Judgment of the Court (Second Chamber) of 21 September 2023 — Fachverband Spielhallen eV, LM v European Commission, Federal Republic of Germany

(Case C-831/21 P) (1)

(Appeal - State aid - Article 107(1) TFEU - Concept of ‘aid’ - Condition relating to selective advantage - Tax treatment of operators of public casinos in Germany - Levy on the profits - Partial deductibility of the amounts paid in respect of that levy from the tax base for income or corporation tax and trade tax - Decision of the European Commission - Rejection of a complaint at the end of the preliminary examination stage on the ground that that deductibility does not constitute State aid - Separate finding of no economic advantage and no selectivity - Action before the General Court of the European Union limited to the finding of no selectivity - Action deemed ineffective - Identification by the Commission of the reference system or ‘normal’ tax system - Interpretation for that purpose of the applicable national tax law - Classification of the levy on the profits as a ‘special tax’ deductible in respect of ‘costs associated with commercial transactions’ - Principle ne ultra petita)

(C/2023/624)

Language of the case: German

Parties

Appellants: Fachverband Spielhallen eV, LM (represented by: A. Bartosch and R. Schmidt, Rechtsanwälte)

Other parties to the proceedings: European Commission (represented initially by: K. Blanck and B. Stromsky, and subsequently by B. Stromsky, acting as Agents), Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Operative part of the judgment

The Court:

1.	Sets aside the order of the General Court of the European Union of 22 October 2021, Fachverband Spielhallen and LM v Commission (T-510/20, EU:T:2021:745);

2.	Refers the case back to the General Court of the European Union;

3.	Reserves the costs.

---

(1)   OJ C 198, 16.5.2022.