Appeal brought on 22 February 2023 by the Autoridad Portuaria de Bilbao against the judgment of the General Court (Fifth Chamber) delivered on 14 December 2022 in Case T-126/20, Autoridad Portuaria de Bilbao v Commission

(Case C-110/23 P)

(2023/C 173/29)

Language of the case: Spanish

Parties

Appellant: Autoridad Portuaria de Bilbao (represented by: D. Sarmiento Ramírez-Escudero and X. Codina García-Andrade, abogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

Grounds of appeal and main arguments

First ground of appeal:

The judgment of the General Court is vitiated by an error of law, based on an infringement of Article 107(1) TFEU, in that the General Court accepted that, when the Commission found that the Exención Fiscal de Bizkaia (Biscay Tax Exemption) is an advantage, the Commission did not assess it as being a complex arrangement.

In support of the first ground of appeal, the appellant claims that the reasoning relied on by the General Court to conclude that there is no measure of a complex nature is based on purely formal grounds which depart from the substantive assessment required by the case-law of the Court of Justice.

Second ground of appeal:

The judgment is vitiated by an error of law in that the General Court infringed Article 107 TFEU, Regulation 2015/1589 (1) and the relevant case-law, in conjunction with Article 4(3) TEU, Article 296 TFEU and Article 41 of the Charter, by concluding that the Commission does not have to carry out a full analysis of the available data where it is clear that there is only one beneficiary of the aid scheme.

In support of the second ground of appeal, the appellant claims that it is a well-known fact under the Spanish legal system that only one entity benefits from the Biscay Tax Exemption (the Autoridad Portuaria de Bilbao). In that case, even though the measure can be classified as an ‘aid scheme’ for the purposes of Regulation 2015/1589, the Commission must carry out a full analysis of the available data. That is the case according to the original purpose of the case-law, which allows the Commission not to carry out such an analysis, interpreted in the light of Article 4(3) TEU, Article 296 TFEU and Article 41 of the Charter.

Third ground of appeal:

The judgment is vitiated by an error of law in that the General Court infringed Article 108 TFEU and Regulation 2015/1589, in the light of Article 4(3) TEU, by finding that, in cooperation procedures, the Commission’s obligations are less extensive than in investigation procedures.

In support of the third ground of appeal, the appellant claims that the General Court states in its judgment, without any justification whatsoever, that in a cooperation procedure under Article 21 of Regulation 2015/1589, the Member State has fewer guarantees than in an investigation procedure. With respect to that ground of appeal, the appellant argues that both the wording of Articles 21 to 23 of Regulation 2015/1589 and the close connection between Article 108 TFEU, from which the cooperation procedure in Regulation 2015/1589 derives, and the principle of sincere cooperation in Article 4(3) TEU mean that the Commission must examine the information provided by the Member State.

(1)  Council Regulation (EU) 2015/1589, of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union — OJ 2015 L 248, p. 9.