1.

The present case gives the Court an opportunity to clarify the scope of the prohibition on State aid under EU law. In the main proceedings the Spanish Asociación Nacional de Grandes Empresas de Distribución (National Association of Large Distribution Companies, ANGED) is challenging a special tax on large retail establishments (IGEC) in Catalonia.

2.

ANGED and the European Commission consider it to constitute a restriction of the freedom of establishment and unlawful aid for small retail establishments in particular, as such establishments are not subject to the tax. The Court is therefore being asked once again, in this case and in two further cases, ( 2 ) to adopt a position in the area of tension that exists between the Member States’ fiscal sovereignty, on the one hand, and the fundamental freedoms and the rules on State aid, on the other.

3.

In 2005 the Court held that a similar French tax on owners of a sales area exceeding 400 m2 was irrelevant for the purposes of the rules on State aid. ( 3 ) Since then, however, the Court has further developed the concept of aid. The Court must therefore decide once again whether and to what extent the non-taxation of owners of small establishments is to be reviewed on the basis on the rules on State aid.

4.

The framework for this case in EU law is provided by Article 49 in conjunction with Article 54 TFEU, Article 107 et seq. TFEU and Regulation (EC) No 659/1999 ( 4 ) (‘Regulation No 659/1999’) (recast by Regulation (EU) 2015/1589 ( 5 ) (‘Regulation 2015/1589’)).

5.

The tax at issue in the main proceedings is based on Ley del Parlament de Catalunya 16/2000, de 29 de diciembre, del Impuesto sobre Grandes Establecimientos Comerciales (Law of the Parliament of Catalonia 16/2000 of 29 December 2000 on the tax on large retail establishments, ‘Law 16/2000’).

6.

According to the preamble, the IGEC is introduced throughout the territory of Catalonia as a tax which is parafiscal in nature in order to offset the territorial and environmental impact that a concentration of large retail establishments might bring about and to meet the need to both modernise and promote a retail sector integrated in urban areas. The tax also aims to re-establish the balance of competitivity between the two types of undertaking.

7.

According to the purpose of the tax (Article 2), the IGEC ‘is chargeable on the exceptional financial capacity available to certain retail establishments as a result of being set up as large outlets’. The chargeable event (Article 4) is the use of large spaces for commercial purposes. Use of large spaces for commercial purposes means use by individual large retail establishments. These are establishments with a sales area covering 2500 m2 or more.

8.

Under Article 5 (Exemptions), the use of large spaces by individual large retail establishments which are garden centres and those selling vehicles, building materials, machinery and industrial supplies is exempt from the IGEC. A taxable person for the purposes of the IGEC is any natural or legal person who owns an individual large retail establishment, whether or not this is situated within a collective large retail establishment.

9.

The basis of assessment (Article 7) is the total area of the individual large retail establishment, expressed in square metres. The total area is the sum of the following areas: (a) the sales area, reduced by 2499 m2 in respect of the exempt minimum area; (b) the area used for warehousing, workshops, workrooms and production areas; and (c) the customer parking area, which is calculated by applying a coefficient.

10.

Under Article 8 of Law 16/2000, in the case of taxable persons selling, essentially, furniture, sanitary ware and doors and windows and those that are do-it-yourself stores, the net taxable amount is reduced by 60%. Under Article 11 of Law 16/2000, where relevant, relief of 40% is applied to individual large retail establishments which can be accessed by three or more methods of public transport as well as by private vehicle. The IGEC is a tax payable periodically under Article 12 of Law 16/2000. The tax period is a calendar year.

11.

The Fifth additional provision of Ley del Parlament de Catalunya 15/2000, de 29 de diciembre, de medidas fiscales y administrativas (Law of the Parliament of Catalonia 15/2000 of 29 December 2000 on fiscal and administrative measures), following amendment by Article 17 of Ley del Parlament de Catalunya 31/2002, de 30 de diciembre, de medidas fiscales y administrativas (Law of the Parliament of Catalonia 31/2002 of 30 December 2002 on fiscal and administrative measures, ‘Law 31/2002’), provides as follows:

‘Revenue obtained from the [IGEC], which shall in no circumstances be applied to specific aid for retail establishments, shall be distributed as follows: (a) At least 40% shall be applied to infrastructure for municipal facilities and commercial town planning; (b) At least 30% shall be applied to the development of action plans to stimulate the retail sector in areas affected by the installation of large retail establishments; (c) At least 10% shall be applied to the development of environmental action plans in areas affected by the installation of large retail establishments.’

12.

On 21 February 2002, ANGED — a national association of large retail establishments — brought an administrative action against the IGEC on the grounds that it infringed several Spanish constitutional and legal provisions.

13.

By letter of 2 October 2003 from the Director for State Aid in the Commission’s Directorate-General for Competition (‘DG COMP’) to the Kingdom of Spain, the Commission indicated that, having considered the complaint it had received in relation to the IGEC in the light of Article 87 EC (now Article 107 TFEU), it had concluded that the revenue arising from the tax was not being applied to specific aid for commercial undertakings but rather to financing infrastructure for municipal facilities and commercial town planning, to the development of action plans to stimulate the retail sector and to the development of environmental action plans. It ruled out the possibility that the revenue received was used to favour any particular undertaking or a specific sector (more specifically, small urban retailers), since it was used for a purpose of public interest and benefited society as a whole.

14.

By judgment of 27 September 2012, the administrative action brought by ANGED was dismissed. On 12 December 2012, ANGED lodged an appeal on a point of law against that judgment at the Tribunal Supremo (Supreme Court, Spain).

15.

In February and May 2013, ANGED lodged a complaint with the Commission against the Kingdom of Spain, claiming that the IGEC regulations in six autonomous communities infringed EU law. By letter dated 28 November 2014 to the Kingdom of Spain, the Commission then stated that it was minded to regard the exemptions granted to small retailers and to certain specialist establishments as incompatible State aid. The exemptions appeared to give a selective advantage to certain undertakings because they were an exception to the normal tax regime (which taxed retail establishments on the basis of their area).

16.

The Tribunal Supremo (Supreme Court) has now decided to request a preliminary ruling.

17.

It has referred the following questions to the Court:

18.

In the proceedings before the Court, ANGED, Catalonia and the Commission submitted written observations on these questions and took part in the hearing on 6 July 2017.

19.

Catalonia considers the questions to be inadmissible in part, because the referring court does not provide the information necessary for a legal assessment and, furthermore, the situation is purely internal. In particular, it is not explained to what extent the tax constitutes de facto discrimination against cross-border European undertakings.

20.

Neither objection is convincing. The essential elements for a legal assessment from the point of view of EU law are present (see above). The assessment of de facto prejudice is a legal question to be examined outside the scope of admissibility. In so far as the question is whether the levying of a tax on larger retailers affects foreign undertakings in particular and thus deters them from exercising the freedom of establishment in Spain, it also cannot be assumed that the situation is purely internal.

21.

Even though it is apparent that ANGED is principally a national association of Spanish retailers, Law 16/2000 is legislation which also applies to undertakings from other Member States. As the referring court is evidently reviewing the validity of that legislation, the final judgment given by the court making the reference will also affect them. The Court has already ruled in this event that it will give an answer to the questions put to it in relation to the provisions of the Treaty on the fundamental freedoms. ( 6 )

22.

It is more problematic, however, that the applicant in the main proceedings is an association of large retailers whose members would not be able to refuse to pay the taxes at issue even if the non-taxation of owners of smaller retail establishments were to be regarded as unlawful State aid. This follows from the case-law according to which businesses liable to pay a tax cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax. ( 7 )

23.

Because, as a rule (and in the present case), a tax of this kind is to be used for a specific purpose, however, it must always be examined (see point 63 et seq. below) whether the revenue from the tax is used in a manner compatible with the rules on State aid. ( 8 ) The business liable to pay the tax may also therefore have an interest in its review. The request for a preliminary ruling is therefore admissible.

24.

By its first question, the referring court asks whether the freedom of establishment precludes a tax like the IGEC. It must therefore be decided whether (1) there is a restriction of the freedom of establishment which (2) is not justified.

25.

The context is the mode of operation of the IGEC. The IGEC links the chargeable event to the existence of an individual large retail establishment. These are establishments which have a sales area equal to or exceeding 2500 m2. Each square metre of sales area in excess of the ‘allowance’ of 2499 m2 provided for in Article 7 of Law 16/2000 is then taxed at a rate of EUR 17429. An individual retailer with an area of 2500 m2 would therefore — disregarding storage and parking areas, which are still to be taken into account on a pro rata basis — be taxed on 1 m2.

26.

That area is further modified by a coefficient which increases with the size of the area (up to 10000 m2). This results in a certain progressive effect for the tax. There are reliefs or exemptions for certain kinds of individual large retail establishments. Consequently, larger retail establishments are subject to a higher tax burden, in both absolute and relative terms, than individual retail establishments with a smaller area, while all retail establishments are granted an ‘allowance’ of 2499 m2.

27.

Under Article 49 in conjunction with Article 54 TFEU, the freedom of establishment includes the right for nationals of a Member State on the territory of another Member State to take up and pursue activities as self-employed persons. ( 9 ) It is also settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment are restrictions on that freedom. ( 10 )

28.

This is the case with taxes per se. The relevant factor in examining the fundamental freedoms in respect of such prejudice, in my view, ( 11 ) is therefore that a cross-border situation is treated less favourably than a domestic situation. ( 12 )

29.

In the present case, however, there is no difference in treatment. Under Article 7(a) of Law 16/2000, for a sales area between 1 m2 and 2499 m2 there is no different treatment of small and large, Spanish or foreign retail establishments. All establishments are not subject to the tax on that sales area. The threshold acts as a basic allowance which benefits all retailers. Smaller retail establishments (with a sales area below 2500 m2) are not subject to the tax, while larger establishments are subject, but the tax is not levied in respect of the sales area up to 2499 m2. As this ‘basic allowance’ applies to large and small retail establishments, there is no unfavourable treatment of any retail establishment. An infringement of the freedom of establishment in this respect can thus be ruled out.

30.

Only if a different view were taken does the question actually arise whether the non-taxation of small retail establishments constitutes overt or covert discrimination.

31.

No overt discrimination against foreign undertakings is evident in this case. Rather, the tax is levied on any owner of an ‘individual large retail establishment’ with a sales area exceeding the threshold of 2499 m2 (Article 4 of Law 16/2000). As the Court has already ruled, ( 13 ) the fact that foreign investors prefer to open larger retail establishments in order to achieve the economies of scale necessary to penetrate a new territory relates to entry into a new market, rather than to the nationality of the operator. ( 14 )

32.

However, all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result are also prohibited ( 15 ) (‘covert’ or ‘indirect’ discrimination).

33.

In Hervis Sport the Court ruled that where a tax assessment is based on an undertaking’s level of turnover there can possibly be a de facto disadvantage for undertakings which have their registered offices in other Member States. ( 16 ) That case specifically concerned a special tax on retail undertakings, the rate of which was steeply progressive based on turnover. Furthermore, for undertakings belonging to a group the consolidated turnover was used as the basis for classification in a tax band, rather than the turnover of the individual undertaking. The Court held that indirect discrimination can exist where the majority of undertakings which are adversely affected by the steeply progressive scale of the tax, on account of their high turnover, belong to a group with a link in another Member State. ( 17 )

34.

The present case is not comparable with that case, however. Neither is the IGEC steeply progressive, nor are consolidated results aggregated. Instead, regard is had to the size of the on-site sales area in question.

35.

In my view, it cannot be sufficient to have regard solely to whether foreign undertakings are affected in the majority of cases in order to be able to accept the existence of covert discrimination in the context of the fundamental freedoms, ( 18 ) which is the approach taken by the Commission and ANGED. This would, for example, prevent a Member State from introducing a corporation tax if, because of historical developments in the Member State, more than 50% of active undertakings were foreign undertakings. The fact that — more or less by chance — persons affected by the introduction of a tax originate to a large extent or even in their majority from other Member States cannot therefore constitute covert discrimination as such.

36.

The precise conditions for covert discrimination must therefore be clarified. On the one hand, the question arises how strong the correlation between the chosen distinguishing criterion and the place in which a company has its seat must be in order for there to be unequal treatment based on the seat. Thus far, the Court has had in view both a correspondence in the majority of cases ( 19 ) and a mere preponderance of non-residents being affected, ( 20 ) or even mentioned a mere risk of disadvantage. ( 21 ) It would appear to have been established thus far only that a 100% correspondence between the criterion and the place in which the company has its seat is not required. ( 22 )

37.

On the other hand, not only is the necessary degree of correlation uncertain according to case-law, but also the question whether that correlation must typically ( 23 ) exist or must be inherent in the distinguishing criterion, as is indicated in a number of judgments, ( 24 ) or can also be based on more incidental factual circumstances. ( 25 )

38.

In my view, stricter conditions are necessary for the existence of covert discrimination in tax law. It is intended only to include cases which do not constitute discrimination from a purely formal perspective, but have the same effect. ( 26 ) I consider that a provision which entails covert discrimination must therefore affect foreign undertakings in particular intrinsically ( 27 ) or in the vast majority of cases, as was possibly the situation in Hervis Sport. ( 28 )

39.

However, this cannot be accepted where a link is made to a certain sales area, the threshold for which merely has the consequence that, according to a 2004 letter from the Commission, in one year (out of 15 possible years) in Catalonia around 61.5% of the retailers concerned are operated by undertakings from other Member States (or have shareholders from other Member States).

40.

In addition, it is unclear how the ‘origin’ of those undertakings ( 29 ) was determined. In particular, in tax law the origin of an undertaking is determined, as a rule, according to its registered office (place of establishment) and not, for example, according to the nationality of the shareholders. As ANGED is a national association of large distribution establishments in Spain, its members might also be understood to be Spanish undertakings. In addition, even if regard were had to a company’s shareholders, the conclusion is the same. In this regard, according to the material produced by ANGED, ‘only’ 52.03% of the total revenue from the tax is borne by undertakings from other Member States and their share of the total ‘taxed’ sales area is ‘only’ 46.77%. All this does not indicate that in this instance undertakings from other Member States are disadvantaged de facto primarily or structurally in comparison with Spanish undertakings.

41.

If, contrary to the above statements, covert discrimination were nevertheless taken to exist, it would have to be examined whether it is justified. However, that examination covers only the non-taxation of smaller retail establishments. It is not apparent from the request for a preliminary ruling that Spanish undertakings benefit from the exemptions and reductions within the scope of the IGEC (Articles 5 and 8 of Law 16/2000) in the majority of cases.

42.

A restriction of fundamental freedoms may be justified for overriding reasons relating to the general interest, provided it is appropriate for securing the attainment of the objective pursued and does not go beyond what is necessary for attaining that objective. ( 30 )

43.

The IGEC serves purposes of town and country planning and environmental protection (see point 6 above). Establishments are intended to contribute to the costs of negative externalities which they generate disproportionately (such as special costs for infrastructure), because they do not bear those costs themselves at an appropriate level. Objectives relating to town and country planning ( 31 ) and environmental protection ( 32 ) have been recognised as justifications in the Court’s case-law.

44.

Furthermore, the intention is to make a link to, and to skim off, the exceptional financial capacity directly related to the use of large spaces. This is also intended to some extent to mitigate the competitive advantage resulting from the size of the sales area in comparison with smaller retail establishments. In my opinion, the Court has not yet been required to decide whether a difference in financial capacity (and thus a different ability to bear financial burdens) can be regarded as a justification for a restriction of a fundamental freedom. I would not, however, like to rule out that, as with a progressive rate for example, a difference in financial capacity could also justify a difference in treatment for tax purposes. ( 33 )

45.

The restriction must also be appropriate for ensuring the attainment of the objective and may not go beyond what is necessary for attaining that objective, in this case compensating for effects on the territory and the environment that may be connected with setting up large retail establishments. ( 34 )

46.

According to the Court’s case-law, national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. ( 35 )

47.

In this regard, the EU legislature must be allowed a broad discretion in an area which entails political, economic and social choices on its part and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue. ( 36 )

48.

Furthermore, the Court also respects the discretion enjoyed by the Member States in laying down general laws. ( 37 ) In particular, political, economic and social choices are entailed on the part of the legislature when drafting tax legislation. It is also ( 38 ) called upon to undertake complex assessments. In the absence of Community harmonisation, the national legislature has a certain discretion in the field of tax law in fixing a tax for retail establishments. The requirement of consistency is therefore satisfied if the IGEC is not manifestly inappropriate having regard to the objective.

49.

The IGEC places a particular burden on retail establishments with a large area. This is clearly based on the assumption that they generate a higher volume of customer and goods traffic. It is plausible that this higher volume of customer and goods traffic may cause higher noise and air emissions, and thus higher environmental impacts. Consequently, a law under which businesses with higher noise and air emissions are taxed more heavily is appropriate for creating an incentive to operate smaller retail undertakings which — each in themselves — cause lower emissions.

50.

Because smaller undertakings are also easier to integrate in terms of town and country planning, this is also beneficial from the point of view of a sensible and fair distribution of limited space. The law is thus also appropriate for serving purposes of environmental protection and attaining objectives relating to town and country planning in a consistent and systematic manner. ( 39 )

51.

It is immaterial in this regard that the IGEC does not differentiate between establishing a retail undertaking in an urban or a rural area. Regardless of their location, large retail establishments attract a higher volume of goods and customer traffic than smaller retail establishments. The same holds for the non-taxation of collective retail establishments whose individual retail establishments do not exceed the threshold. Accordingly, the tax is not inappropriate, but takes into account the difference in organisational form between a number of small retail establishments and one large retail establishment.

52.

The differentiation between individual and collective retail establishments and the failure to differentiate between establishments in urban and rural areas only show that the tax could potentially be better designed from an environmental point of view in order to attain the abovementioned objectives more purposefully. This does not mean, however, that the contested tax is manifestly inappropriate for achieving those objectives.

53.

It must therefore be clarified whether the tax — which is linked to a sales area of 2500 m2 — is also necessary for attaining those objectives.

54.

In examining necessity in connection with proportionality, according to the Court’s case-law, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. ( 40 )

55.

In that regard, it should be recalled that it is for the Member State relying on an overriding reason in the public interest as justification for a restriction on one of the fundamental freedoms to demonstrate that its legislation is appropriate and necessary to attain the legitimate objective pursued. However, that burden of proof cannot be so extensive — in the context of treaty infringement proceedings — as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions. ( 41 ) This principle must apply a fortiori in preliminary ruling proceedings.

56.

A feature of thresholds is that the question can always be asked why, for example, 2000 m2 or 3000 m2 was not adopted in the law rather than the chosen 2500 m2. However, this question arises with any threshold and, in my view, can only be answered by the democratically mandated legislature. Contrary to the view taken by the Commission, the legislature is not required to prove empirically how it fixed the threshold and it also does not matter whether, in the Commission’s view, the threshold is credible or even ‘right’, as long as it is not manifestly erroneous. That is not the case here.

57.

A higher threshold would perhaps be a less onerous measure, but would not be equally appropriate from the point of view of the Member State. It must be recognised that larger retailers face greater challenges with regard to urban planning and consideration of environmental concerns. It must also be recognised that the size of retail establishments is an indicator of a larger turnover, and thus also of a larger financial capacity (and greater financial strength). Nor can it be deemed manifestly incorrect that larger retailers also benefit to a greater degree from urban infrastructure than smaller retailers. Accordingly, the sales area of retail establishments is a relevant factor with respect to attaining the legislative objectives.

58.

Lastly, contrary to the view taken by the Commission and ANGED, requirements under building law governing the setting up of a retail establishment are not equally capable of ensuring that taxable persons contribute to the costs of the externalities of large retail establishments or of providing a financial incentive to open smaller retail establishments.

59.

Furthermore, restrictions of a fundamental freedom must also be appropriate to the objective pursued. ( 42 ) This means that the restriction and its consequences must not be disproportionate to the aims pursued (which are worthy of protection). ( 43 ) This therefore requires the specific consequences to be weighed, taking into consideration the abstract importance of the protected legal interests (environmental protection and town and country planning) and the affected legal interest ( 44 ) (hypothetically the exercise of a fundamental freedom).

60.

In this instance the tax is not disproportionate to the purposes pursued. The burden is not so high that economic activity would no longer be possible (‘choking effect’). In particular, the first 2499 m2 are not taxed at all and, according to the Catalonian authorities, the tax is deductible from the basis of assessment for Spanish income tax. In addition, reliefs are offered where the retail establishments can be accessed by two or more methods of public transport (see Article 11 of Law 16/2000). Furthermore, environmental protection and town and country planning are legal interests of high importance for the co-existence of a society, and of very high importance in the case of environmental protection (which is expressly mentioned in Article 11 TFEU, Article 3(3) TEU and Article 37 of the Charter of Fundamental Rights of the European Union). ( 45 ) Consequently, even a (covert) restriction of the freedom of establishment would be justified.

61.

With regard to the second question, it must be examined whether the rules of Law 16/2000 constitute unlawful aid under Article 107(1) TFEU.

62.

It should be pointed out, first of all, that the Court has held on a number of occasions that businesses liable to pay a tax cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax. ( 46 )

63.

It would be otherwise, however, if the tax and the envisaged exemption were an integral part of an aid measure. For that to be so, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated for the financing of the aid and has a direct impact on the amount thereof and, consequently, on the assessment of the compatibility of that aid with the internal market. ( 47 )

64.

In this regard it can be stated — as the Commission also indicated in its letter of 2 October 2003 — that revenue from this tax is not used for specific aid for businesses. Instead, it is used to finance infrastructure for municipal facilities and commercial town planning, for the development of action plans to stimulate the retail sector and the development of environmental action plans. Accordingly, it can be ruled out, in accordance with the view taken by the Commission at the time, that the revenue obtained favours a specific undertaking or a particular sector, as it pursues an objective in the general interest and benefits society as a whole.

65.

Consequently, undertakings which are required to pay that tax cannot rely on the unlawfulness of the ‘exemption’ granted before national courts in order to avoid payment of that tax or to obtain its refund. If they cannot rely on it, however, there is no need for any further statements regarding the possible existence of aid. The review of the lawfulness of the aid in the form of non-taxation of smaller retailers is then reserved for the Commission in a normal State aid procedure under Article 108 TFEU.

66.

Nevertheless, as the referring court is not reviewing the tax notices, but the underlying law, which could also have significance for persons other than ANGED, further statements regarding Article 107 TFEU would appear to be useful for the referring court at least.

67.

Assuming this to be the case, it must be examined whether (1) the non-taxation of owners of smaller retailers, (2) the exemption for certain larger retailers or (3) the tax relief for certain larger retailers constitute aid within the meaning of Article 107(1) TFEU.

68.

According to the Court’s settled case-law, classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires, first, that there is an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition. ( 48 )

69.

With regard to the question whether the rules at issue in the main proceedings grant the recipient an advantage, it should be noted that, according to the Court’s settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid. ( 49 )

70.

Favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a financial position more favourable than that of other taxpayers can also come under Article 107(1) TFEU. ( 50 )

71.

In particular, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking, and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect, are considered to be aid. ( 51 )

72.

As regards the non-taxation of smaller retail establishments, it should be stated that under Article 4 of Law 16/2000 only retail establishments from a sales area of 2500 m2 are to be taxed. The background to this is that a certain financial capacity is presumed (on a highly generalised basis) as from this size (see Article 2 of Law 16/2000). Under normal market conditions and in accordance with the will of the Spanish regional legislature, smaller retail establishments (below the threshold of 2500 m2 under Article 4(3) of Law 16/2000) are not taxed. Therefore, for them no burdens are mitigated which are normally included in the budget of smaller retail establishments. Even larger retail establishments are not subject to taxation in respect of the first 2499 m2 of their sales area. There is thus again no unfavourable treatment (see point 29 et seq. above) and no economic advantage which smaller retail establishments would not have obtained under normal market conditions.

73.

The non-taxation of small retail establishments cannot therefore constitute aid. At most, the tax relief or exemption for certain larger retail establishments (under Article 5 of Law 16/2000 it applies, inter alia, to building materials stores and under Article 8 of Law 16/2000, inter alia, to do-it-yourself stores) from the intrinsically relevant tax can be construed as such an advantage. It would then also have to be selective.

74.

It must thus be examined whether (1) the exemption for certain larger retailers or (2) the tax relief for certain larger retailers amounts to ‘favouring certain undertakings or the production of certain goods’ within the meaning of Article 107(1) TFEU and there is therefore a ‘selective advantage’ for the purposes of the Court’s case-law.

75.

In the alternative — should the Court also consider the non-taxation of smaller retail establishments to be an advantage which they would not have obtained under normal market conditions — it must also be examined whether (3) the non-taxation of owners of smaller retailers constitutes such a ‘selective advantage’.

76.

The examination of such selectivity in the tax legislation of the Member States presents considerable difficulties. ( 52 )

77.

Case-law repeatedly takes as its starting point the premiss that a tax regime is not selective if it is applicable without distinction to all economic operators. ( 53 ) According to case-law, however, the mere fact that a tax regime grants an advantage only to those undertakings which satisfy its conditions is not in itself capable of establishing its selectivity. ( 54 )

78.

As far as tax advantages are concerned, therefore, the Court has made any finding as to their selectivity subject to special conditions. According to that case-law, the ultimately decisive factor is whether, in accordance with the criteria laid down by the national tax system, the conditions governing the tax advantage are selected in a non-discriminatory manner. ( 55 ) To answer that question, it is necessary to begin by identifying the ordinary or ‘normal’ tax regime applicable in the Member State concerned. It is in relation to that ordinary or ‘normal’ tax regime that it is necessary, secondly, to assess whether the advantage granted by the tax measure in question is selective.

79.

This is conceivable where that measure is a derogation from that ordinary system, in so far as it differentiates between operators who, in the light of the objective pursued by the tax system of that Member State, are in a comparable factual and legal situation. ( 56 ) Even if those conditions are satisfied, the favourable treatment may be justified by the nature or general purposes of the system of which it is a part, in particular where a tax regime results directly from the basic or guiding principles of the national tax system. ( 57 )

80.

Such a special test to establish whether or not tax regimes are selective is necessary because — unlike subsidies in the narrow sense in the form of cash benefits — tax advantages are granted in the context of a tax system to which, as a general rule, undertakings are permanently and inevitably subject. Tax systems include differentiations in many different ways, the purpose of those differentiations being, as a rule, simply to ensure that the tax achieves the precise objective it pursues. That said, according to case-law. such ‘favourable’ differentiations, which are not subsidies in the narrow sense, are classified as aid only if they are similar in character and have the same effect. ( 58 )

81.

Thus, it is only where a Member State also uses its existing tax system as a means of distributing cash benefits for purposes other than those of that tax system that there are grounds for treating such tax advantages as subsidies in the narrow sense. ( 59 )

82.

The Court undertakes a consistency test, where inconsistency ultimately indicates abuse. Only this time it is not asked whether the taxable person selects abusive arrangements in order to avoid tax. Rather, it is asked whether, on an objective analysis, the Member State ‘abuses’ its tax law in order to make subsidies to individual undertakings in circumvention of the rules on State aid.

83.

It follows from this finding, first, that an unjustifiable difference in treatment operated in the tax system of the Member State is necessary to support the conclusion that a tax advantage is selective within the meaning of Article 107(1) TFEU. The crucial factor in this regard is whether that differentiation arises from the nature or the overall structure of the system of which it is part. ( 60 )

84.

Furthermore, in accordance with the wording of Article 107(1) TFEU, that unjustified difference in treatment would have to be based on a differentiation for the benefit of either ‘certain undertakings’ or ‘the production of certain goods’. It is for that reason that the Court, in particular in the judgment in Gibraltar, has held that a tax system must characterise the recipient undertakings, by virtue of the properties which are specific to them, as a privileged category. ( 61 )

85.

In World Duty Free Group ( 62 ) this finding seems at first sight to have been qualified slightly. ( 63 ) In that case, a tax scheme which provided tax advantages (short amortisation period) for all taxable persons which acquired foreign undertakings with goodwill was regarded as selective because other taxable persons which acquired domestic undertakings were able to amortise goodwill only over a longer period. As taxable persons do not per se constitute specific undertakings or the production of specific goods, the criteria laid down in Article 107(1) TFEU did not apply. ( 64 ) However, that ruling concerned a special case of ‘export promotion’ for domestic undertakings in respect of investments abroad to the detriment of foreign undertakings, which runs counter to the legal principle laid down in Article 111 TFEU. Accordingly, specific export subsidies can satisfy the selectivity criterion even where they apply to all taxable persons.

86.

The referring court considers that the scheme at issue may grant a selective advantage on a number of counts, namely through the different treatment of individual retail establishments depending on their size, the tax relief or exemption for certain individual retail establishments and the non-taxation of collective retail establishments.

87.

The referring court has therefore selected various ‘normal’ tax regimes as the basis for its examination. In so far as it suspects that the non-taxation of smaller individual retail establishments is selective, it uses a reference framework under which all retail establishments would be covered. In so far as the non-taxation of collective retail establishments is addressed, however, the reference framework is the taxation of all retail establishments. In so far as larger individual retail establishments to which exemptions and relief are granted are addressed, the reference framework would be all larger retail establishments.

88.

The reference framework therefore varies according to the difference in treatment under consideration. This makes apparent the fact — as the Court, too, found in the judgment in Gibraltar ( 65 ) — that the determination of a ‘normal’ tax system cannot be decisive. As the Court reiterated in World Duty Free, ( 66 ) the examination of the difference in treatment in question in the light of the objective pursued by the law alone is decisive.

89.

It must therefore be clarified, in accordance with the Court’s case-law, whether the rules of Law 16/2000 result in differences in treatment which are not based in the specific tax legislation itself, but pursue purposes which are extrinsic to it — that is to say, extraneous purposes. ( 67 )

90.

This entails a closer analysis of the legislative objectives. As was stated above in point 43, the aim of the law is environmental protection, town and country planning and contribution to costs by undertakings which are presumed, based on a generalised approach, to have a particular financial capacity because they use large sales areas. There is also a certain ‘redistributive function’ when economically stronger actors are subject to a heavier financial burden than economically weaker actors.

91.

As regards the tax relief under Article 8 of Law 16/2000 (reduction of the net tax base by 60%), it should be borne in mind that establishments given over to the sale of furniture and doors and windows and do-it-yourself stores generally require a larger sales and storage area on account of their product range. In comparison with large retail establishments with a smaller range, the generalised presumption of stronger financial capacity in the case of a larger sales area is not entirely accurate.

92.

In addition, such retail establishments are especially reliant on a larger area, with the result that they in particular are affected by the tax. As special regard must be had to the principle of proportionality in tax law, it is perfectly understandable, ( 68 ) and not manifestly extraneous in the light of the objective of taxing particular financial capacity, that the national legislature takes this particular burden into consideration.

93.

It should also be taken into account, in the light of the objective of environmental protection — and contrary to what ANGED seems to think — that because of their product range the abovementioned taxable persons do not attract as high a volume of customers per m2 as other retail establishments. As a rule, a store selling doors and windows is visited less often by a customer than a discount supermarket with the same area. These less frequent customer visits probably also contribute to a lower volume of goods traffic. There is no need to determine whether this is actually the case. As the national legislature is required to take a decision based on forecasts in this regard, this can be reviewed only with respect to a manifest error (with regard to the test, see point 48 above). No such manifest error is evident in this instance, however.

94.

With regard to the objective of town and country planning, it is not clear at first sight why relief should be granted to do-it-yourself stores. However, this is immaterial, since it is sufficient if the difference in treatment can be justified by one of the legislative objectives. That is so in this case with regard to taxation based on financial capacity and consideration of negative environmental impacts.

95.

Similar considerations apply to the exemption under Article 5 of Law 16/2000 for retail establishments which are garden centres and those selling vehicles, building materials, machinery and industrial supplies. By reason of their sales range, such undertakings are reliant on a particularly large area.

96.

In that case, the presumption of exceptional financial capacity where there is a larger area is even more questionable. In this regard, they are taxed more than other taxable persons. Here too, it is understandable, and not extraneous, that account is taken of this particular burden. The same holds with regard to the frequency of customer visits and the volume of goods traffic in comparison with ‘normal’, frequently visited large retail establishments such as discount supermarkets. The retail establishments mentioned in Article 5 of Law 16/2000 generally sell to other undertakings which purchase in larger volumes but visit the sales areas less frequently.

97.

Furthermore, the referring court also criticises the complete non-taxation of retail establishments with a sales area of less than 2500 m2. However, according to case-law, a selective advantage possibly exists only where the measure is a derogation from the ordinary system, in so far as it differentiates between operators who, in the light of the objective pursued by the tax system of that Member State, are in a comparable factual and legal situation. ( 69 )

98.

There is no unequal treatment of smaller and larger retail establishments in this respect because large retail establishments are also not taxed on their first 2499 m2 of sales area (see point 72 above). All retail establishments thus obtain this ‘advantage’ of non-taxation. Even if small retail establishments were included within the scope of the tax, they would not be taxed in respect of their total area from 1 m2 to 2499 m2, just like large retail undertakings. Furthermore, small and large retail establishments are not in a comparable situation (see point 100 et seq.). However, even if unequal treatment were assumed, this differentiation is justified (see point 103 et seq.).

99.

In World Duty Free Group in particular, the Court stressed that the recipient must, in the light of the objective pursued by the regime in question, be in a comparable factual and legal situation and accordingly suffer different treatment that can, in essence, be classified as discriminatory. ( 70 )

100.

Therefore, the de facto non-taxation of owners of smaller retailers (whether individual or as part of a collective retail establishment) is not a selective advantage for them which satisfies the definition of aid under Article 107(1) TFEU, as that differentiation is intrinsic to the legislative objective, which is to reduce adverse effects on the environment and town and country planning caused by larger retail establishments, by creating an incentive to operate smaller retail establishments which are not taxed.

101.

Larger and smaller retail establishments differ on account of their sales area, the resulting financial capacity and the volume of customer and goods traffic per square metre. In the view of the Member State — which is not manifestly incorrect — they are not in a legally and factually comparable situation.

102.

The same holds, in my view, for the past non-taxation of ‘collective retail establishments’. As neither the individual financial capacity of the individual owner of a retail establishment nor the negative environmental impacts caused by it increase solely because it is part of a collective retail establishment, it is also — contrary to the view taken by the Commission — consistent with the legislative objective if regard has been had in the past only to the individual owner of a retail establishment. As operators or lessors of retail premises in a large shopping centre themselves are not commercial establishments, it also does not run counter to the logic of the law if they have not been taxed in the past.

103.

If, on the other hand, the Court accepts that small and larger retail establishments are factually and legally comparable, it must then be examined whether the envisaged differentiation can be justified.

104.

With regard to the size of the sales area, that is so, in my view. The size of the sales area indicates (without manifest error at least) a certain volume of products and customers, and thus a certain level of customer and goods traffic with the resulting noise and air emissions and other effects which are of particular detriment to the community. In addition, the size of a retail establishment can also be seen as a (rough) indicator of a larger turnover and a larger financial capacity, and thus greater economic strength.

105.

In addition, there can be no objection from the point of view of administrative procedure if the number of retail establishments covered, and thus to be checked, is reduced by means of a threshold. This also contributes to administrative simplification. Even in EU VAT law, small undertakings (undertakings whose turnover does not exceed a certain ‘allowance’) are not taxed and this is not considered an infringement of the rules on State aid. In view of the legislative objectives pursued, it is also perfectly understandable to have regard to individual sales area, rather than individual turnover or individual profit, as the former is easily ascertainable (simple and effective administration) and less prone to circumvention than profit, for example.

106.

The question whether ‘collective retail establishments’ could also be taxed or whether this would be even better for the objectives pursued by the Law (or would be even ‘more logical’, as the Commission seems to mean) is a decision to be taken by the national legislature and cannot be answered by the Court. However, the non-taxation of ‘collective retail establishments’ (in addition to or instead of individual retail establishments) is not manifestly incorrect (in particular ‘abusive’ — see point 82 above) from the perspective of EU at least.

107.

The non-taxation of smaller retail establishments (and also of collective retail establishments) does not therefore constitute a selective advantage for such undertakings. In this regard there is no advantage or unjustified difference in treatment. Their non-taxation is objectively in keeping with the legislative objectives of the Law 16/2000.

108.

The tax relief for certain undertakings with a larger area can also be explained objectively in the light of the legislative objectives pursued. The same holds for the tax exemption as, based on a generalised approach, the undertakings to which exemptions or relief are granted are different in terms of environmental impacts and financial capacity in relation to area, having regard to the latitude available to the legislature for forecasting.

109.

By its third question, the referring court asks about the scope ratione temporis of the finding as aid. The matter at issue for the court is evidently whether the finding of the existence of aid is effective ex nunc or ex tunc. In the light of the above answers, however, there is no longer any need to answer the third question.

110.

Even if it were assumed that the non-inclusion of smaller retail establishments constitutes unlawful aid, recovery of that advantage is precluded. It is the Court’s settled case-law that recovery of fiscal aid means that the transactions actually carried out by the recipients of the aid in question must be subject to the tax treatment which the recipients would have received in the absence of the unlawful aid. ( 71 ) Even if small retail undertakings were included within the scope of the IGEC, their first 2499 m2 would not be taxed and for that very reason there is no scope for retroactive taxation of small retail undertakings.

111.

The third question asked by the referring court actually arises only in respect of the tax exemption and relief under Articles 5 and 8 of Law 16/2000. In this regard it would have to be examined whether, as a consequence of the letter of 2 October 2003 from DG COMP, there is now existing aid which can be cancelled only ex nunc.

112.

Article 17 et seq. of Regulation No 659/1999 (now Article 21 et seq. of Regulation 2015/1589) provides for a special system for existing aid, which precludes retroactive recovery. Only abolition of the aid scheme (Article 18 of Regulation No 659/1999, now Article 22 of Regulation 2015/1589) ex nunc is therefore possible.

113.

The meaning of ‘existing aid’ is clear from Article 1(b) of Regulation No 659/1999 (which is identical to Article 1(b) of Regulation 2015/1589). It covers authorised aid (ii) or aid which is deemed to be existing aid pursuant to Article 15 (iv). On the other hand, Article 1(b)(v) of Regulation No 659/1999, which is cited by the referring court, is not relevant — as both ANGED and the Commission submit — since it is not established that at the time it was put into effect the IGEC did not constitute aid and only subsequently became aid due to the evolution of the common market.

114.

Authorised aid under Article 1(b)(ii) of Regulation No 659/1999 also does not exist, as the letter of 2 October 2003 from DG COMP does not constitute authorisation of aid, but merely indicates that, having considered a complaint, the Commission had concluded that the revenue was not being applied to specific aid.

115.

As the Commission submits, this cannot be considered to constitute authorisation of aid. Under Article 3 of Regulation No 659/1999 (which is identical to Article 3 of Regulation 2015/1589), notifiable aid may not be put into effect before the Commission has taken a decision authorising such aid. It is clear from Article 4 of Regulation No 659/1999 (and from Article 4 of Regulation 2015/1589) that a decision of the Commission is taken on the basis of a notification of aid by the Member State. No such notification was made in this instance. Therefore, there were neither grounds for the Commission to grant authorisation nor a reason for the Kingdom of Spain to assume authorisation. This is also clear from the wording of the letter.

116.

Accordingly, it is necessary to examine only Article 1(b)(iv) of Regulation No 659/1999. Under that provision, aid pursuant to Article 15(3) of Regulation No 659/1999 (now Article 17(3) of Regulation 2015/1589) is existing aid after the expiry of the limitation period of 10 years laid down in Article 15(1) of Regulation No 659/1999 (now Article 17(1) of Regulation 2015/1589). The second paragraph provides that the limitation period begins on the day on which the unlawful aid is awarded. If the exemption from tax constitutes aid, the aid is then awarded when the excessively low tax came into effect.

117.

The tax arises for each year on the expiry of the tax period (which, under Article 12 of Law 16/2000, is a calendar year), thus for 2001 on the expiry of 2001, that is to say in 2002. The limitation period is 10 years in principle, while any action taken by the Commission interrupts that limitation period. Assuming that consideration of the complaint in 2002 is sufficient to constitute an interruption, the limitation period for 2001 and 2002 also does not begin until 2003. The limitation period for this reduced tax for those years thus expired in 2013, as the limitation period for 2003 began at the start of 2004 and expired at the end of 2013. The limitation period for 2004 would have expired at the end of 2014. However, on account of the letter from the Commission in 2014, a new limitation period starts to run. Thus, only the period from 2001 to 2003 can be considered as existing aid. From 2004 there is no existing aid.

118.

In accordance with recital 13 and Article 14 of Regulation No 659/1999 (now Article 16 of Regulation 2015/1589) and according to the Court’s case-law, ( 72 ) such aid must, as a rule, be recovered from the beneficiary of the aid; this would be the large retail establishments to which relief or exemptions were granted and the previously untaxed small retail establishments.

119.

Should the Court consider the tax relief and exemption for or the non-taxation of small retail establishments as unlawful aid, this applies only for the period from 2001 to 2003 as existing aid within the meaning of Article 17 et seq. of Regulation No 659/1999.

120.

I therefore propose that the questions referred by the Tribunal Supremo (Supreme Court, Spain) be answered as follows: