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The Commission infringes Article 1(d) of Regulation 2015/1589 and Article 107(1) TFEU since it incorrectly classifies the contested measure as an aid measure. The contested aid cannot be allocated on the sole basis of Article 185(2)(b) of the Wetboek van inkomstenbelastingen van 1992 (Belgian Income Tax Code of 1992), but requires additional implementing measures in order for that provision to be applied.

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The Commission infringes Article 296 TFEU in that its reasoning is contradictory. The contradiction lies in the fact that the Commission does not explain why, when assessing the criterion of selectivity, it takes the view that the previous decisions do not stem directly from Article 185(2)(b) of the Wetboek van inkomstenbelastingen van 1992, whereas it assumes, in assessing the existence of an aid measure, that the provision referred to does not require any additional implementing measures.

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The Commission failed to investigate whether the contested aid measure actually led to the conferral of an advantage, for the purposes of Article 107(1) TFEU, on the recipient undertakings. This was in spite of the fact that that condition is a prerequisite for State aid, and that the Commission is thus required to examine it before deciding on whether State aid exists, failing which it will be in breach of its obligation to state reasons under Article 296 TFEU.

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The Belgian State, in attributing the contested ruling to the applicant, conducted itself purely as an economic operator in the market economy. The Belgian State thereby invested a sum of money in the applicant, in the form of the grant of tax relief, from which, on the basis of the conditions imposed on the applicant, it could expect to be able to make significant economic returns. Given that the private-investor test is not an exception to be applied by the Commission solely at the request of the Member State in question, the Commission infringed Article 107(1) TFEU and breached its obligation to state reasons under Article 296 TFEU in failing to investigate whether or not the private-investor test was satisfied.

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Article 185(2)(b) of the Wetboek van de inkomstenbelastingen van 1992 and the excess profit exemption system arising out of it are open to all undertakings in a comparable factual and legal situation which conduct the economic transactions that are the object of the contested measure. The contested measure is therefore not restricted to specific undertakings that can be defined according to particular features, and is thus not selective for the purposes of Article 107(1) TFEU.

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The Commission committed a manifest error of assessment in finding that the exemption of excess profit did not form part of the reference system. The exemption of excess profit on the basis of synergies and economies of scale in application of the arm’s length principle is a key component of the provisions that determine total taxable income, and thus cannot be regarded as constituting a derogation from the reference system leading to selectivity.

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The Commission is unable to prove that the arm’s length principle was incorrectly applied by the Belgische Rulingcommissie (Belgian Ruling Committee) in the context of applying Article 185(2)(b) of the Wetboek van de inkomstenbelastingen van 1992. The Commission’s reasoning is not coherent and takes into account important factors which are, however, contradictory or lack the necessary coherence.