Appeal brought on 25 January 2019 by Sigma Alimentos Exterior, S.L. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-239/11 Sigma Alimentos Exterior v Commission

(Case C-50/19 P)

(2019/C 112/35)

Language of the case: Spanish

Parties

Appellant: Sigma Alimentos Exterior, S.L. (represented by: M. Muñoz Pérez, abogado)

Other party to the proceedings: European Commission

Form of order sought

The appellant submits that the Court should:

—	Uphold the present appeal;

—	Set aside the judgment of the General Court of 15 November 2018, given in Case T-239/11; (1)

—	Annul Article 1(1) of Commission Decision 2011/282/EU of 12 January 2011; (2)

—	In the alternative, annul Article 4 of the contested decision;

—	Order the European Commission to pay the costs.

Grounds of appeal and main arguments

The present appeal is based on two grounds, the second of which is divided into three parts:

—	Incorrect interpretation of the judgment in World Duty Free, (3) setting erroneous comparability criteria which lead, in turn, to an incorrect assessment of the existence of selectivity and, accordingly, to the assessment of unlawful aid, thus infringing the provisions of Article 107 TFEU;

—

Error in holding, on the basis of an erroneous analysis of the three-step method used by the Commission in determining whether there was unlawful aid, that the finding that there may be legal obstacles to cross-border combinations does not preclude the contested measure being selective. The judgment therefore errs in the following respects: — Error in the identification of the national common tax scheme, infringing the provisions of Article 107 TFEU relating to the categorisation of unlawful State aid; — Error in failing to find that the measure examined was a general measure, thus also infringing the provisions of Article 107 TFEU; — Error in the assessment of whether there was an exception to the national common tax scheme as a reference framework, thereby infringing Article 107 TFEU.

The appellant submits that the General Court of the European Union has committed various infringements of Article 107(1) TFEU and of the principle of fiscal neutrality and that, in various respects, it has essentially supplemented the reasoning set out by the Commission in the contested decision or even replaced it with its own, which would, in itself, constitute sufficient grounds for setting aside the judgment under appeal.

---

(1)  Judgment of 15 November 2018, Sigma Alimentos Exterior v Commission (T-239/11, not published, EU:T:2018:781).

(2)  Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

(3)  Judgment of 21 December 2016, Commission v World Duty Free Group and Others (C-20/15 P and C-21/15 P, EU:C:2016:981).