth plea in law, alleging that, even assuming that the CFC measures in question prima facie constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply under the counterfactual of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 would be the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is never justified in cases where the significant people functions test would cause a CFC charge to apply under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010. In fact, the significant people functions test is excessively difficult to apply in practice, such that the Commission should have found Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 to be justified in the context of that test as well and hence it should have concluded that there is no State aid.

6.

Sixth plea in law, alleging that if the contested decision is upheld then enforcement of it through recovery of the alleged State aid from the applicants will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicants’ case, the CFCs in question are situated in other Member States.

7.

Seventh plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

8.

Eighth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 could be applied using the significant people functions test without difficulty or disproportionate burden.

9.

Ninth plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

—

hold that there has been no unlawful State aid, annul Article 1 of Commission decision C(2019) 2526 Final of 2 April 2019 on the State aid SA.44896, insofar as it finds that there has been unlawful State aid and set aside the requirement for the UK to recover alleged unlawful State aid received by the applicants in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover the alleged State aid; and

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging that the Commission misunderstands the context, aim and operation of the UK Controlled Foreign Company (CFC) rules, with respect to the treatment of non-trading finance profits. The Commission’s conclusions in the contested decision are based on cumulative manifest errors. In particular, the Commission has made manifest errors in its understanding of the overall UK tax system, in its understanding of the aims of the CFC system, in the specific scope of the Group Financing Exemption and in the definition of qualifying loan relationships.

2.

Second plea in law, alleging that the Commission wrongly construes the Group Financing Exemption as a tax exemption and accordingly an advantage. In relation to non-trading finance profits, the Group Financing Exemption represents a charging provision and a part of the definition of the limits of the CFC rules, not a selective advantage. The Commission has provided no quantitative analysis to show that it is an advantage and, in the absence of cogent evidence that the measure in question results in an advantage, the contested decision cannot stand.

3.

Third plea in law, alleging that the Commission misidentified the reference system for the assessment of the effects of the CFC rules and wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system. The Commission has not correctly understood the objective of the CFC rules and has failed to consider the UK’s margin for discretion.

4.

Fourth plea in law, alleging that the Commission has shown manifest errors in its State aid analysis, and has applied the wrong tests when considering the question of comparability. The Commission failed to recognise the different level of risk to the UK tax base as between lending to a group entity which is taxable in the UK and lending to a group entity which is not taxable in the UK, and irrationally concluded that intra-group lending is comparable to third-party lending.

5.

Fifth plea in law, alleging that, even assuming that the CFC measures in question prima facie constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply under the counterfactual of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 would be the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is never justified in cases where the significant people functions test would cause a CFC charge to apply under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010. In fact, the significant people functions test is excessively difficult to apply in practice, such that the Commission should have found Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 to be justified in the context of that test as well and hence it should have concluded that there is no State aid.

6.

Sixth plea in law, alleging that if the contested decision is upheld then enforcement of it through recovery of the alleged State aid from the applicants will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicants’ case, the CFCs in question are situated in other Member States.

7.

Seventh plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

8.

Eighth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 could be applied using the SPF test without difficulty or disproportionate burden.

9.

Ninth plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

—

hold that there has been no unlawful State aid, annul Article 1 of Commission decision C(2019) 2526 Final of 2 April 2019 on the State aid SA.44896, insofar as it finds that there has been unlawful State aid and set aside the requirement for the UK to recover alleged unlawful State aid received by the applicants in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the Contested Decision insofar as they require the UK to recover the alleged State Aid; and

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging that the Commission misunderstands the context, aim and operation of the UK Controlled Foreign Company (CFC) rules, with respect to the treatment of non-trading finance profits. The Commission’s conclusions in the contested decision are based on cumulative manifest errors. In particular, the Commission has made manifest errors in its understanding of the overall UK tax system, in its understanding of the aims of the CFC system, in the specific scope of the Group Financing Exemption and in the definition of qualifying loan relationships.

2.

Second plea in law, alleging that the Commission wrongly construes the Group Financing Exemption as a tax exemption and accordingly an advantage. In relation to non-trading finance profits, the Group Financing Exemption represents a charging provision and a part of the definition of the limits of the CFC rules, not a selective advantage. The Commission has provided no quantitative analysis to show that it is an advantage and, in the absence of cogent evidence that the measure in question results in an advantage, the contested decision cannot stand.

3.

Third plea in law, alleging that the Commission misidentified the reference system for the assessment of the effects of the CFC rules and wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system. The Commission has not correctly understood the objective of the CFC rules and has failed to consider the UK’s margin for discretion.

4.

Fourth plea in law, alleging that the Commission has shown manifest errors in its State aid analysis, and has applied the wrong tests when considering the question of comparability. The Commission failed to recognise the different level of risk to the UK tax base as between lending to a group entity which is taxable in the UK and lending to a group entity which is not taxable in the UK, and irrationally concluded that intra-group lending is comparable to third-party lending.

5.

Fifth plea in law, alleging that, even assuming that the CFC measures in question prima facie constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply under the counterfactual of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 would be the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is never justified in cases where the significant people functions test would cause a CFC charge to apply under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010. In fact, the significant people functions test is excessively difficult to apply in practice, such that the Commission should have found Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 to be justified in the context of that test as well and hence it should have concluded that there is no State aid.

6.

Sixth plea in law, alleging that if the contested decision is upheld then enforcement of it through recovery of the alleged State aid from the applicants will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicants’ case, the CFCs in question are situated in other Member States.

7.

Seventh plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

8.

Eighth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 could be applied using the significant people functions test without difficulty or disproportionate burden.

9.

Ninth plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

—

hold that there has been no unlawful State Aid, annul Article 1 of the Commission decision of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, insofar as it finds that there has been unlawful State Aid, and set aside the requirement for the UK to recover alleged unlawful State Aid received by the applicants in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover from the applicants the alleged State Aid; and

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging that the Commission misunderstands the context, aim and operation of the UK Controlled Foreign Company (CFC) rules, with respect to the treatment of non-trading finance profits. The Commission’s conclusions in the contested decision are based on cumulative manifest errors. In particular, the Commission has made manifest errors in its understanding of the overall UK tax system, in its understanding of the aims of the CFC system, in the specific scope of the Group Financing Exemption and in the definition of qualifying loan relationships.

2.

Second plea in law, alleging that the Commission wrongly construes the Group Financing Exemption as a tax exemption and accordingly an advantage. In relation to non-trading finance profits, the Group Financing Exemption represents a charging provision and a part of the definition of the limits of the CFC rules, not a selective advantage. The Commission has provided no quantitative analysis to show that it is an advantage and, in the absence of cogent evidence that the measure in question results in an advantage, the contested decision cannot stand.

3.

Third plea in law, alleging that the Commission misidentified the reference system for the assessment of the effects of the CFC rules and wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system. The Commission has not correctly understood the objective of the CFC rules and has failed to consider the UK’s margin for discretion.

4.

Fourth plea in law, alleging that the Commission has shown manifest errors in its State aid analysis, and has applied the wrong tests when considering the question of comparability. The Commission failed to recognize the different level of risk to the UK tax base as between lending to a group entity which is taxable in the UK and lending to a group entity which is not taxable in the UK, and irrationally concluded that intra-group lending is comparable to third-party lending.

5.

Fifth plea in law, alleging that, even assuming that the CFC measures in question prima facie constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply under the counterfactual of Chapter 5 of the said Part 9A would be the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that the said Chapter 9 is never justified in cases where the significant people functions test would cause a CFC charge to apply under the said Chapter 5. In fact, the significant people functions test is excessively difficult to apply in practice, such that the Commission should have found the said Chapter 9 to be justified in the context of that test as well and, hence, it should have concluded that there is no State aid.

6.

Sixth plea in law, alleging that, were the contested decision to be upheld, then enforcement of it through recovery of the alleged State aid from the applicants would infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicants’ case, the CFCs in question are situated in other Member States.

7.

Seventh plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

8.

Eighth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under the said Chapter 5 could be applied using the significant people functions test without difficulty or disproportionate burden.

9.

Ninth plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

—

hold that there has been no unlawful State Aid, annul Article 1 of the Commission Decision of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, insofar as it finds that there has been unlawful State aid, and set aside the requirement for the UK to recover alleged unlawful State aid received by the applicant in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover from the applicant the alleged State Aid; and

—

in any event, order the Commission to bear the costs incurred by the applicant for these proceedings.

1.

First plea in law, alleging that the Commission misunderstands the context, aim and operation of the UK Controlled Foreign Company (CFC) rules, with respect to the treatment of non-trading finance profits. The Commission’s conclusions in the contested decision are based on cumulative manifest errors. In particular, the Commission has made manifest errors in its understanding of the overall UK tax system, in its understanding of the aims of the CFC system, in the specific scope of the Group Financing Exemption and in the definition of qualifying loan relationships.

2.

Second plea in law, alleging that the Commission wrongly construes the Group Financing Exemption as a tax exemption and accordingly an advantage. In relation to non-trading finance profits, the Group Financing Exemption represents a charging provision and a part of the definition of the limits of the CFC rules, not a selective advantage. The Commission has provided no quantitative analysis to show that it is an advantage and, in the absence of cogent evidence that the measure in question results in an advantage, the contested decision cannot stand.

3.

Third plea in law, alleging that the Commission misidentified the reference system for the assessment of the effects of the CFC rules and wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system. The Commission has not correctly understood the objective of the CFC rules and has failed to consider the UK’s margin for discretion.

4.

Fourth plea in law, alleging that the Commission has shown manifest errors in its State aid analysis, and has applied the wrong tests when considering the question of comparability. The Commission failed to recognize the different level of risk to the UK tax base as between lending to a group entity which is taxable in the UK and lending to a group entity which is not taxable in the UK, and irrationally concluded that intra-group lending is comparable to third-party lending.

5.

Fifth plea in law, alleging that, even assuming that the CFC measures in question prima facie constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply under the counterfactual of the Chapter 5 would be the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that the said Chapter 9 is never justified in cases where the significant people functions test would cause a CFC charge to apply under the said Chapter 5. In fact, the significant people functions test is excessively difficult to apply in practice, such that the Commission should have found the said Chapter 9 to be justified in the context of that test as well and, hence, it should have concluded that there is no State aid.

6.

Sixth plea in law, alleging that, were the contested decision to be upheld, then enforcement of it through recovery of the alleged State aid from the applicant will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicant’s case, the CFCs in question are situated in other Member States.

7.

Seventh plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

8.

Eighth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under the said Chapter 5 could be applied using the significant people functions test without difficulty or disproportionate burden.

9.

Ninth plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

—

annul the Commission decision of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

—

alternatively, annul Article 2 of the contested decision insofar as it applies to the applicants;

—

in the further alternative, annul Article 2 of the contested decision in respect of any aid granted under the Group Financing Exemption in the period prior to 24 November 2017 in so far as it applies to the applicants;

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging the illegality of Article 1 of the contested decision on the following grounds:

2.

Second plea in law, alleging the illegality of Article 2 of the contested decision on the grounds of breach of legitimate expectation and infringement of the principles of legal certainty and proportionality.

3.

Third plea in law, alleging that, alternatively, recovery should not be ordered in respect of any aid granted through the Group Financing Exemption prior to 24 November 2017, when the Commission published its opening decision.

—

annul Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption (OJ 2019 L 216, p. 1) in its entirety insofar as it concerns the applicant;

—

alternatively, order that in determining the amount of aid to be recovered, losses, reliefs or exemptions which were available to the applicant at the time when it claimed the Group Financing Exemption, or which would have been available to the applicant at that time had it not claimed the Group Financing Exemption, should in either case be taken into account even if access to those losses, reliefs or exemptions is now time barred under UK law and irrespective of whether or not they are automatic;

—

in any event, order the defendant to pay the applicant’s costs.

1.

First plea in law, alleging that the defendant has failed to establish that the Group Financing Exemption constitutes an advantage. The applicant argues that the defendant has failed to show that there is an advantage in each case where the Group Financing Exemption has been claimed.

2.

Second plea in law, alleging that there was no intervention by the State or through State resources. The Commission has failed to prove that claiming the Group Financing Exemption has certainly led to a reduction in the UK corporate tax liability.

3.

Third plea in law, alleging that the Group Financing Exemption does not favour certain undertakings or the production of certain goods. The applicant argues that the defendant has erred by (i) defining the reference system too narrowly as the rules in Part 9A of the Taxation (International and Other Provisions) Act 2010 instead of the wider UK corporate tax system; (ii) failing to understand that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is not a derogation from Chapter 5 thereof; and (iii) failing to recognise that, even if the said Chapter 9 is a derogation from that Chapter 5, it is justified by the nature or general scheme of the said Part 9A.

4.

Fourth plea in law, alleging that the Group Financing Exemption does not affect trade between Member States. The Commission, it is argued, has erred by concluding that the Group Financing Exemption is liable to influence choices made by multinational groups as to the location of their group finance functions and their head office within the EU.

5.

Fifth plea in law, alleging that the Group Financing Exemption does not distort or threaten to distort competition. The Commission, it is asserted, has failed to prove that claiming the Group Financing Exemption has certainly led to a reduction in the UK corporate tax liability.

6.

Sixth plea in law, alleging that recovery of the alleged aid would be contrary to general principles of EU law. The applicant argues that the significant people functions test in Section 371EB of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010 lacks legal certainty, the UK had a margin of appreciation to address that uncertainty and that the defendant has breached its duty to carry out a complete analysis of all relevant factors. By ordering the recovery of aid, the Commission has acted contrary to Article 16(1) of Council Regulation (EU) 2015/1589, (1) which prohibits the recovery of aid where recovery would be contrary to a general principle of EU law.

7.

Seventh plea in law, alleging that the selective advantage would be eliminated, and no recovery would be required, if the UK were retrospectively to extend the Group Financing Exemption to upstream lending and third-party lending. The applicant argues that the defendant has failed to acknowledge that taking such action would eliminate any selective advantage (assuming for the moment that there is one) and in such case there would be no unlawful State aid to be recovered under EU law.

8.

Eighth plea in law, alleging that, in determining the amount of the aid to be recovered, losses, reliefs or exemptions which were available to the applicant (whether by way of claim, election, or automatically) at the time when it claimed the Group Financing Exemption, or which would have been available at that time had it not claimed the Group Financing Exemption, should be taken into account even if access to those losses, reliefs or exemptions is now time barred under UK law. The applicant argues that that is the correct interpretation of recital 203 of the contested decision but, insofar as that is not the case, the decision is incorrect because failing to take such losses, reliefs or exemptions into account would lead to over-calculation of the amount of the aid, which would introduce a distortion into the internal market.

9.

Ninth plea in law, alleging that the Commission has failed to substantiate its reasons in relation to the qualifying resources exemption and the matched interest exemption and to carry out a complete analysis of all relevant factors. The applicant argues that the defendant has failed to distinguish between three separate exemptions under Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010, which function independently, and to understand that the qualifying resources exemption and the matched interest exemption are not proxies for the significant people functions test and that the existence of the matched interest exemption in Chapter 9 demonstrates that the defendant has erred by defining the reference system too narrowly as the rules in the said Part 9A instead of the wider UK corporate tax system.

—

annul Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption (OJ 2019 L 216, p. 1);

—

order the defendant to pay the applicant’s costs.

1.

First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The applicant argues that the defendant should have treated the reference framework as the UK’s corporation tax regime, not simply the Controlled Foreign Companies (CFC) regime itself.

2.

Second plea in law, alleging that the defendant erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

3.

Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

4.

Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

5.

Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions laid down in the said Chapter 9 as a class would breach the applicant’s freedom of establishment contrary to Article 49 TFEU.

6.

Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

7.

Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

8.

Eighth plea in law, alleging that the Commission erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

9.

Ninth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (of which the applicant was one) and that it had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

—

annul Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing (OJ 2019 L 216, p. 1), in so far as it holds that the alleged aid measure constitutes aid in the sense of Article 107(1) TFEU and orders its recovery with interest, including from the applicant;

—

in the alternative, annul Articles 2, 3 and 4 of the contested decision to the extent that it orders the recovery of incompatible aid with interest, including from the applicant;

—

order the Commission to bear its own costs and the applicant’s costs in connection with these proceedings.

1.

First plea in law, alleging that the Commission has violated Article 107(1) TFEU by holding that the alleged aid measure provides a selective advantage:

2.

Second plea in law, alleging that the Commission has violated Article 107(1) TFEU by failing to demonstrate that the alleged aid measure was liable to affect trade between Member States and threatened to distort competition.

3.

Third plea in law, alleging, alternatively, that the Commission has violated Article 49 TFEU by qualifying the alleged aid measure as incompatible State aid that does not breach the freedom of establishment as guaranteed by Article 49 TFEU.

4.

Fourth plea in law, alleging that the Commission has violated the fundamental principle of equal treatment/non-discrimination by:

5.

Fifth plea in law, alleging, in the alternative, that, even if the alleged aid measure falls within the ambit of Article 107(1) TFEU, the Commission has violated Article 16(1) of Council Regulation (EU) 2015/1589, (2) by ordering the recovery of amounts of alleged incompatible aid from the beneficiaries of the alleged aid measure, because such recovery infringes general principles of EU law, namely the principle of legitimate expectations and legal certainty.

—

hold that there has been no unlawful State Aid, annul Article 1 of the Commission decision of 2 April 2019 on the state aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, to the extent that it finds that there has been unlawful State aid, and set aside the requirement for the UK to recover alleged unlawful State aid received by the applicants in this context (Articles 2 and 3 of the contested decision);

—

in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover from the applicants the alleged State aid; and

—

in any event, order the Commission to bear the costs incurred by the applicants for these proceedings.

1.

First plea in law, alleging that the contested decision is vitiated by manifest errors in the appreciation of the relevant facts and laws. In particular, it is alleged that the Commission misunderstands the way the UK CFC rules in question work with respect to the treatment of non-trading finance profits. In addition, it is alleged that the contested decision wrongly construed the Group Financing Exemption as a tax exemption. This is particularly self-evident given that some of the loans which are the subject matter of this application were funded out of qualifying resources.

2.

Second plea in law, alleging that the Commission was wrong to find that the CFC rules constituted an aid measure within the meaning of Article 107(1) TFEU and, as such, that the rules conferred a selective advantage to certain operators. More precisely, the Commission, it is said, wrongly determined the reference system for the assessment of the effects of the CFC rules, and wrongly identified two different situations as being comparable to the situation where the Group Financing Exemption applies. As a result of either or both of these errors, the Commission was wrong to identify that these rules conferred a selective advantage to certain market operators. Moreover, the applicants argue that the Commission wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system, while ignoring other features of the UK corporation tax system intended to work in conjunction with the CFC rules. As a result, the analysis of the Commission on comparability and selectivity is said to be vitiated by manifest errors of appreciation of the relevant facts and errors in law.

3.

Third plea in law, alleging that, even assuming that the CFC measures in question constituted aid within the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply is the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that the said Chapter 9 is never justified in cases where the significant people functions test causes a CFC charge to apply. In fact, although, on the applicants’ own facts, the position is clear, the significant people functions test is generally excessively difficult to apply in practice, such that the Commission should have found the said Chapter 9 to be justified in the context of that test as well and, hence, it should have concluded that there is no State aid.

4.

Fourth plea in law, alleging that, were the contested decision to be upheld, enforcement of it through recovery of the alleged State aid from the applicants would infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that, in the applicants’ case, the CFCs in question are situated in other Member States.

5.

Fifth plea in law, alleging that the recovery order resulting from the contested decision is unfounded and contrary to fundamental Union principles.

6.

Sixth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision. The Commission, it is argued, failed to consider the ‘qualifying resources’ exemption to any material extent, and failed to analyse the reasons or justifications for it. Other examples include the conclusion that the CFC charge under the said Chapter 5 could be applied using the significant people functions test without difficulty or disproportionate burden.

7.

Seventh plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allow transparency and predictability in its administrative procedures and render its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.

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annul Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption (OJ 2019 L 216, p. 1);

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in the alternative, annul Article 2 of the contested decision to the extent that it infringes the applicant’s freedom of establishment under Article 49 TFEU; and

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in any event, order the Commission to pay the applicant’s costs.

1.

First plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in concluding that the Group Financing Exemption scheme (‘the contested measure’) gave rise to an economic advantage within the meaning and scope of Article 107(1) TFEU.

2.

Second plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in the identification of the reference system for the purposes of the ‘selectivity’ analysis.

3.

Third plea in law, alleging that the Commission made errors of law and manifest errors of assessment in wrongly or incompletely identifying, and in failing to understand correctly, the relevant objectives of its chosen reference system.

4.

Fourth plea in law, alleging that the Commission made errors of law and/or manifest errors of assessment in identifying the contested measure as entailing a derogation from its chosen reference system.

5.

Fifth plea in law, alleging that the Commission made errors of law and/or manifest errors of assessment in wrongly classifying the contested measure as prima facie selective, by incorrectly holding that it entailed different treatment of undertakings in a legally and factually comparable situation.

6.

Sixth plea in law, alleging that the Commission made an error of law in taking account of Council Directive (EU) 2016/1164 (1) in its assessment of the selectivity of the contested measure, whereas that instrument did not come into force until after the end of the period in which the Commission ruled the contested measure to entail State aid.

7.

Seventh plea in law, alleging that the contested decision represents a misuse of power by the Commission contrary to the UK’s fiscal sovereignty.

8.

Eighth plea in law, alleging that the Commission made manifest errors of assessment in holding the alleged derogation to be not justified in relation to the taxation of non-trading finance profit(s) from qualifying loan relationships falling prima facie within section 371EB (‘UK activities’) of the Taxation (International and Other Provisions) Act 2010. In relation to the ‘qualifying resources’ and ‘matched interest profits’exemptions, the Commission’s decision is also vitiated by its failure to state any reasons in relation to their justification or lack thereof.

9.

Ninth plea in law, alleging that the Commission acted in breach of Article 108(2) TFEU and Article 6 of Council Regulation (EU) 2015/1589 (2) and in breach of the duty of good administration under Article 41 of the Charter of Fundamental Rights. Specifically, it failed to indicate in its opening decision that it had concerns regarding the justification of the “75% exemption” under section 371ID of the Taxation (International and Other Provisions) Act 2010 to avoid the practical difficulty of carrying out a significant people functions analysis in relation to intra-group lending activity, such as to give interested parties adequate opportunity to comment on this; it failed, in the course of its investigation, to invite any comments in this regard from interested parties; and in the contested decision it chose to ignore such comments as had in fact been provided by interested parties in this regard. In consequence, the contested decision is void.

10.

Tenth plea in law, alleging that the Commission erred in law in ruling that taxing a UK company on profits of foreign subsidiaries “to the extent attributable to domestic assets and activities” does not pose a restriction to the freedom of establishment and that the contested measure was not needed to ensure compliance with the Treaty freedoms.

In support of its application (in the alternative) for annulment of Article 2 of the contested decision, the applicant relies on the following plea in law:

11.

Eleventh plea in law, alleging that even if (which is denied) the contested measure entailed a State aid scheme, the Commission made an error of law in holding that recovery of the aid would not infringe the fundamental principles of EU law and in ordering recovery irrespective of whether the establishment of the Controlled Foreign Company and its making of loans to non-resident group companies in fact entailed an exercise of the freedom of establishment. Specifically, in the present case, recovery would infringe the applicant’s freedom of establishment under Article 49 TFEU. To the extent of such infringement, the recovery order in Article 2 of the contested decision falls to be annulled.

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annul Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption (OJ 2019 L 216, p. 1);

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in the alternative, annul Article 2 of the contested decision to the extent that it infringes the applicant’s freedom of establishment under Article 49 TFEU; and

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in any event, order the Commission to pay the applicant’s costs.

1.

First plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in concluding that the Group Financing Exemption scheme (‘the contested measure’) gave rise to an economic advantage within the meaning and scope of Article 107(1) TFEU.

2.

Second plea in law, alleging that the Commission made an error of law and/or a manifest error of assessment in the identification of the reference system for the purposes of the ‘selectivity’ analysis.

3.

Third plea in law, alleging that the Commission made errors of law and manifest errors of assessment in wrongly or incompletely identifying, and in failing to understand correctly, the relevant objectives of its chosen reference system.

4.

Fourth plea in law, alleging that the Commission made errors of law and/or manifest errors of assessment in identifying the contested measure as entailing a derogation from its chosen reference system.

5.

Fifth plea in law, alleging that the Commission made errors of law and/or manifest errors of assessment in wrongly classifying the contested measure as prima facie selective, by incorrectly holding that it entailed different treatment of undertakings in a legally and factually comparable situation.

6.

Sixth plea in law, alleging that the Commission made an error of law in taking account of Council Directive (EU) 2016/1164 (1) in its assessment of the selectivity of the contested measure, whereas that instrument did not come into force until after the end of the period in which the Commission ruled the contested measure to entail State aid.

7.

Seventh plea in law, alleging that the contested decision represents a misuse of power by the Commission contrary to the UK’s fiscal sovereignty.

8.

Eighth plea in law, alleging that the Commission made manifest errors of assessment in holding the alleged derogation to be not justified in relation to the taxation of non-trading finance profit(s) from qualifying loan relationships falling prima facie within section 371EB (‘UK activities’) of the Taxation (International and Other Provisions) Act 2010. In relation to the ‘qualifying resources’ and ‘matched interest profits’ exemptions, the Commission’s decision is also vitiated by its failure to state any reasons in relation to their justification or lack thereof.

9.

Ninth plea in law, alleging that the Commission acted in breach of Article 108(2) TFEU and Article 6 of Regulation (EU) 2015/1589 (2) and in breach of the duty of good administration under Article 41 of the Charter of Fundamental Rights. Specifically, it failed to indicate in its opening decision that it had concerns regarding the justification of the ‘75% exemption’ under section 371ID of the Taxation (International and Other Provisions) Act 2010 to avoid the practical difficulty of carrying out a significant people functions analysis in relation to intra-group lending activity, such as to give interested parties adequate opportunity to comment on this; it failed, in the course of its investigation, to invite any comments in this regard from interested parties; and in the contested decision it chose to ignore such comments as had in fact been provided by interested parties in this regard. In consequence, the contested decision is void.

10.

Tenth plea in law, alleging that the Commission erred in law in ruling that taxing a UK company on profits of foreign subsidiaries ‘to the extent attributable to domestic assets and activities’ does not pose a restriction to the freedom of establishment and that the contested measure was not needed to ensure compliance with the Treaty freedoms.

In support of its application (in the alternative) for annulment of Article 2 of the contested decision, the applicant relies on the following plea in law:

11.

Eleventh plea in law, alleging that even if (which is denied) the contested measure entailed a State aid scheme, the Commission made an error of law in holding that recovery of the aid would not infringe the fundamental principles of EU law and in ordering recovery irrespective of whether the establishment of the CFC and its making of loans to non-resident group companies in fact entailed an exercise of the freedom of establishment. Specifically, in the present case, recovery would infringe the applicant’s freedom of establishment under Article 49 TFEU. To the extent of such infringement, the recovery order in Article 2 of the contested decision falls to be annulled.

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declare the application admissible and well founded;

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annul Commission Decision C(2019)5498 final of 26 July 2019;

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order the Commission to pay the costs.

1.

First plea in law, alleging infringement of the parties’ procedural rights under Article 108(2) TFEU, in that the circumstances in which the contested decision was adopted and the content thereof demonstrate that the Commission was objectively faced with doubts that should have resulted in the formal investigation procedure being opened.

2.

Second plea in law, based on infringement of the obligation to state reasons.

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annul the European Commission’s decision C(2019) 6099 final of 12 August 2019 (Case AT.40459) rejecting the applicant’s complaint under Article 7(2) of Regulation No 773/2004 (1) and

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order the European Commission to pay the costs of the proceedings.

1.

First plea in law, alleging the infringement of essential procedural requirements

The applicant submits that the Commission infringed Article 7(1) and (2) of Regulation No 1/2003 (2) and Article 7(1) of Regulation No 773/2004, read in conjunction with Article 41(1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union by infringing the principle of acting within a reasonable time, given that the decision was adopted almost two years after the notification of 13 September 2017 informing the applicant of the Commission’s intention to reject the complaint, which had an impact on the outcome of the proceedings. The applicant also alleges that the Commission infringed the applicant’s right to the examination of its case, and also failed to give detailed reasons for the rejection of its complaint, which is reflected in the general content of the notification of 13 September 2017 informing it of the Commission’s intention to reject the complaint and in the laconic statement of reasons for the contested decision.

2.

Second plea in law, alleging infringement of the Treaties.

The applicant submits that the Commission infringed the right to effective judicial protection and thus Article 2 TEU, read in conjunction with the second subparagraph of Article 19(1) TEU and with Article 47 of the Charter of Fundamental Rights of the European Union, in finding that the President of the Urząd Ochrony Konkurencji i Konsumentów (Office for the protection of competition and consumers, Poland) ‘seems to be a body which is particularly appropriate to examine the issues raised … in the complaint’ (point 21 of the contested decision), thus at least failing to have regard to the reasonable doubts as to the upholding of the rule of law in Poland and, in connection with this, the independence of the courts and of the President of the Office for the protection of competition and consumers. The Commission failed to have regard, inter alia, to the issue of the reorganisation of the judicial system in Poland and to the fact that cases in the field of competition and consumer protection are examined by the new Chamber of Extraordinary Control and Public Affairs in the Sąd Najwyższy (Supreme Court, Poland), whose method of appointment is similar to that of the disciplinary chamber.

3.

Third plea in law, also alleging infringement of the Treaties

The applicant submits that the Commission infringed Article 102 TFEU, read in conjunction with the second sentence of Article 17(1) TFEU, with Article 7(2) of Regulation No 773/2004 and with Article 7(1) and (2) of Council Regulation (EC) No 1/2003, in committing a manifest error in the assessment of the interest of the European Union and the delimitation of the relevant market. The Commission held that the market on which the alleged infringement had been committed was ‘essentially limited to the national rail market, even if the alleged infringement might also concern undertakings registered abroad’. It also submits that the Commission failed to ensure the full effectiveness (‘effet utile’) of Article 102 TFEU.

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Annul the decisions of the defendant’s Cancellation Division of 1 August 2018, No 16 223 C (invalidity) and of the defendant’s First Board of Appeal of 5 September 2019 in Case R 1934/2018-1;

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Maintain EU trade mark No 16 637 266 on the register in its entirety, as registered and certified by the defendant;

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In the alternative, in the event that the General Court considers that other findings of fact are necessary, order the defendant to adopt a new decision on the need to preserve the availability of the term ‘PedalBox +’, without taking into account product designations of the companies SPEED-BUSTER GmbH & Co. KG., Mosaikweg 18, 53489 Sinzig, Germany, or CPA Performance GmbH, Jurastrasse 1, 73119 Zell unter Aichelberg, Germany.

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Infringement of Article 59(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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annul the contested decision;

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order EUIPO to pay the costs, including those incurred by the applicant in the proceedings before the Board of Appeal.

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Infringement of Article 7(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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Infringement of Article 95(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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annul the contested decision;

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order EUIPO to pay the costs.

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Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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Legal uncertainty arising from different EUIPO decisions relating to very similar marks and the need for reasons to be given in decisions.

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annul Commission Decision C(2019) 8501 final of 20 November 2019 (AT.40522 — Metal Packaging [ex Pandora]) on the obligation to provide information, and

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order the Commission to pay the applicants’ costs.

1.

First plea in law: Infringement of the rights of defence

First plea in law, alleging that the contested decision infringed fundamental rights of defence since the questions asked are based predominantly on documents and information that the applicants had previously forwarded to the Bundeskartellamt (the German competition authority) as leniency applicants in proceedings pending before it. The Commission obtained those documents and information in the context of an impermissible exchange of information with the Bundeskartellamt or an unlawful inspection conducted on the basis thereof.