General Court, 25-11-2014, nr. T-512/11

It is therefore necessary to examine whether the length and circumstances of the preliminary investigation procedure constitute indicia that the Commission encountered serious difficulties which ought to have given rise to doubts on its part, by verifying whether the procedure conducted by the Commission considerably exceeded what is normally required for a preliminary investigation carried out pursuant to Article 108(3) TFEU.

With regard to the length of the preliminary investigation procedure, it must be borne in mind that, according to case-law, where disputed State measures were not notified by the Member State concerned, the Commission is not required to carry out an initial investigation of those measures within a specified period. However, where interested third parties submit complaints to the Commission relating to State measures which have not been notified, the Commission is bound, in the context of the preliminary stage laid down in Article 108(3) TFEU, to conduct a diligent and impartial examination of the complaints in the interests of sound administration of the fundamental rules of the Treaty relating to State aid. It follows, in particular, that where the Commission has initiated a preliminary investigation into State measures in relation to which there has been a complaint, it cannot prolong that investigation indefinitely. The purpose of that investigation is simply to allow the Commission to form an initial opinion on the classification of the measures submitted for its assessment and their compatibility with the internal market (see judgment in SIC v Commission, paragraph 58 above, EU:T:2000:123, paragraphs 103, 105 and 107 and the case-law cited; judgments of 12 December 2006 in Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, T-95/03, ECR, EU:T:2006:385, paragraph 121; and of 27 September 2011 in 3F v Commission, T-30/03 RENV, ECR, EU:T:2011:534, paragraph 57).

Whether or not the length of the preliminary investigation procedure is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages to be followed by the Commission and the complexity of the case (judgments of 10 May 2006 in Air One v Commission, T-395/04, ECR, EU:T:2006:123, paragraph 61, and 3F v Commission, paragraph 68 above, EU:T:2011:534, paragraph 58).

In the present case, it is important to note that the contested decision of 13 July 2011 was adopted at the end of a preliminary investigation stage that had been initiated on 21 July 2009, the date of receipt of the applicant's complaint, that is to say almost 24 months earlier and, in any event, nearly 21 months after the Commission received the letter from the Irish authorities, which contains, as was confirmed by the Commission in its written pleadings and at the hearing, the only observations provided by those authorities on which the Commission exclusively based its analysis of the disputed measure. To explain that length, the Commission maintains that the complaint concerned several aspects linked to the application of the ATT and that it attempted to address all of its aspects together, whilst, however, expressing doubts as to the compatibility of one of the disputed measures, namely that concerning the application during the period from 30 March 2009 to 1 March 2011 of a differentiated rate for national flights, which gave rise to the initiation of the formal investigation procedure exclusively concerning that latter measure (see paragraph 9 above).

It must be held that such periods considerably exceed the period normally required for a preliminary investigation, whose sole purpose, as noted in paragraph 57 above, is to allow the Commission to form a prima facie opinion on the classification of the measures submitted for its assessment and on their compatibility with the internal market (see, to that effect, judgment in SIC v Commission, paragraph 58 above, EU:T:2000:123, paragraph 107).

In that regard, the Commission's argument that the length of the procedure was influenced by the fact that the applicant's complaint concerned a total of five related but separate measures, one of which was the subject of the initiation of the procedure laid down in Article 108(2) TFEU, and that the contested decision in fact constitutes a collection of decisions relating to all of those measures cannot in itself justify the excessively long length of the investigation which has just been found. Indeed, the Commission has not stated what was the specific usefulness, in the present case, of carrying out an overall analysis of the five measures called in question and, in particular, of not separating the investigation of the measure which led to the initiation of the formal investigation procedure from the other measures, if those measures, including the disputed one, raised no doubt, as the Commission claims. All the same, even if such an argument were well founded, there is nothing to suggest that the disputed measure is so complex as to require a preliminary investigation of around two years. In so far as the Commission essentially based its conclusion that the majority of the measures called in question did not classify as State aid on the examination of section 55 of the Finance Act, it does not appear that the Commission was required to enquire extensively into the facts or to take other measures requiring a significant amount of time.

Furthermore, it is not apparent from the file that there had been exchanges which contributed to extending the length of the preliminary investigation. As the Commission stated in its rejoinder and confirmed at the hearing, its letter of 28 July 2009, mentioned in paragraph 2 of the contested decision, was the only request for information sent to the Irish authorities pursuant to Article 10(2) of Regulation No 659/1999. Moreover, those authorities replied, on 15 October 2009, by way of observations based exclusively on the interpretation of the ATT, which were not followed by any subsequent procedural step on the part of the Commission which, had it been the case, may justify the excessively long length of the investigation. It was only on 27 October 2011, that is three and a half months after the adoption of the contested decision and one month after the bringing of the present action, that the services of the Commission contacted the Irish authorities once again in order to have confirmation of the correct understanding of the detailed rules for the application of the ATT concerning flights towards the United States with a scheduled stopover in Shannon, summarised in the form of a table set out in paragraph 9 of the contested decision.

It follows that there are no circumstances capable of explaining the excessive length of the preliminary investigation in the present case. The period elapsed therefore considerably exceeded the length normally required for a preliminary investigation carried out pursuant to Article 108(3) TFEU.

However, as the Commission observes, it is only if it is reinforced by other factors that the expiry of a time period, even one that considerably exceeds the length normally required for a preliminary investigation carried out pursuant to Article 108(3) TFEU, may lead to the conclusion that the Commission encountered serious difficulties necessitating initiation of the procedure under Article 108(2) TFEU (see judgment in Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, paragraph 68 above, EU:T:2006:385, paragraph 135 and the case-law cited).

It is therefore necessary to examine whether matters concerning the content of the contested decision may also constitute evidence showing that the Commission should have had doubts following a preliminary investigation of the disputed measure.

As a preliminary point, it should be observed that, as the applicant notes, without being contradicted by the Commission, the issue at stake in the present case was only whether the disputed measure was selective, selectivity being a constituent factor in the concept of aid. The Commission based its analysis regarding the disputed measure on that notion alone in order to reach the conclusion that the disputed measure did not constitute State aid within the meaning of Article 107(1) TFEU.

In that regard, it should be noted that that provision prohibits, in principle, aid ‘favouring certain undertakings or the production of certain goods’, that is to say selective aid (judgment of 18 July 2013 in P, C-6/12, ECR, EU:C:2013:525, paragraph 17). That provision does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (judgment of 13 February 2003 in Spain v Commission, C-409/00, ECR, EU:C:2003:92, paragraph 46).

Thus, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of Article 107 TFEU (judgment of 15 November 2011 in Commission v Government of Gibraltar and United Kingdom, C-106/09 P and C-107/09 P, ECR, EU:C:2011:732, paragraphs 72 and 73 and the case-law cited).

According to the case-law, in order to classify a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ tax regime applicable in the Member State concerned. It is in relation to this common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in light of the objective assigned to the tax system of the Member State concerned, are in comparable factual and legal situations (see judgment of 8 September 2011 in Paint Graphos and Others, C-78/08 to C-80/08, ECR, EU:C:2011:550, paragraph 49 and the case-law cited; judgment in P, paragraph 78 above, EU:C:2013:525, paragraph 19).

It is apparent from the case-law that a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil the condition of selectivity (see judgment of 8 November 2001 in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C-143/99, ECR, EU:C:2001:598, paragraph 42 and the case-law cited). Thus, a measure which constitutes an exception to the application of the general tax system may be justified if it is shown that that measure results directly from the basic or guiding principles of the tax system of the Member State concerned (see judgment in Paint Graphos and Others, paragraph 80 above, EU:C:2011:550, paragraph 65 and the case-law cited).

It is therefore in the light of those considerations that the Court must assess whether the Commission carried out a complete and sufficient investigation of the disputed measure and whether it was in possession of all the information enabling it to conclude, following an initial investigation, that that measure was not selective and therefore did not constitute aid.

In that regard, it should be borne in mind that, in paragraph 32 of the contested decision, the Commission considered that the objective and structure of the ATT system was to tax passengers departing from an airport located in Ireland in order to raise revenue for the State budget. According to the Commission, if the ATT had been applied to transit and transfer passengers, the airline might have had to pay that tax twice for a journey with a stopover. Therefore, the Commission took the view that the ATT exemption for transit and transfer passengers, which resulted in passengers being taxed the same way independently of the route travelled, fell within the nature and logic of the relevant tax system. Furthermore in this regard, the Commission endorsed the view set out in the letter from the Irish authorities that it is the first leg of the journey which is exempt from payment of the ATT (see paragraph 20 of the contested decision), by including, by way of example, in paragraph 9 of the contested decision, a table intended, in particular, to summarize the detailed rules for the taxation of a flight from New York to Dublin and vice versa, with a stopover in Shannon. In addition, it found that the objective of avoiding double taxation justified that transit and transfer passengers are not covered by the ATT. Since the non-imposition of the ATT on transit and transfer passengers was, according to the Commission, in the nature and logic of the system, it was therefore not selective (see paragraph 32 of the contested decision).

It must be observed that, in the development of its reasoning, which covers, as a whole, three paragraphs of the contested decision (see paragraphs 30 to 32 of the contested decision), the Commission expressly referred, first of all, to what the Irish authorities stated in their letter on the reasons for the neutrality, from the perspective of the passenger, of the ATT exemption for transit and transfer passengers, mentioning in particular the fact that countries which imposed similar taxes exempted the same categories of passengers for similar reasons (see paragraph 30 of the contested decision). It is apparent from paragraph 20 of the contested decision that the country to which the Irish authorities referred as a point of comparison is the United Kingdom.

The Commission then expressly referred to the staff working paper (see paragraph 31 of the contested decision), in which the exemption of transit and transfer passengers is recommended for tax neutrality reasons and in order to avoid the risk of double taxation in the event that the airport of departure was situated in another Member State applying a similar air travel tax.

By contrast, the Commission did not examine, in that context, the specific detailed rules for the application of the exemption at issue and did not address the question whether section 55 of the Finance Act had to be interpreted as providing for the exemption from payment of the ATT for the first leg of the journey or as providing for an exemption for the second leg of the journey.

In that regard, after having recalled, in paragraph 9 of the contested decision, the respective definitions, as set out in section 55 of the Finance Act, of ‘transfer passenger’ and ‘transit passenger’ — the first being a passenger ‘who arrives on a flight to an airport and who departs from the airport on a further flight’ and the second being a passenger ‘who is on board an aircraft which lands at an airport in the course of its journey and who continues his or her journey on that aircraft’ — the Commission merely stated, in the abovementioned table, that, in the case of a Dublin-Shannon-New York flight, the ATT payable would be EUR 10. By relying exclusively on the letter from the Irish authorities and reproducing, in particular, the same example used by those authorities, the Commission therefore endorsed the view that the part of the journey exempt from payment of the ATT was the first.

Whilst it is true that, as the Commission claims, it had, in principle, no reason to doubt the information contained in the letter from the Irish authorities, the fact remains that, even following those authorities' interpretation that any first leg of a journey including a stopover is exempt from payment of the ATT (see paragraph 20 of the contested decision), the examples reproduced in the table set out in paragraph 9 of the contested decision are not capable of supporting such an interpretation. Whilst this might be the case as regards the example relating to passengers going from Dublin to New York and making a stopover in Shannon, who were subject to payment of the ATT of EUR 10, by contrast, it is not clear, and the Commission does not explain, why passengers taking the opposite route, that is from New York to Dublin with the same stopover, are not subject to payment of the ATT for the departure from the stopover airport of Shannon. In the light of the definitions of transit and transfer passengers stated in section 55 of the Finance Act, the wording of which does not exclude a different interpretation of the operation of the ATT exemption from that maintained by the Commission, and in the light also of the succinct information provided by the Irish authorities in that regard, the Commission ought to have asked those authorities for further details by requiring the provision of specific examples of the application of the exemption in order to dispel any possible doubt.

It should also be noted in that context that the fact that the services of the Commission deemed it necessary, after having adopted the contested decision and following the commencement of the present action, to ask an Irish official to confirm to them that the interpretation which they had derived from the letter from the Irish authorities, concerning the ATT exemption granted to transit and transfer passengers for Dublin-New York flights with a stopover in Shannon (see paragraph 73 above), was correct may in turn be regarded as evidence of the persistence of doubts on the part of the services of the Commission in that regard.

In addition, by referring, in paragraph 30 of the contested decision, to the fact that, according to the Irish authorities, reasons of neutrality also prompt the exemptions for the same categories of passengers granted by other systems of air travel taxation existing in other Member States, whereas explicit reference is made to the United Kingdom in paragraph 20 of the contested decision, the Commission does not substantiate its analysis as to the detailed rules for the operation of the ATT and, more precisely, as to the identification of the leg of the journey subject to the exemption at issue.

As the applicant claims in its written pleadings without being contradicted by the Commission, it is apparent from Notice No 550 of the United Kingdom tax authorities (HM Revenue and Customs Notice 550), dated August 2010 and placed in the file by the applicant, that the APD in the United Kingdom was designed to be applied differently from the ATT. With regard, more particularly, to the exemption for transit and transfer passengers, the APD cannot constitute a relevant reference model in the present case because it provides that it is always the first leg of the journey, and more precisely the first flight, that is subject to payment of the tax, which does not correspond to the view supported by the Irish authorities in their letter and confirmed by the Commission in the contested decision.

The same applies to the staff working paper mentioned in paragraph 31 of the contested decision, according to which it would be desirable if, in the case of both transit and transfer passengers, it were the second leg of the journey which must be exempt from payment of the air travel tax (see paragraph 2.1 of that paper).

Nor, in that respect, does the invocation of the intention to avoid double taxation, which essentially underlies the ATT exemption at issue, support the example provided by the Irish authorities in their letter and validated by the Commission, according to which, in essence, it is the first flight which is not taxed. Regardless of the relevance of the argument relating to the intention to avoid double taxation, since the ATT applies to any departure from an airport in Ireland, the exemption must relate, in the case of transit and transfer passengers coming from an airport located outside of Ireland and making a stopover in that country, to the payment of the ATT for the second flight, that is the flight departing from an Irish airport. That corresponds to one of the two situations mentioned in the table appearing in paragraph 9 of the contested decision, namely that of a journey from New York to Dublin with a stopover in Shannon. As has been noted in paragraph 88 above, that is not consistent, however, with the other situation, namely that of a journey from Dublin to New York with the same stopover, according to which the exemption relates to the first flight and not the second.

Those considerations cannot be called in question by the Commission's argument that the question whether, during the period from 30 March 2009 to 1 March 2011 when there was a difference in rates, the exemption related to the payment of EUR 2 applicable to the first departure or the payment of EUR 10 applicable to the second departure is neither relevant nor topical in the present case. Given that the Court's findings concern the existence of factors relating to the content of the contested decision capable of constituting indicia that the Commission should have had doubts at the time of the investigation of the disputed measure, the question of what type of exemption was enjoyed by transit and transfer passengers during that period was not irrelevant, particularly because it was able to provide clarification on the original purpose of the disputed measure. The adoption by the Commission of a decision to initiate the formal investigation procedure concerning the existence of differentiated rates in respect of the abovementioned period does not prevent the Court from assessing whether the fact that the Commission was not fully informed of the detailed rules for the operation of the disputed measure was able to constitute an indicium of the existence of doubts which the Commission should have had and which would have justified the initiation of the formal investigation stage also for that latter aspect.

Next, regarding the objective of avoiding double taxation, which was invoked in paragraph 32 of the contested decision, it must be noted that, as has been stated in paragraph 83 above, the Commission explained that such an objective justifies that transit and transfer passengers are not covered by the ATT, after having stated in paragraph 31 of the contested decision that, in its staff working paper, the exemption of such passengers was recommended not only for tax neutrality reasons, but also in order to avoid the risk of double taxation in the event that the airport of departure, situated in another Member State, imposes a similar air travel tax. Contrary to the assertions made by the Commission during the hearing, in the scheme of the reasoning which led it to conclude that the disputed measure was not selective, the taking account of the supposed purpose of avoiding double taxation was not a secondary or, in any event, redundant element of its analysis.

In that regard, it must be stated that, in the letter from the Irish authorities, no explicit reference was made to that specific objective. It is therefore possible to infer that the justification relating to the need to avoid double taxation, which was invoked in paragraph 32 of the contested decision, is essentially prompted by the Commission's staff working paper, which sought to study a possible tax based on airline tickets as a new source of financing development aid designed to be applied at international level.

If, as the explicit reference to the staff working paper contained in paragraph 31 of the contested decision seems to clearly suggest, the notion of double taxation at issue is the one envisaged in that paper, the aim of which is to avoid the same passenger being taxed a first time upon departure from an airport located outside of Ireland and a second time upon departure from the stopover airport located in Ireland, it should be noted, in addition to the considerations already set out in paragraph 93 above, that it is not apparent from either section 55 of the Finance Act or from the letter from the Irish authorities that the ATT exemption system is designed to avoid such cross-border double taxation. If, on the other hand, as the Commission contended at the hearing, the reference to the objective of avoiding double taxation pursued by the disputed measure should be understood in a sense which differs markedly from that chosen in the staff working paper, namely as seeking to avoid a passenger being taxed twice in Ireland for two departures linked to the same journey, it should be noted that such an interpretation is not supported, as has just been found, by the detailed explanation of the reasoning set out in paragraphs 31 and 32 of the contested decision and that, in any event, it cannot be based on the wording of section 55 of the Finance Act, according to which the airline operator and not the passenger is liable for payment of the ATT.

Thus, since the reference by the Commission to such a purpose of the disputed measure does not concern an analysis of its actual operation, the juxtaposition of that reference, made by the Commission in the contested decision, with the so-called neutrality reference relied upon in the letter from the Irish authorities in order to justify the disputed measure constitutes further evidence of the incomplete and insufficient nature of the investigation carried out by the Commission.

Lastly, it should be noted that it is apparent from the letter from the Irish authorities that, after having stated the reasons why they considered the exemption at issue to be justified, those authorities nevertheless took the view that the argument put forward by the applicant in its complaint, namely that its passengers using two flights to arrive at their final destination could not rely on such an exemption, was valid. The Irish authorities consequently stated that they were willing to rectify this by amending, if necessary, the law on that specific point.

While taking into consideration the arguments raised in the applicant's complaint, the Irish authorities therefore acknowledged that the detailed rules for the application of the ATT exemption to transfer passengers might cause problems, particularly as regards one of the two conditions which had to be fulfilled in order to obtain that exemption, namely the condition that the two flights concerned be booked under a single booking (the other condition being that there be a maximum of six hours between the scheduled time of arrival of the first flight and the scheduled time of departure of the second flight; see paragraph 2 above), since such a condition prevents the applicant and any other airline not using that type of booking from obtaining such an exemption. Moreover, the Irish authorities did not exclude, at the very least from a theoretical point of view, that it would be possible to rectify that situation by removing the single booking condition.

It must be held that, notwithstanding the fact that the Commission stated in its written pleadings and at the hearing that it had examined the disputed measure on the basis of the information provided by the Irish authorities, which it considered to be complete and satisfactory, its services completely underestimated that aspect. Those authorities nevertheless raised some doubts as to the operation of the exemption which should have been taken into account in the assessment of the question whether the disputed measure was capable of favouring certain undertakings over others which were in comparable factual and legal situations, and whether that was justified by the nature or general scheme of the system of which it was part. A sufficiently exhaustive investigation of the disputed measure would have required, at the very least, the Commission to take a position on that statement by the Irish authorities.

In short, contrary to what the Commission maintains, there are inconsistencies between the content of the letter from the Irish authorities which prompted the investigation of the disputed measure and the contested decision.

Such inconsistencies lead to the conclusion that, in the circumstances of the present case, the Commission did not have, at the date of the contested decision, and notwithstanding the time which had elapsed between the receipt of the letter from the Irish authorities and the adoption of the contested decision, information enabling it to carry out, in accordance with the principles of case-law set out in paragraphs 80 and 81 above, a sufficiently complete analysis of the selective nature of the disputed measure, also taking into account the doubts raised by the Irish authorities in their letter with regard to the single booking condition that was necessary to obtain the ATT exemption, and enabling it to conclude that the question linked at the very least to the detailed rules for the application of that exemption did not raise doubts.

Moreover, at the hearing, the Commission, supported by Ireland, repeatedly claimed that, in its investigation, it took into account all aspects of the disputed measure raised by the applicant in its complaint, while explaining that some of the applicant's complaints were mentioned only in its written pleadings.

In so far as such an argument might be understood as seeking to assert the completeness of the investigation of the disputed measure carried out by the Commission, it must be recalled that the fact that a complainant did not raise certain arguments does not mean that the Commission is not obliged, where necessary, to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant. According to the case-law, the Commission is required, in the interests of sound administration of the fundamental rules of the TFEU relating to State aid, to conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant (judgment of 2 April 2008 in Commission v Sytraval and Brink's France, C-367/95 P, ECR, EU:C:1998:154, paragraph 62).

In the light of the foregoing considerations, it must be concluded that there exists a body of objective and consistent indicia — deriving from the excessive length of the preliminary examination procedure and from the partially incomplete and insufficient content of the investigation carried out by the Commission — which permits the inference that the Commission was not able, at the date of adoption of the contested decision, to resolve all the serious difficulties identified concerning the question whether the disputed measure submitted for its appraisal was selective and therefore constituted State aid within the meaning of Article 107(1) TFEU. In those circumstances, and in the absence of any analysis of the possible compatibility of the disputed measure with the internal market, the Commission should have initiated the formal investigation procedure in order to gather any relevant information for verifying that the disputed measure was not selective and to possibly conclude that that measure did not constitute State aid, and to allow the applicant and the other parties concerned to present their observations in connection with that procedure.

It follows that, in so far as it relates to the ATT exemption for transit and transfer passengers, the contested decision was adopted in breach of the applicant's procedural rights and must therefore be annulled, and there is no need to examine the applicant's other complaints and arguments.