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Caxamar – Comércio e Indústria de Bacalhau SA, by T. Fraga, L. Palácios and C. Pereira, advogados,

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the Portuguese Government, by P. Barros da Costa, L. Borrego and A. Rodrigues, acting as Agents,

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the European Commission, by V. Bottka and G. Braga da Cruz, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 1 and Article 2(11) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1), the Guidelines on regional State aid for 2014-2020 (OJ 2013 C 209, p. 1; ‘the 2014-2020 Guidelines’) and Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organisation of the markets in fishery and aquaculture products, amending Council Regulations (EC) No 1184/2006 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 104/2000 (OJ 2013 L 354, p. 1), read in conjunction with Annex I to the FEU Treaty.

2

The request has been made in proceedings between Caxamar – Comércio e Indústria de Bacalhau SA (‘Caxamar’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) (‘the tax authority’) concerning the correction of the corporation tax payable by that company because certain investment expenditure is ineligible for the grant of a tax advantage.

3

Article 2 of Regulation No 1379/2013, entitled ‘Scope’, provides:

‘The [common organisation of the markets in fishery and aquaculture products (CMO)] shall apply to the fishery and aquaculture products listed in Annex I to this Regulation, which are marketed in the [European] Union.’

4

Article 5 of that regulation, entitled ‘Definitions’, states:

‘… The following definitions shall also apply:

…

…’

5

Annex I to Regulation No 1379/2013, entitled ‘Fishery and aquaculture products covered by the CMO’, is worded as follows:

6

Under the heading ‘Scope’, Article 1 of Regulation No 651/2014 which repealed Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ 2008 L 214, p. 3), provided in paragraph 3 thereof:

‘This Regulation shall not apply to:

…

…’

7

With effect from 10 July 2017, Article 1(1)(b) of Commission Regulation (EU) 2017/1084 of 14 June 2017 amending Regulation No 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No 702/2014 as regards the calculation of eligible costs (OJ 2017 L 156, p. 1), replaced Article 1(3)(a) to (c) of Regulation No 651/2014 by the following provisions:

‘This Regulation shall not apply to:

…

8

Article 2 of Regulation No 651/2014, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation the following definitions shall apply:

…

(9)   “primary agricultural production” means production of products of the soil and of stock farming, listed in Annex I to the [FEU] Treaty, without performing any further operation changing the nature of such products;

(10)   “processing of agricultural products” means any operation on an agricultural product resulting in a product which is also an agricultural product, except on-farm activities necessary for preparing an animal or plant product for the first sale;

(11)   “agricultural product” means the products listed in Annex I to the [FEU] Treaty, except fishery and aquaculture products listed in Annex I to Regulation [No 1379/2013];

…’

9

In Section 1.1 of the 2014-2020 Guidelines, entitled ‘Scope of regional aid’, paragraph 10 of those guidelines states as follows:

‘The [European] Commission will apply the principles set out in these guidelines to regional aid in all sectors of economic activity …, apart from the fisheries and aquaculture …, agricultural … and the transport sector …, which are subject to special rules laid down by specific legal instruments, which might derogate partially or totally from these guidelines. The Commission will apply these guidelines for processing and marketing of agricultural products into non-agricultural products. …’

10

Footnote 10, to which paragraph 10 of the 2014-2020 Guidelines refers, states that fisheries and aquaculture are sectors covered by Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products (OJ 2000 L 17, p. 22).

11

Footnote 11, to which paragraph 10 of those guidelines refers, reads as follows:

‘State aid for the primary production, processing and marketing of agricultural products resulting in agricultural products listed in Annex I to the [FEU] Treaty and forestry is subject to rules laid down in the Guidelines for State aid in the agricultural sector.’

12

Article 2 of the Código Fiscal do Investimento (Tax Code on Investment), in the version applicable to the facts in the main proceedings, entitled ‘Subject matter’, provides, in paragraphs 2 and 3 thereof:

‘2.   The subject matter of the investment projects referred to in the previous paragraph must, inter alia, fall within the following economic activities and must also fall within the sectoral scope established by [the 2014-2020 Guidelines]’:

…

…

3.   The economic activity codes (EACs) corresponding to the activities referred to in the previous paragraph shall be defined by ministerial order of the members of the Government responsible for finance and economic affairs’.

13

Article 22 of that code, entitled ‘Scope and definitions’, provides in paragraph 1 thereof:

‘The [Regime Fiscal de Apoio ao Investimento (Tax Scheme to Support Investment; “the RFAI”)] applies to persons liable for [corporation tax] who carry on an activity within the sectors expressly listed in Article 2(2), having regard to the activity codes defined in the ministerial order referred to in Article 2(3), other than activities that are excluded from the sectoral scope of [the Guidelines] and Regulation [No 651/2014].’

14

Article 1 of Portaria no282/2014, que define os códigos de atividade económica (CAE) correspondentes a várias atividades (Ministerial Order No 282/2014, defining the economic activity codes (EACs) for various activities), of 30 December 2014 (Diário da República, 1st series, No 251 of 30 December 2014) (‘Ministerial Order No 282/2014’), entitled ‘Community framework’, provides:

‘Under the [2014-2020 Guidelines] and Regulation [No 651/2014], investment projects relating to economic activities in the …. fishery and aquaculture and primary agricultural production sectors, those involving the processing and marketing of the agricultural products listed in Annex I to the [FEU] Treaty … may not obtain tax advantages.’

15

Article 2 of that ministerial order, entitled ‘Sectoral scope’, provides:

‘Without prejudice to the restrictions established in the previous article, the economic activities listed in Article 2(2) of the [Tax Code on Investment] correspond to the following codes in the Portuguese Classification of Economic Activities, Revision 3 (CAE Rev3), approved by Decree-Law No 381/2007 of 14 November 2007:

…

…’

16

The code ‘CAE 10204 Rev 3’ refers to the ‘salting, drying and other processing of fishery and aquaculture products’.

17

Caxamar is a limited company incorporated under Portuguese law, engaged primarily in the salting and drying of fishery and aquaculture products and, secondarily, in the freezing of such products.

18

During 2016 and 2018, Caxamar made investments with the aim of increasing the capacity of an existing establishment in order to improve and extend processes for the salting, desalting and freezing of cod.

19

Taking the view that the costs associated with those investments were eligible for the tax advantages provided for by the RFAI referred to in Article 22 of the Tax Code on Investment, Caxamar deducted, on that basis, expenditure amounting to EUR 72 775.36 and EUR 41 607.67, respectively, from its taxable income for the years 2016 and 2018.

20

Following an inspection to verify the application of the tax advantages granted in the context of the RFAI, the tax authorities corrected the corporation tax payable by Caxamar in respect of those two tax years and, accordingly, imposed on it an additional amount of EUR 126 302.62 in terms of that tax and compensatory interest. The tax authorities took the view that the activity covered by those investments was ineligible for the RFAI, since it did not fall within the RFAI’s scope, pursuant to the Tax Code on Investment, read in conjunction with Articles 1 and 2 of Ministerial Order No 282/2014, Regulation No 651/2014 and Annex I to the FEU Treaty.

21

In particular, the tax authorities considered that the activity of salting, desalting and freezing of cod, which is one of the processing activities covered by code CAE 10204 Rev 3, constitutes an activity of the ‘processing industry’ within the meaning of Article 2(b) of Ministerial Order No 282/2014, which – because salted cod, frozen cod and desalted cod come within the chapters of the nomenclature referred to in Annex I to the FEU Treaty – falls within the concept of ‘processing of agricultural products’ whose end product is also an agricultural product listed in that annex. Consequently, that activity could not benefit from the RFAI, pursuant to Article 1 of Ministerial Order No 282/2014 and Article 22(1) of the Tax Code on Investment, which excludes, in its final part, activities that do not fall within the scope of Regulation No 651/2014 and the 2014-2020 Guidelines.

22

Caxamar brought an action before the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal), the referring court, seeking annulment of the correction made.

23

In support of that action, Caxamar submits that the activity of salting, desalting and freezing of cod falls within the scope of Regulation No 651/2014 and the 2014-2020 Guidelines, with the result that it is eligible for the aid scheme at issue. The tax authorities, in that regard, misinterpreted the Tax Code on Investment, the RFAI and Ministerial Order No 282/2014, Regulations No 651/2014 and No 1379/2013 and Annex I to the FEU Treaty, in that that activity is an activity of the processing industry, falling within Article 2(b) of that ministerial order, and not an activity of processing of agricultural products excluded from the scope of Regulation No 651/2014 and of the 2014-2020 Guidelines. National law should be interpreted in accordance with EU law, as is apparent, in particular, from Article 2(11) of Regulation No 651/2014, which defines the concept of ‘agricultural product’ as referring to the products listed in Annex I to the FEU Treaty, except fishery and aquaculture products listed in Annex I to Regulation No 1379/2013. The latter annex specifically mentions fresh, dried and salted fish, fish in brine, frozen fish, fish waste and products of fish. Consequently, the products of the cod-processing activity at issue in the main proceedings are not ‘agricultural products’ for the purposes of Regulation No 651/2014.

24

The tax authorities contend, by contrast, that it is apparent from Article 1(3)(a) to (c) of Regulation No 651/2014, read in conjunction with Article 2 thereof, and from the 2014-2020 Guidelines that the activity of salting, desalting and freezing of cod is excluded from the scope of that regulation, in that it constitutes a processing activity for fishery and aquaculture products. That regulation and the 2014-2020 Guidelines apply neither to the fishery and aquaculture products listed in Annex I to Regulation No 1379/2013 nor to the ‘agricultural products’ listed in Annex I to the FEU Treaty. Admittedly, that activity, in the strict and literal sense, is not regarded as involving the processing of ‘agricultural products’ as such. However, it is apparent from Article 38(1) TFEU and from Chapters 3 and 16 of Annex I thereto, which cover fish, crustaceans and molluscs and preparations thereof, that the concept ‘agricultural products’ also includes fishery products. In accordance with those provisions, Article 1 of Ministerial Order No 282/2014 classifies as ineligible for the grant of the aid at issue investment projects for economic activity in the fishery and aquaculture sectors and that of the processing of agricultural products listed in Annex I to the FEU Treaty.

25

The referring court considers, therefore, that the relevant question for resolving the dispute in the main proceedings is whether the activity of processing of cod into salted, frozen and desalted cod, respectively, which constitutes a processing industry activity falling within Article 2(b) of Ministerial Order No 282/2014, is an activity of processing of agricultural products, within the meaning of the applicable rules of EU law, as set out in Regulation No 651/2014, the 2014-2020 Guidelines and the EU legislation to which those acts refer.

26

In those circumstances the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘According to the correct interpretation of the [2014-2020 Guidelines], in conjunction with the provisions of [Regulation No 651/2014], in particular Article 1 and Article 2(11) thereof, [Regulation No 1379/2013], and Annex I to the [FEU Treaty], is it possible to conclude that, under Articles 2(2) and 22(1) of the [Tax Code on Investment] and Articles 1 and 2 of the [Ministerial Order No 282/2014], the processing of fishery and aquaculture products relating to “salted cod”, “frozen cod” and “desalted cod” in [EAC 10204 Rev3] does not constitute the processing of agricultural products for the purposes of granting the relevant tax advantages?’

27

By its question, the referring court asks, in essence, whether Article 1 and Article 2(10) and (11) of Regulation No 651/2014 and the 2014-2020 Guidelines, read in conjunction with the provisions of Annex I to the FEU Treaty and Regulation No 1379/2013, must be interpreted as meaning that an activity of processing of fishery and aquaculture products, such as the production of salted, frozen and desalted cod, constitutes an activity of processing of agricultural products, which is excluded from the scope of Regulation No 651/2014 by reason of Article 1(3)(c) of that regulation.

28

As a preliminary point, the Court notes that the facts of the dispute in the main proceedings concern the years 2016 and 2018, with the result that the provisions of Article 1(3) of Regulation No 651/2014 are applicable to it both in the version of those provisions prior to the entry into force of Regulation 2017/1084 and in the version resulting from that regulation. However, since the amendments introduced by the latter regulation do not affect the substance of the parts of those provisions which are relevant to answering the question raised by the referring court, the interpretation of Article 1(3) of Regulation No 651/2014, in its original version, is applicable mutatis mutandis to Article 1(3) of that regulation in the version resulting from Regulation 2017/1084.

29

In that regard, it should be noted that, in accordance with Article 1(3)(c) of Regulation No 651/2014, that regulation is not to apply to ‘aid granted in the sector of processing and marketing of agricultural products’, in the cases specified in that provision. That exclusion is reproduced in paragraph 10 of the 2014-2020 Guidelines and, in particular, in footnote 11 to which that paragraph refers.

30

As regards the concept of ‘processing of agricultural products’ within the meaning of Regulation No 651/2014, that concept is, as set out in Article 2(10) of that regulation, to include – subject to an exception which is not relevant to the case in the main proceedings – ‘any operation on an agricultural product resulting in a product which is also an agricultural product’; the concept of‘agricultural product’ is for its part defined in Article 2(11) of that regulation as referring to the products listed in Annex I to the FEU Treaty, ‘except fishery and aquaculture products listed in Annex I to [Regulation No 1379/2013]’.

31

The latter annex expressly mentions, in particular, frozen fish, frozen fish fillets and dried and salted fish.

32

It follows that, as all the interested parties who submitted written observations have noted, the products resulting from an activity of processing of fishery and aquaculture products, such as salted cod, frozen cod and desalted cod, do not constitute ‘agricultural products’ within the meaning of Article 2(11) of Regulation No 651/2014.

33

Such an activity cannot, therefore, be classified as an activity of ‘processing of agricultural products’ within the meaning of Article 2(10) of that regulation, since it does not result in an agricultural product.

34

In that context, as the Commission rightly argued, the question raised by the referring court as to whether the products at issue in the main proceedings fall within Annex I to the FEU Treaty is irrelevant, since Regulation No 651/2014 contains its own definition of the concept of ‘agricultural product’, which expressly excludes fishery and aquaculture products covered by the CMO established by Regulation No 1379/2013.

35

It follows that an activity of processing of fishery and aquaculture products, such as the production of salted cod, frozen cod and desalted cod cannot, since it does not constitute an activity of ‘processing of agricultural products’, within the meaning of Article 2(10) of Regulation No 651/2014, read in conjunction with Article 2(11) of that regulation and Annex I to Regulation No 1379/2013, be excluded, on that ground, from the scope of Regulation No 651/2014 on the basis of Article 1(3)(c) thereof.

36

Nonetheless, in order to provide a complete answer to the referring court, it must be pointed out, as the Portuguese Government and the European Commission have stated, that, under Article 1(3)(a) of Regulation No 651/2014, that regulation is also not to apply, subject to a series of exceptions which are not relevant to the case in the main proceedings, to aid granted to the ‘fishery and aquaculture sector, as covered by Regulation [No 1379/2013]’. That exclusion is, moreover, recalled in paragraph 10 of the 2014-2020 Guidelines and in footnote 10 to which that paragraph refers.

37

It is apparent from Article 2 and Article 5(a) and (d) of Regulation No 1379/2013, read in conjunction with Annex I thereto, that that regulation is to apply to all processing activities relating to aquatic organisms resulting from fishing and aquaculture activity and, in particular, as has already been pointed out in essence in paragraphs 30 and 31 above, to processing activities resulting in the production of salted cod, frozen cod and desalted cod.

38

It is, therefore, clear that if fishery and aquaculture products and processing activities concerning them, such as the activities at issue in the main proceedings, are not covered by the rule which excludes from the scope of Regulation No 651/2014, laid down in Article 1(3)(c) thereof, relating to the sector of processing and marketing of agricultural products, that is because the abovementioned products and activities fall within the rule which excludes from the scope of that regulation, laid down in Article 1(3)(a) thereof, relating to the fishery and aquaculture sector.

39

It follows that since, as indeed posited by the referring court in its question, an activity of processing of fishery and aquaculture products, such as the production of salted cod, frozen cod and desalted cod, falls within the ‘fishery and aquaculture sector’ – within the meaning of Article 1(3)(a) of Regulation No 651/2014, read in conjunction with Article 2 and Article 5(a) and (d) of, and Annex I to, Regulation No 1379/2013 – that activity is in any event excluded on that ground from the scope of Regulation No 651/2014.

40

Consequently, the answer to the question referred for a preliminary ruling is that Article 1 and Article 2(10) and (11) of Regulation No 651/2014 as well as the 2014-2020 Guidelines, read in conjunction with Article 2 and Article 5(a) and (d) of, and Annex I to, Regulation No 1379/2013, must be interpreted as meaning that an activity of processing of fishery and aquaculture products, such as the production of salted cod, frozen cod and desalted cod, does not constitute an activity of processing of agricultural products, which is excluded from the scope of Regulation No 651/2014 by reason of Article 1(3)(c) of that regulation, but rather an activity falling within the fishery and aquaculture sector, which is excluded from the scope of that regulation by reason of Article 1(3)(a) thereof.

41

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 1 and Article 2(10) and (11) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] as well as the Guidelines on regional State aid for 2014-2020, read in conjunction with Article 2 and Article 5(a) and (d) of, and Annex I to, Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organisation of the markets in fishery and aquaculture products, amending Council Regulations (EC) No 1184/2006 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 104/2000,

must be interpreted as meaning that an activity of processing of fishery and aquaculture products, such as the production of salted cod, frozen cod and desalted cod, does not constitute an activity of processing of agricultural products, which is excluded from the scope of Regulation No 651/2014 by reason of Article 1(3)(c) of that regulation, but rather an activity falling within the fishery and aquaculture sector, which is excluded from the scope of that regulation by reason of Article 1(3)(a) thereof.