INHALT

Commission Decision of 17 July 2013 on the aid scheme SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain Tax scheme applicable to certain finance lease agreements also known as the Spanish Tax Lease System (notified under document C(2013) 4426) (Only the Spanish text is authentic) (Text with EEA relevance) (2014/200/EU)

COMMISSION DECISION
of 17 July 2013
on the aid scheme SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain Tax scheme applicable to certain finance lease agreements also known as the Spanish Tax Lease System
(notified under document C(2013) 4426)
(Only the Spanish text is authentic)
(Text with EEA relevance)
(2014/200/EU)
1.
PROCEDURE
2.
DESCRIPTION OF THE SPANISH TAX LEASE SYSTEM
2.1. THE STL — LEGAL AND FINANCIAL STRUCTURE
2.2. THE STL — TAX ASPECTS
2.2.1.
Measure 1 — Accelerated depreciation
(11)
of leased assets
2.2.2.
Measure 2: Discretionary application of early depreciation of leased assets
2.2.3.
Measure 3: Economic interest groupings (EIGs)
2.2.4.
Measure 4: Tonnage tax system (Articles 124 to 128 TRLIS)
2.2.5.
Measure 5: Article 50(3) RIS
3.
REASONS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
4.
COMMENTS FROM SPAIN AND FROM INTERESTED PARTIES
4.1. PROCEDURE
4.2. ASSESSMENT OF THE STL AS A SCHEME/ASSESSMENT OF INDIVIDUAL MEASURES
4.2.1.
Complainants
4.2.2.
Spain and the participants in tax lease transactions
4.3. OBSERVATIONS RELATED TO THE ASSESSMENT OF THE INDIVIDUAL MEASURES
4.3.1.
Accelerated depreciation (Article 115(6) TRLIS
(34)
) — Measure 1
4.3.2.
Discretionary application of early depreciation (Article 115(11) TRLIS, Article 48(4) TRLIS and Article 49 RIS) — Measure 2
4.3.3.
The tax transparency of economic interest groupings (Article 48 TRLIS) — Measure 3
4.3.4.
The TT system (Articles 124 to 128 TRLIS) — Measure 4
4.3.5.
Article 50(3) RIS — Measure 5
4.4. OBSERVATIONS RELATED TO THE TRANSFER OF STATE RESOURCES AND THE IMPUTABILITY OF THE MEASURES TO THE STATE
4.5. OBSERVATIONS RELATED TO THE DISTORTION OF COMPETITION AND THE EFFECTS ON TRADE
4.6. OBSERVATIONS RELATED TO THE IDENTIFICATION OF THE RECIPIENTS OF AID
4.7. OBSERVATIONS RELATED TO THE CLASSIFICATION AS EXISTING OR UNLAWFUL AID
4.8. OBSERVATIONS RELATED TO THE COMPATIBILITY OF AID
4.9. OBSERVATIONS RELATED TO RECOVERY
4.9.1.
Equal treatment
4.9.2.
Legitimate expectations/legal certainty
4.9.2.1.
The 2001 Commission Decision in the Brittany Ferries case (BAI)
4.9.2.2.
The publication of the draft measures in the Official Gazette of the Spanish Parliament
4.9.2.3.
The 2001 request for information about the Spanish tax leasing scheme
4.9.2.4.
The 2004 Decision concerning the Dutch notification
4.9.2.5.
The 2006 Decision in the French GIE Fiscaux case
4.9.2.6.
The 2009 letter sent by Commissioner Kroes
4.9.2.7.
Time elapsed between the complaint and the opening of the procedure
4.9.2.8.
A diligent economic operator could not have foreseen the possible existence of State aid in the combination of several measures
4.9.2.9.
The statements on depreciation methods in the Commission Notice on business taxation
4.9.3.
Considerations relevant for State aid recovery
4.9.4.
Contractual clauses
5.
ASSESSMENT
5.1. PROCEDURE
5.2. ASSESSMENT OF THE STL AS A SYSTEM/ASSESSMENT OF INDIVIDUAL MEASURES
5.3. EXISTENCE OF AID WITHIN THE MEANING OF ARTICLE 107(1) TFEU
5.3.1.
Undertakings within the meaning of Article 107 TFEU
5.3.2.
Existence of a selective advantage
5.3.2.1.
Accelerated depreciation (Article 115(6) TRLIS) — Measure 1
5.3.2.2.
Discretionary application of early depreciation (Article 115(11) Article 48(4)TRLIS and Article 49 RIS) — Measure 2
5.3.2.3.
The tax transparency of economic interest groupings (Article 48 TRLIS) — Measure 3
5.3.2.4.
The tonnage tax system (Articles 124 to 128 TRLIS) — Measure 4
5.3.2.5.
Article 50(3) RIS — Measure 5
5.3.2.6.
Selective advantage resulting from the STL as a whole. Recipients of the advantage
5.3.3.
Transfer of state resources and imputability to the State
5.3.4.
Distortion of competition and effect on trade
5.4. EXISTING OR UNLAWFUL AID
5.5. COMPATIBILITY WITH THE INTERNAL MARKET
5.5.1.
Application of the Maritime Guidelines
5.6. RECOVERY
5.6.1.
Equal treatment
5.6.2.
Legitimate expectations
5.6.2.1.
The 2001 Commission Decision in Brittany Ferries (BAI)
5.6.2.2.
The publication of the draft measures in the Official Gazette of the Spanish Parliament
5.6.2.3.
The 2001 request for information about a tax leasing scheme
5.6.2.4.
The 2004 Decision concerning the Dutch notification
(119)
5.6.2.5.
The 2006 Decision in the French GIE Fiscaux case
5.6.2.6.
The 2009 letter sent by Commissioner Kroes
5.6.2.7.
A diligent economic operator could not have foreseen the possible existence of State aid in the joint application of several measures
5.6.2.8.
The statements concerning depreciation methods in the Commission Notice on direct business taxation
(126)
5.6.2.9.
Eligibility of the revenues from bareboat chartering for the tonnage tax scheme
5.6.3.
Legal certainty
5.6.3.1.
Elements that have created a situation of uncertainty concerning the regularity of the measure
5.6.3.2.
Time elapsed between the complaint and the opening of the procedure
5.6.4.
Determining the amounts to be recovered
5.6.5.
Contractual clauses
6.
CONCLUSION
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
ANNEX