Case C-452/10 P

BNP Paribas

and

Banca Nazionale del Lavoro SpA (BNL)

v

European Commission

‛Appeal — State aid — Scheme for the realignment of the value of assets for tax purposes — Banking sector — Taxation of capital gains — Substitute tax — Selectivity’

Summary of the Judgment

1. State aid — Meaning — Legal concept — Interpretation on the basis of objective factors

   (Art. 107(1) TFEU)

2. State aid — Meaning — Selective nature of the measure — Derogation from the general tax system — Justification derived from the nature and general scheme of the system — Burden of proof

   (Art. 107(1) TFEU)

3. Appeals — Grounds — Error of law — Characterisation of a measure as State aid — Comprehensive review not carried out by the General Court on account of the failure to find the appraisals under review to be technical or complex

   (Arts 107(1) TFEU and 256 TFEU)

4. Appeal — Appeal held to be well founded — Judgment to be given on the substance by the appeal court — Condition — Whether the state of the proceedings permits final judgment to be given — Meaning

   (Statute of the Court of Justice, Art. 61(1))

5. State aid — Meaning — Selective nature of the measure — Derogation from the general tax system — Justification derived from the nature and general scheme of the system — Criteria for assessment — Scheme for the realignment of the value of assets for tax purposes in the banking sector

   (Art. 107(1) TFEU)

1.  See the text of the judgment.

   (see para. 100)

2.  The definition of state aid does not include national measures introducing a differentiation between undertakings and which are, therefore, prima facie selective when that differentiation arises from the nature and overall structure of the system of charges of which they form part. It is for the Member State which has made such a distinction between undertakings in terms of charges to show that it is actually justified by the nature and the general scheme of the system in question.

   (see paras 101, 120, 121)

3.  Although the General Court is required to carry out a comprehensive review of the characterisation of the tax scheme at issue as State aid by the Commission, and therefore to examine whether or not the differentiation between undertakings which a tax scheme results in is due to the nature or general scheme of the tax system of which it forms part, its power of review is limited with regard to whether a measure comes within the scope of Article 107(1) TFEU, in a case where the appraisals by the Commission are technical or complex in nature. But it is still necessary for the General Court, if it is not to err in law by failing to carry out its comprehensive review, to reach a finding that the appraisals are technical or complex.

   (see paras 102-104)

4.  See the text of the judgment.

   (see paras 106, 107)

5.  See the text of the judgment.

   (see paras 136, 137)