OPINION OF ADVOCATE GENERAL

   KOKOTT

   delivered on 15 October 2020 ( [1]1 )

   Case C-562/19 P

   European Commission

   v

   Republic of Poland

   (Appeal - State aid - Tax on the retail sector - Article 107(1) TFEU -
   Advantage and selectivity - Standard of review in creating the
   reference system - Consistency of the reference system - Advantage in
   respect of the progressive rate - Difference in treatment -
   Justifications for differences in treatment - Annulment of the negative
   decision and concurrent review of the decision to initiate the
   procedure and a suspension injunction)

   I. Introduction

   1.

   This appeal gives the Court an opportunity once again ( [2]2 ) to
   review a recently introduced tax law in the light of the rules on State
   aid. Following the international trend, Poland based a direct business
   tax on turnover rather than profit and opted for a progressive rate
   structure. It was intended, in a similar way to the EU digital services
   tax proposed by the Commission, ( [3]3 ) to cover and tax primarily
   undertakings with high turnovers (that is to say, large undertakings).

   2.

   Because the average tax rate increases with the volume of turnover,
   there is a degree of relief or redistribution of the tax burden in
   favour of `smaller' undertakings. Even though the planned digital
   services tax at EU level and the tax on the retail sector in Poland are
   similar in this respect, the Commission considers the Polish tax to
   constitute State aid for smaller undertakings, which are `taxed at too
   low a level'. The Commission had therefore barred the implementation of
   that law in advance, pending the conclusion of the investigation
   procedure, which Poland - like Hungary in a parallel case ( [4]4 ) -
   considers to be an infringement of its fiscal autonomy.

   3.

   The appeal thus not only raises the question whether a progressive
   business tax can actually constitute a selective advantage for the
   purposes of Article 107(1) TFEU. The General Court rejected such an
   advantage in its judgment at first instance. ( [5]5 ) The question also
   arises whether the rules on State aid are the proper instrument for
   reviewing national tax legislation in this depth and, as happened here,
   for blocking it for years. A related question is whether or not the
   standard of review for entire (general) tax laws should be different in
   the rules on State aid than for individual grants.

   4.

   It should also be borne in mind that an intensive check on
   discrimination is already made through the fundamental freedoms. In
   this context, the Court has already held two similar turnover-based
   direct business taxes in Hungary to be compatible with the fundamental
   freedoms in their redistributive purpose. ( [6]6 ) It is true that the
   comparison groups are different, as the Commission rightly pointed out
   at the hearing. In tax law the fundamental freedoms prohibit foreign
   undertakings being placed at a disadvantage, while the prohibition of
   State aid prevents the favouring of `certain undertakings'. However,
   both prohibitions of discrimination serve the completion of the
   internal market. If a measure is compatible with the prohibition of
   discrimination under the fundamental freedoms, it would probably not,
   as a rule, be aid which is incompatible with the internal market.

   II. Legal framework

   5.

   The legal framework is provided by Article 107 et seq. TFEU. The
   procedure regarding unlawful aid is regulated in Chapter III of
   Regulation (EU) 2015/1589 laying down detailed rules for the
   application of Article 108 TFEU ( [7]7 ) (`Regulation 2015/1589').

   6.

   Article 13(1) of the regulation states:

   `The Commission may, after giving the Member State concerned the
   opportunity to submit its comments, adopt a decision requiring the
   Member State to suspend any unlawful aid until the Commission has taken
   a decision on the compatibility of the aid with the internal market
   ("suspension injunction").'

   III. Background to the dispute

   7.

   In early 2016, the Polish Government planned to introduce a new tax on
   the retail sector. Its basis of assessment would be turnover and it
   would be progressive in nature. When the Commission learned of that
   plan, it sent a request for information to the Polish authorities and
   stated as follows:

   8.

   `The rates of progressive turnover taxes paid by undertakings are in
   fact linked to the size of the undertaking and not to its profitability
   or solvency. They cause discrimination between undertakings and may
   seriously disrupt the market. In so far as they introduce a difference
   in treatment between undertakings, they have been found to be
   selective. Since all the conditions set out in Article 107(1) TFEU are
   met', they give rise to State aid under that article.

   9.

   On 6 July 2016, Poland adopted the Law on the tax on the retail sector.
   The tax is levied on the retail sale of goods to consumers who are
   natural persons. All retailers, regardless of their legal status, must
   pay the tax. The basis of assessment is monthly turnover above
   17 million Polish zlotys (PLN), which is approximately EUR 4 million.
   The tax rates are 0.8% for the portion of monthly turnover between
   PLN 17 million and PLN 170 million and 1.4% for the portion of monthly
   turnover above that. The law in question entered into force on
   1 September 2016.

   10.

   After some discussion between the Polish authorities and the
   Commission, the latter initiated the procedure laid down in
   Article 108(2) TFEU in respect of the measure at issue by Decision of
   19 September 2016 on the State aid SA.44351 (2016/C) (ex 2016/NN) (`the
   decision to initiate the procedure'). ( [8]8 ) In that decision, the
   Commission not only invited interested parties to submit their
   comments, but also ordered the Polish authorities, pursuant to
   Article 13(1) of Regulation 2015/1589, to suspend immediately `the
   application of progressive rates to its tax, until the Commission has
   taken a decision on the compatibility of [the Law on the tax on the
   retail sector] with the internal market'. Poland thereupon suspended
   the introduction of the planned tax.

   11.

   At the same time as continuing discussions with the Commission, on
   30 November 2016 the Polish Government applied to the General Court to
   have the decision to initiate the procedure annulled (Case T-836/16).
   By decision of the President of the Ninth Chamber of the General Court
   of 27 April 2017, Hungary was granted leave to intervene in support of
   the Republic of Poland.

   12.

   The Commission closed the State aid procedure by adopting Decision (EU)
   2018/160 of 30 June 2017 on the State aid SA.44351 (2016/C) (ex
   2016/NN) implemented by Poland for the tax on the retail sector (`the
   negative decision'). ( [9]9 )

   13.

   The Commission stated in that decision that the measure at issue
   constituted State aid which was incompatible with the internal market
   and that it had been unlawfully put into effect. The Polish authorities
   had to cancel permanently all payments suspended pursuant to the
   decision to initiate the procedure. Since the measure at issue had not
   in actual fact been implemented, the Commission considered that there
   was no need to recover aid from beneficiaries.

   14.

   On 13 September 2017, the Polish Government also requested the General
   Court to annul the negative decision (Case T-624/17). By decision of
   the President of the Ninth Chamber of the General Court of 12 January
   2018, Hungary was granted leave to intervene in support of the Republic
   of Poland.

   15.

   In the decision to initiate the procedure and in the negative decision
   (collectively, `the contested decisions') - but with its line of
   argument being augmented in certain regards in the negative decision -
   the Commission essentially justified the classification of the measure
   at issue as State aid, in the light of the definition contained in
   Article 107(1) TFEU, as follows.

   16.

   First, undertakings with a low turnover were granted favourable tax
   treatment by the Law on the tax on the retail sector in comparison with
   other undertakings required to pay that tax. The waiver by the State of
   the financial resources which it would have collected if all
   undertakings were subject to the same average effective tax rate
   entailed a transfer of resources from the State to the favoured
   undertakings. Average tax rates at zero or at a lower level for
   undertakings with a low turnover in comparison with higher average tax
   rates for undertakings with a higher turnover gave the former an
   advantage.

   17.

   Furthermore, the Commission considered that the relevant reference
   system for determining a selective advantage was the tax on the retail
   sector, including in respect of undertakings with a turnover of less
   than PLN 17 million, but that the progressive structure of the tax did
   not form part of that reference system. The progressive structure of
   the tax, in so far as it entailed not only marginal tax rates but also
   average tax rates which differed between undertakings, constituted a
   derogation from the reference system which was considered to be applied
   with a single tax rate.

   18.

   The derogation from the reference system entailed by the progressive
   structure of the tax was not justified by the nature or general scheme
   of the system. In the decision to initiate the procedure, the
   Commission stated that sectoral policy objectives, such as regional
   policy, environmental or industrial policy, could not be taken into
   account in that respect. The Polish authorities had emphasised the
   redistributive purpose of the progressive tax structure. They justified
   this by the fact that undertakings with higher turnovers enjoy
   economies of scale, better conditions of supply and tax strategies that
   are not available to smaller undertakings.

   19.

   In the view of the Commission, such a redistributive purpose was not
   compatible with a turnover-based tax which was only levied on
   undertakings relative to their volume of activity and not relative to
   their charges, profitability, ability to pay or facilities which,
   according to the Polish authorities, only large undertakings can use.
   For the Commission, a progressive tax levied on turnover could be
   justified in order to offset or deter the occurrence of certain
   negative effects likely to be generated by the activity concerned
   (negative externalities), which were more significant the larger the
   turnover, but such a situation had in no way been established in the
   present case. The Commission viewed the assertion by the Polish
   authorities that the progressive structure of the tax allowed
   small-scale retailers to be preserved against large format retail as
   evidence that those authorities were seeking to influence the structure
   of competition in the market.

   20.

   By decision of 4 July 2018, the General Court joined Cases T-836/16 and
   T-624/17 for the purposes of the oral part of the procedure.

   21.

   By the judgment under appeal of 16 May 2019, the General Court upheld
   the two actions brought by Poland against the contested decisions and
   annulled both the decision to initiate the procedure and the negative
   decision by the Commission.

   IV. Procedure before the Court

   22.

   On 24 July 2019, the Commission lodged the present appeal against the
   judgment of the General Court. The Commission claims that the Court
   should:

   -

   set aside the judgment under appeal;

   -

   reject the pleas raised by the Republic of Poland against the contested
   decisions and order it to pay the costs of the proceedings;

   -

   in the alternative, refer the case back to the General Court for a
   ruling on the pleas that have not yet been examined.

   23.

   The Republic of Poland, supported by Hungary, contends that the Court
   should:

   -

   dismiss the appeal as unfounded;

   -

   order the Commission to pay the costs of the proceedings.

   24.

   Poland, Hungary and the Commission submitted written observations on
   the appeal before the Court and presented oral argument on 1 September
   2020.

   V. The grounds of appeal

   25.

   The Commission relies on two grounds of appeal. By the first ground of
   appeal, the Commission alleges that the General Court misapplied
   Article 107(1) TFEU in so far as it rejected a selective advantage
   arising from the Polish tax on the retail sector for lower-turnover
   undertakings. According to the second ground of appeal, the General
   Court misinterpreted Article 108(2) TFEU and Article 13(1) of
   Regulation 2015/1589 in so far as it also annulled the decision to
   initiate the procedure, which contained a provisional suspension
   injunction.

   A. First ground of appeal: incorrect interpretation of Article 107(1)
   TFEU

   26.

   By its first ground of appeal, the Commission alleges that the General
   Court erred in law in interpreting Article 107(1) TFEU. In essence, it
   complains that the General Court wrongly rejected a selective advantage
   and thus aid. As grounds, it argues in three parts that the General
   Court chose an incorrect reference framework (see V.A.1.a), examined
   the comparability of the undertakings in the light of a non-fiscal
   objective (see V.A.2.a) and, in examining selectivity, took into
   consideration an objective that was not necessarily connected with the
   tax on the retail sector (see V.A.2.b).

   27.

   The Court of Justice has consistently held - as was also asserted by
   the General Court - that classification as `State aid' within the
   meaning of Article 107(1) TFEU requires that, first, there must be
   intervention by the State or through State resources. Second, the
   intervention must be liable to affect trade between Member States.
   Third, it must confer a selective advantage on the recipient. Fourth,
   it must distort or threaten to distort competition. ( [10]10 ) In this
   instance it is necessary only to review the General Court's legal
   opinion on the criterion of the selective advantage.

   28.

   According to the normal standard of review, the decisive factor is
   whether, in accordance with the criteria laid down by the national tax
   system, the conditions governing the tax advantage have been selected
   in a non-discriminatory manner. ( [11]11 ) To answer that question, it
   is necessary to begin by identifying the ordinary or `normal' tax
   system applicable in the Member State concerned (the `reference
   framework'). 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 an unjustified exception and
   therefore selective. ( [12]12 )

   1.   Existence of a selective advantage or incorrect choice of
   reference framework (first part of the first ground of appeal)

   29.

   The Commission complains in particular that, in reviewing whether a
   selective advantage existed, the General Court chose the wrong
   reference framework. While the Commission assumed a turnover-based tax
   with a single (proportional) rate (at an unknown level), the General
   Court erroneously had regard to the progressive rate chosen by the
   Polish legislature.

   (a)   Selective advantage arising from a general tax law: the approach
   to examination in creating a reference framework

   30.

   Because Article 107(1) TFEU does not contain any of the constituent
   elements of a reference framework and its review consistently gives
   rise to significant difficulties - I refer to the concerns now being
   raised by several Advocates General ( [13]13 ) - it must be examined in
   some depth.

   31.

   According to settled case-law of the Court, 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. ( [14]14 )

   32.

   This case-law has been applied to tax law. A tax measure 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 fall under Article 107(1) TFEU. ( [15]15 ) Thus,
   measures which mitigate the charges that are 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 constitute aid. ( [16]16 )

   33.

   This case-law was developed against the background of fiscal exceptions
   that exempted or relieved an individual undertaking from the tax burden
   actually applicable. ( [17]17 ) Because in the present case all
   undertakings `profit' from the allowance (up to PLN 17 million) and all
   undertakings also `profit' from the reduced rate of 0.8% for the
   portion of monthly turnover between PLN 17 million and PLN 170 million,
   this cannot be the selective advantage. At most, the different average
   rate resulting from the progressive rate structure might constitute a
   selective advantage favouring taxable persons with lower turnover.

   (1) Principle: determination of `normal' taxation by the Commission or
   the Member State?

   34.

   In essence, the first ground of appeal relied on by the Commission
   raises the question of competence as to who determines the tax burden
   that is normally to be borne by an undertaking, such that non-taxation
   of others would be to their advantage. In the Commission's view,
   `normal' taxation is a turnover-based income tax with a proportional
   rate (at an unknown level). In the view of the Polish legislature,
   `normal' taxation is a turnover-based income tax with a progressive
   rate from 0% to just below 1.4%. The different average rates resulting
   from the progressive scale are the inevitable consequence and thus
   constitute normal taxation. Poland relies on its fiscal sovereignty in
   this regard.

   35.

   The Court's case-law also repeatedly affirms and takes into
   consideration the fiscal autonomy of Member States. For example, only
   recently, in the Grand Chamber, the Court has again ruled that the
   Member States are free, given the current state of harmonisation of EU
   tax law, to establish the system of taxation that they deem the most
   appropriate, and consequently the application of progressive taxation
   falls within the discretion of each Member State. ( [18]18 ) In that
   context, in the view of the Grand Chamber, `contrary to what is
   maintained by the Commission, progressive taxation may be based on
   turnover, since, on the one hand, the amount of turnover constitutes a
   criterion of differentiation that is neutral and, on the other,
   turnover constitutes a relevant indicator of a taxable person's ability
   to pay'. ( [19]19 )

   36.

   The principles laid down in these rulings, which were delivered in
   connection with the fundamental freedoms, apply equally to the rules on
   State aid. In this field too, the Court has ruled that, in the absence
   of European Union rules governing the matter, it falls within the tax
   competence of the Member States to designate bases of assessment and to
   spread the tax burden across the various factors of production and
   economic sectors. ( [20]20 ) Therefore, in principle, only an exception
   to this autonomously designed tax system can be assessed on the basis
   of the rules on State aid, not the creation of the tax system itself.

   37.

   This is acknowledged as a matter of principle by the Commission in
   paragraph 156 of its Notice on the notion of State aid as referred to
   in Article 107(1) of the Treaty on the Functioning of the European
   Union, ( [21]21 ) where it states that `Member States are free to
   decide on the economic policy which they consider most appropriate [in
   accordance with Union law] and, in particular, to spread the tax burden
   as they see fit across the various factors of production ...'.

   38.

   Furthermore, I am not aware of any provision of EU law that prescribes
   a specific structure for the national taxes of the Member States,
   except for harmonised taxes. It is not therefore possible to infer
   `normal' taxation from EU law. The basis can only ever be the decision
   by the national legislature in question as to what it deems to be
   normal taxation. In the present case this is an income tax for
   retailers which is progressive in nature and the basis of assessment of
   which is turnover.

   39.

   The national legislature is thus able to determine above all the object
   of taxation, the basis of assessment and the rate structure. Poland
   availed itself of that power in this instance by establishing a
   turnover-based income tax for retailers with a progressive average rate
   from 0% to just below 1.4% (which stems from the allowance and two tax
   bands). This is not precluded, in principle, by the rules on State aid.

   (2) Exception: review of consistency by the Court in the Gibraltar
   judgment

   40.

   Nor does anything to the contrary follow from the Court's ruling in the
   Gibraltar judgment, which is repeatedly cited by the Commission. In
   that ruling, the Court did examine Gibraltar's system of corporate
   taxation on the basis of the rules on State aid and accepted the
   existence of aid. However, it did not substitute its own view of
   general normal taxation for that of the Member State.

   41.

   The Court certainly did not find in that case that the rules on State
   aid prescribe a certain form of taxation. It `merely' reviewed the
   internal logic of the law at issue. Under the proposed tax reform at
   that time, uniform profit-based income taxation of all companies
   established in Gibraltar was to be introduced. ( [22]22 ) However, the
   factors chosen by the legislature, such as number of employees,
   business property and registration fee, clearly had nothing to do with
   uniform income taxation of all undertakings. Nor had the United Kingdom
   made any attempt to explain those factors. ( [23]23 )

   42.

   In this regard, that judgment of the Court of Justice does represent an
   exception ( [24]24 ) to the principle set out above, according to which
   Member States have autonomy in determining the reference framework,
   because the Court in fact reviewed the creation of a reference
   framework in respect of the existence of aid. However, the Court did
   nothing more than carry out a kind of review of possible abuse in the
   exercise of national fiscal sovereignty. In essence, it merely verified
   whether the Member State acted consistently (and not abusively) in the
   exercise of its fiscal sovereignty.

   43.

   In that instance, it rightly found this not to be the case. The
   Gibraltar law on tax was intended solely to circumvent the rules on
   State aid by using purportedly general profit-based income taxation to
   establish very low taxation of certain companies which were intended to
   generate income (offshore companies). The Commission and the Court
   rightly considered this to constitute aid. The selective advantage
   resided in the internal inconsistency between the reasons for or
   objective of the law and the design of the law. Even though it was
   aimed at general profit-based income taxation of all undertakings
   established in Gibraltar, specific undertakings were intentionally made
   subject to only very low taxation. ( [25]25 )

   44.

   In that judgment, contrary to the assertion made by the Commission in
   the present case, the Court did not therefore substitute its own view
   of general normal taxation for that of the Member State. Nor did it
   rule that EU law prescribes a certain tax rate structure. It merely
   ruled that correctly general income taxation of all resident
   undertakings cannot be based on extrinsic factors, the objective of
   which is simply to favour certain undertakings that, as a rule, manage
   without large premises and without many staff, as was the case with
   offshore companies. ( [26]26 )

   45.

   In essence, the Court thus prevented Member States from abusing their
   general tax law in order to grant advantages to individual undertakings
   in circumvention of the rules on State aid. That abuse of fiscal
   autonomy resulted from a manifestly inconsistent design of the tax law
   for Gibraltar.

   (3) Consistency of the Polish tax on the retail sector

   46.

   There is no need for a more extensive examination in the case of
   generally applicable tax laws. If EU law respects the fiscal
   sovereignty of the Member States and if the rules on State aid do not
   prescribe any specific design for national tax systems, a generally
   applicable tax law - which just creates the reference framework - can
   constitute aid only if its design was manifestly inconsistent. ( [27]27
   )

   47.

   The examination of the selective advantage in the case of a generally
   applicable tax law is then reduced to just this one stage. The
   remaining - and still contestable - stages (how the correct reference
   framework is determined, are there exceptions or a counter-exception,
   are the differentiations specifically justified and who bears the
   burden of proof for what) can be omitted.

   48.

   Such inconsistency in the Polish tax on the retail sector was rightly
   found by the General Court not to exist. Thus, it asserts in
   paragraph 67 et seq. of the judgment under appeal that the normal
   system was the Polish law in its specific progressive structure, which
   resulted in heavier taxation of undertakings with a higher turnover and
   lower taxation of undertakings with a smaller turnover (paragraph 75).
   This followed from the redistributive purpose associated with a
   progressive rate (paragraph 83). Consequently, a selective advantage
   could not be inferred solely from the progressive structure
   (paragraph 93). Because the Commission did not assert or demonstrate
   any other inconsistency (paragraph 94 et seq.), the law in question
   could not be regarded as State aid.

   49.

   I am not convinced by the arguments against this view put forward by
   the Commission in the appeal. ( [28]28 )

   (i) Turnover-based income tax

   50.

   It is not inconsistent to create a turnover-based income tax. The
   Commission's arguments are ultimately all based on the idea that, in
   the taxation of financial capacity, regard should be had solely to
   profit (or efficiency, that is to say, profit margin). Only this
   properly reflects taxable capacity. At the hearing the Commission also
   repeatedly submitted that only profit-based income taxation is capable
   of correctly taxing ability to pay.

   51.

   The Commission fails to recognise that profit too is only a (notional)
   parameter for the uniform taxation of ability to pay. It says something
   about real ability to pay only to a limited extent, as is shown by the
   BEPS debate. ( [29]29 ) This worldwide debate arises because
   undertakings with high profits clearly do not pay the corresponding
   taxes as they are able to reduce the assessment bases significantly
   (`base erosion') or shift profits to low-tax countries (`profit
   shifting').

   52.

   Profit-based income taxation, like turnover-based income taxation, has
   its advantages and disadvantages. However, these must be weighed up and
   accounted for not by an authority or a court, but by a democratically
   mandated legislature. When drafting tax legislation, the legislature
   (here the Polish legislature) can decide which tax is, in its view,
   appropriate. In any case, the rules on State aid do not require the tax
   which is, in the Commission's view, most appropriate to be introduced.

   53.

   The calculations and statistics provided by the Commission in the
   appeal are therefore also ineffective as they work with a profit
   margin. If the Polish legislature takes turnover as the basis in order
   to avoid the problems of profit taxation, a profit margin, which is in
   turn based on such easily influenced profit, cannot be used to show
   that turnover-based taxation is `inappropriate'.

   54.

   Contrary to the submission made by the Commission, a profit-based
   income tax is also not unquestionably preferable (in the words of the
   Commission `appropriate'). On the contrary, around the world
   turnover-based income taxes are on the rise, as is shown by the
   Commission's proposed digital services tax. ( [30]30 ) This uses annual
   turnover as the basis for the taxation of undertakings. The Polish tax
   on the retail sector and the planned EU digital services tax are no
   different in this respect.

   (ii) Progressive rate

   55.

   In addition, a progressive rate does not constitute an inconsistency
   per se. Progressive rates are a perfectly common means in income
   taxation of achieving taxation according to financial capacity. This
   holds both for profit-based income taxation and for turnover-based
   income taxation. Here too, the Commission's proposed digital services
   tax shows that a progressive rate structure is a common fiscal method
   of taxing particularly efficient undertakings.

   56.

   When, in its written pleadings, the Commission disputes that the
   proposed EU digital services tax has a progressive rate, this is
   correct only at first sight. Under Article 8 of the proposal, the rate
   is in fact 3% uniformly and is thus proportional. However, the
   Commission fails to recognise that any allowance in a proportional tax
   produces different average tax rates and thus a progressive rate
   curve. ( [31]31 ) It is similar with an exemption limit. The rate curve
   of the proposed turnover-based EU digital services tax, with its (two
   average) tax rates, ranges from 0% to 3%, while the average rate
   increases from 0% to 3% as turnover rises once the thresholds are
   exceeded. It is thus also progressive.

   57.

   Furthermore, the Commission's argument that a progressive rate
   structure is appropriate only for taxation of natural persons because
   it is only for them, according to the theory of marginal utility, that
   the individual utility gain is reduced as income increases, is also
   ineffective. Progressive rates would therefore be used only for
   taxation of natural persons.

   58.

   The Commission fails to understand that the theory of marginal utility
   is an economic theory and not a rule of law. Because `utility' cannot
   be measured, it has not been possible thus far to infer from that
   theory any definitive (legal) statements regarding the correct tax
   rate. ( [32]32 ) In the past, conversely, even proportional rates were
   considered discriminatory. ( [33]33 )

   59.

   The reason why, as the Commission rightly asserts, progressive rates
   tend to be used for taxation of natural persons would therefore seem to
   be that legal persons are able to evade the progressive effect
   arbitrarily through spin-offs or larger group structures. Nevertheless,
   this problem does not make progressive corporate taxation covering both
   natural and legal persons inconsistent.

   60.

   Moreover, the examples of taxation which the Commission cites and
   regards as unfair do not demonstrate any inconsistency. Thus, the
   Commission maintains that the Polish progressive rate is not an
   appropriate means because taxation is 30 times higher where turnover is
   10 times higher. This example merely shows, however, the logical
   consequences of a progressive tax curve. The EU digital services tax
   proposed by the Commission, with its exemption limits, produces even
   more extreme results. ( [34]34 )

   61.

   Aside from this, the criterion of appropriateness is in any case the
   wrong criterion. As was stated above (point 52), the appropriateness of
   a national tax must be assessed by the national legislature. The rules
   on State aid, in a case where the reference framework is only just
   determined, can merely eliminate inconsistencies. The Polish tax on the
   retail sector nevertheless implements the progressive tax structure
   consistently.

   (b)   Conclusion

   62.

   Consequently, the General Court was right to reject the existence of
   aid within the meaning of Article 107(1) TFEU. The first part of the
   first ground of appeal is unfounded and must therefore be rejected.

   (c)   In the alternative: normal standard of review of a selective
   advantage

   63.

   Even if, in examining a general tax law like the one at issue, the
   Court were not to confine itself to a review of consistency, it is not
   evident that the General Court erred in law in rejecting the existence
   of aid.

   64.

   According to the normal standard of review, it is necessary to begin by
   identifying the ordinary or `normal' tax system 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 an unjustified
   exception and therefore selective. ( [35]35 )

   65.

   The latter point requires there to be unequal treatment of undertakings
   in a comparable situation which cannot be justified. ( [36]36 ) A
   measure which constitutes an exception to the application of the
   general tax system may be justified if the Member State concerned can
   show that that measure results directly from the basic or guiding
   principles of its tax system. ( [37]37 ) In essence, this selectivity
   test is a discrimination test. ( [38]38 )

   66.

   The General Court rightly found that the Commission chose the incorrect
   reference framework. The relevant reference framework can only be the
   prevailing national law and not hypothetical or notional law. Anything
   else would permit the Commission to replace the respective national
   legislature and to determine its favoured tax system as the reference
   framework.

   67.

   In so far as the Commission relies in this regard on the Court's ruling
   in the Gibraltar judgment, as has already been stated above in point 40
   et seq., it misunderstands the statements made there. In that judgment
   the Court certainly did not create a notional reference framework
   itself.

   68.

   The choice of the incorrect reference framework by the Commission, as
   the Court has ruled, ( [39]39 ) necessarily `vitiates the whole of the
   analysis of the condition relating to selectivity'. For this reason,
   the contested negative decision should be annulled. The first part of
   the first ground of appeal is therefore also unfounded on application
   of the normal standard of review.

   2.   The other two parts of the first ground of appeal

   69.

   By the other two parts of the first ground of appeal, the Commission
   objects to the additional considerations put forward by the General
   Court and alleges that there too it wrongly rejected the existence of
   aid. Since, according to paragraphs 69 and 70 of the judgment under
   appeal, the additional considerations put forward by the General Court
   only examine whether a different conclusion follows from the Court's
   ruling in the Gibraltar judgment, which has already been found not to
   be the case above (point 40 et seq.), no further examination of the
   other parts of the first ground of appeal is necessary.

   70.

   The General Court did, however, further examine whether aid
   nevertheless exists. The Court possibly assumed in paragraphs 69
   and 70, to the benefit of the Commission, that in the contested
   decisions the Commission also used the correct reference framework (a
   progressive turnover-based business tax) and affirmed the existence of
   aid on that basis. Otherwise, the further examination of the
   comparability of the situations and the justification of a difference
   in treatment would not make any sense. The General Court also rejected
   the existence of aid in this respect. This point is contested by the
   Commission with the other two parts of the first ground of appeal. At
   the hearing it became clear that the Commission alleges in particular
   that the General Court rejected the comparability of undertakings with
   high and low turnovers.

   (a)   In the alternative: second part of the first ground of appeal -
   comparability of higher-turnover and lower-turnover undertakings

   71.

   Consequently - and because there was a lengthy discussion on the
   subject between the parties at the hearing - it will be examined in the
   alternative whether also on this premiss (assumption of the correct
   reference framework by the Commission) the General Court did not err in
   law by rejecting a selective advantage. The Commission considers it an
   error in law that the Court rejected the comparability of
   lower-turnover and higher-turnover undertakings in so far as it had
   regard to the wrong legislative objective (second part of the first
   ground of appeal).

   72.

   This part of the first ground of appeal is also unfounded. If the
   progressive turnover-based income tax is the actual reference
   framework, the consistent implementation of that reference framework is
   not an exception that should somehow be justified, but the rule.

   73.

   Furthermore, within that reference framework there is no discernible
   unjustifiable difference in treatment of undertakings in a comparable
   situation. Larger and smaller retailers differ in that reference system
   precisely on account of their turnover and resulting financial
   capacity. In the view of the Member State - which is not manifestly
   incorrect here (with regard to consistency see above, point 46 et
   seq.) - they are not in a legally and factually comparable situation.

   74.

   The Commission, on the other hand, clearly considers that it follows
   from the objective of a tax of generating revenue for the national
   budget that each taxable person should be taxed at the same (relative)
   level. Accordingly, the General Court should have had regard, in
   relation to comparability, only to the objective of generating tax
   revenue. The volume of turnover is irrelevant to that objective and,
   for that reason, lower taxation of undertakings with low turnovers
   cannot be justified.

   75.

   This line of argument cannot be accepted. In the context of a review of
   State aid, the objective of a tax cannot be limited to the generation
   of revenue. Rather, the crucial factor is the specific taxation
   objective pursued by the legislature in drafting taxation
   legislation, ( [40]40 ) which is evident by way of interpretation from
   the nature of the tax and its design. An intrinsic objective of a
   progressive tax is absolute and relatively higher taxation of taxable
   persons with a higher ability to pay. This should therefore also be
   taken into consideration in examining comparability, as the General
   Court rightly did.

   76.

   The General Court stated in this regard in paragraph 75 of the judgment
   under appeal that it may reasonably be presumed that an undertaking
   which achieves a high turnover may, because of various economies of
   scale, have proportionately lower costs than an undertaking with a
   smaller turnover and is therefore capable of paying more in terms of
   tax. This too cannot be criticised from a legal point of view. As the
   Court has already held, ( [41]41 ) the level of turnover can certainly
   represent a relevant indicator of taxable capacity.

   77.

   This is suggested, first, by the fact that high profits are not
   actually possible without high turnover and, second, by the fact that
   as a rule the profit from additional turnover (marginal profit)
   increases with falling fixed unit costs. It would not therefore appear
   unreasonable to regard turnover, as a reflection of an undertaking's
   size or market position and potential profits, also as a reflection of
   its financial capacity and to tax it on that basis. ( [42]42 )

   78.

   As emerged at the hearing, the Commission has deliberated a great deal
   about the correct taxation of ability to pay. In this exercise the
   disadvantages of a turnover-based income tax have rightly been
   highlighted and potentially more sensible alternatives demonstrated. It
   is unclear, however, what bearing these very profound fiscal
   considerations have on the rules on State aid. Nor did the Commission
   answer an enquiry made by the Court in this regard at the hearing. It
   may be that a profit calculation by means of a balance sheet comparison
   is more precise than linking to net turnover. Contrary to the view
   taken by the Commission, however, the rules on State aid do not inquire
   about a more sensible or a more precise tax system, but the selective
   favouring of certain undertakings over others in the same situation.

   79.

   The second part of the first ground of appeal is therefore also
   unfounded.

   (b)   In the alternative: third part of the first ground of appeal:
   justification of a differentiation

   80.

   By the third part of the first ground of appeal, the Commission alleges
   that the General Court erred in law because it took external reasons
   into consideration in connection with the justification of a difference
   in treatment.

   81.

   This part of the appeal is based on the misassumption that there is a
   difference in treatment of comparable taxable persons, as only then
   does the question of a justification arise. Because that is not the
   case, as has been explained above, this part of the appeal is examined
   only in the alternative in the event that, against expectations, the
   Court considers a retailer with a monthly net turnover of, for example,
   EUR/PLN 50000 and a retailer with a monthly net turnover of, for
   example, EUR/PLN 200 million to be in a comparable situation.

   82.

   It would then have to be assessed whether the General Court was wrong
   to consider the difference in treatment connected with the different
   average rate of a progressive tax to be justified. Contrary to the
   Commission's view, justifications other than purely fiscal reasons are
   conceivable justifications for a difference in treatment. In this
   respect, plausible non-fiscal reasons can also justify a
   differentiation, as was acknowledged, for example, in ANGED with regard
   to environmental and town and country planning reasons in connection
   with a tax on retail sales area. ( [43]43 )

   83.

   In the present case, the General Court did not take into consideration
   any incorrect justifications. In paragraphs 75 and 76 of the judgment
   under appeal, the Court considered the different average rate to be
   justified in the light of the principle of taxation according to
   ability to pay and the objective thereby pursued of the redistribution
   of the tax burden between taxable persons with higher capacity and
   taxable persons with less capacity.

   84.

   This cannot be criticised from a legal point of view. Nor can it be
   stated that the progressive tax scale of the Polish tax on the retail
   sector is not based in the specific tax legislation itself, but pursues
   purposes which are extrinsic to it and extraneous. ( [44]44 ) The
   volume of turnover indicates (without manifest error at least) a
   certain financial capacity. Accordingly, as the Commission itself shows
   with the proposal for a digital services tax, ( [45]45 ) turnover can
   also be seen as a (slightly rougher) indicator of greater economic
   power, and thus greater financial capacity.

   85.

   Furthermore, the principle of the welfare state - which the European
   Union recognises in Article 3(3) TEU - also justifies a progressive tax
   rate which imposes a heavier burden, even in relative terms, on those
   with greater financial capacity than on taxable persons with not quite
   so much financial capacity. This applies at least in the case of a tax
   which also covers natural persons, which is the situation here.

   86.

   The Commission's criticism that in paragraph 94 of the judgment under
   appeal the General Court disregarded the burden of proof is also
   ineffective. It is based the incorrect view that turnover-based
   progressive taxes are per se aid requiring justification.

   3.   Conclusion

   87.

   The first ground of appeal raised by the Commission is therefore
   unfounded in its entirety.

   B. Second ground of appeal: misinterpretation of Article 108(2) TFEU
   and Article 13 of Regulation 2015/1589

   88.

   By the second ground of appeal, the Commission asserts that the General
   Court failed to recognise, with regard to the annulment of the decision
   to initiate the procedure and of the suspension injunction, that the
   conditions under Article 108(2) TFEU and the conditions under
   Article 13 of Regulation 2015/1589 were met. Consequently, the decision
   to initiate the procedure and the suspension injunction were still
   lawful and could not be revoked solely because the negative decision
   was annulled.

   89.

   It follows from the case-law of the Court of Justice, which was taken
   into consideration by the General Court, that doubts as to the
   existence of aid are sufficient for the initiation of a State aid
   procedure pursuant to Article 108(2) TFEU. ( [46]46 ) It is therefore
   possible successfully to challenge the decision to initiate the
   procedure in isolation only if the Commission has committed manifest
   errors of assessment. ( [47]47 ) This also applies to the provisional
   suspension injunction under Article 13 of Regulation 2015/1589. Such an
   injunction is possible, in principle, regardless of whether, in the
   final analysis, the measure in question actually constitutes aid. (
   [48]48 )

   90.

   The Commission thus relies on a less rigorous standard of review in
   respect of the decision to initiate the procedure, which the Court has
   developed for cases where the decision to initiate the procedure or the
   suspension injunction is challenged in isolation. ( [49]49 )

   91.

   This special standard of review (point 89) is intended to enable the
   Commission to conduct the relevant State aid procedure on any
   reasonable grounds for suspicion of aid and to identify the necessary
   factors, even if it is not yet certain whether aid actually exists.
   This is the basis and the spirit and purpose of the less rigorous
   standard of review from the time when the State aid procedure is
   initiated until the final decision is adopted.

   92.

   The uncertainty taken into consideration by the special standard of
   review tends, first of all, to be factual uncertainty rather than legal
   uncertainty. Legal uncertainty cannot really be dispelled by the
   further State aid procedure carried out by the Commission. This can be
   clearly seen in this case. Either the progressive rate of a
   turnover-based income tax is a selective advantage per se or it is not.
   This legal assessment was the same at the time of the decision to
   initiate the procedure as at the time of the negative decision, since
   the overall legal conditions did not change in the interim. In the
   judicial review of its action, the Commission thus bears the risk, as
   always, that its legal assessment might prove to be incorrect.

   93.

   Second, there is no reason for the special (less rigorous) standard of
   review if, as in this case, the contested negative decision is reviewed
   concurrently with the decision to initiate the procedure and the
   suspension injunction and it is established that in substantive terms
   aid never existed. There is no longer any need for the uninterrupted
   implementation of a State aid procedure where it has already been
   concluded and, in the absence of aid, cannot be initiated again.

   94.

   It is not therefore necessary to determine whether the Commission's
   misappraisal was also manifest for the purposes of the special standard
   of review, a view to which I would be inclined in the light of the
   above statements (point 26 et seq.). ( [50]50 )

   95.

   An automatic annulment of the decision to initiate the procedure is
   conceivable in this case even if the Court were not to affirm that
   there was manifestly no aid at the time of the decision to initiate the
   procedure. The rules which enable the Commission to adopt a decision to
   initiate the procedure (Article 108(2) TFEU) and to adopt a suspension
   injunction (Article 13 of Regulation 2015/1589) on any doubts as to the
   existence of aid are evidently based on the presumption that aid
   possibly exists. ( [51]51 ) If, however, this possibility is
   definitively ruled out on account of the legally binding annulment of
   the final decision, there is no longer any reason not to link the fate
   of those decisions to the fate of the annulment of the negative
   decision. That holds at least if all the decisions are challenged
   together and are vitiated by the same material error in law, namely
   that aid does not exist.

   96.

   In the case of a joint examination, both decisions (the decision to
   initiate the procedure and the suspension injunction) - which are
   definitively settled either with the binding force of the negative
   decision ( [52]52 ) or, as in this case, with the annulment of the
   negative decision - also share the material fate of the decision to
   conclude the relevant procedure for reasons of procedural economy. The
   annulment of the contested decision to initiate the procedure and of
   the suspension injunction contained therein is thus merely a
   declaratory revocation, which saves the EU Courts from making a
   declaration of the settlement of the decision to initiate the procedure
   and the connected legal consequences.

   97.

   Accordingly, the second ground of appeal and thus the appeal brought by
   the Commission in its entirety are unfounded.

   VI. Costs

   98.

   Under Article 184(2) of the Rules of Procedure of the Court of Justice,
   where the appeal is unfounded, the Court is to make a decision as to
   costs. Under Article 138(1), which applies to the procedure on appeal
   in accordance with Article 184(1) thereof, the unsuccessful party is to
   be ordered to pay the costs if they have been applied for in the
   successful party's pleadings. Because the Commission has been
   unsuccessful, it must be ordered to pay the costs.

   99.

   Under Article 184(1) in conjunction with Article 140(1), Hungary, as
   intervener, must bear its own costs.

   VII. Conclusion

   100.

   In the light of the foregoing, I propose that the Court should:

   1.

   dismiss the appeal brought by the Commission;

   2.

   order the European Commission to bear its own costs and to pay the
   costs of the Republic of Poland;

   3.

   order Hungary to bear its own costs.
     __________________________________________________________________

   ( [53]1 ) Original language: German.

   ( [54]2 ) The first time it did so was in the judgment of 15 November
   2011, Commission and Spain v Government of Gibraltar and United Kingdom
   ([55]C-106/09 P and C-107/09 P, [56]EU:C:2011:732), where the
   Commission brought proceedings against the new corporate tax law for
   Gibraltar. The situation was similar in the judgments of 26 April 2018,
   ANGED ([57]C-233/16, [58]EU:C:2018:280), of 26 April 2018, ANGED
   ([59]C-234/16 and C-235/16, [60]EU:C:2018:281), and of 26 April 2018,
   ANGED ([61]C-236/16 and C-237/16, [62]EU:C:2018:291).

   ( [63]3 ) Proposal for a Council Directive on the common system of a
   digital services tax on revenues resulting from the provision of
   certain digital services, 21 March 2018, COM(2018) 148 final.

   ( [64]4 ) The proceedings are pending before the Court as Case
   C-596/19.

   ( [65]5 ) Judgment of 16 May 2019, Poland v Commission ([66]T-836/16
   and T-624/17, [67]EU:T:2019:338, `the judgment under appeal').

   ( [68]6 ) Judgments of 3 March 2020, Tesco-Global Áruházak
   ([69]C-323/18, [70]EU:C:2020:140), and of 3 March 2020, Vodafone
   Magyarország ([71]C-75/18, [72]EU:C:2020:139).

   ( [73]7 ) Council Regulation of 13 July 2015 laying down detailed rules
   for the application of Article 108 of the Treaty on the Functioning of
   the European Union ([74]OJ 2015 L 248, p. 9).

   ( [75]8 ) [76]OJ 2016 C 406, p. 76.

   ( [77]9 ) [78]OJ 2018 L 29, p. 38.

   ( [79]10 ) Judgments of 27 June 2017, Congregación de Escuelas Pías
   Provincia Betania ([80]C-74/16, [81]EU:C:2017:496, paragraph [82]38);
   of 21 December 2016, Commission v World Duty Free Group and Others
   ([83]C-20/15 P and C-21/15 P, [84]EU:C:2016:981, paragraph [85]53); and
   of 21 December 2016, Commission v Hansestadt Lübeck ([86]C-524/14 P,
   [87]EU:C:2016:971, paragraph [88]40).

   ( [89]11 ) See also, to that effect, judgments of 21 December 2016,
   Commission v World Duty Free Group and Others ([90]C-20/15 P
   and C-21/15 P, [91]EU:C:2016:981, paragraph [92]54), and of 14 January
   2015, Eventech ([93]C-518/13, [94]EU:C:2015:9, paragraph [95]53); see
   also, expressly outside the field of tax law, judgment of 21 December
   2016, Commission v Hansestadt Lübeck ([96]C-524/14 P,
   [97]EU:C:2016:971, paragraphs [98]53 and [99]55).

   ( [100]12 ) See, inter alia, judgment of 19 December 2018, A-Brauerei
   ([101]C-374/17, [102]EU:C:2018:1024, paragraph [103]36).

   ( [104]13 ) See Opinion of Advocate General Saugmandsgaard Ře in
   A-Brauerei ([105]C-374/17, [106]EU:C:2018:741, point [107]61 et seq.);
   Opinion of Advocate General Wahl in Andres v Commission
   ([108]C-203/16 P, [109]EU:C:2017:1017, point [110]88 et seq.); and my
   Opinions in Tesco-Global Áruházak ([111]C-323/18, [112]EU:C:2019:567,
   point [113]151 et seq.); in Vodafone Magyarország ([114]C-75/18,
   [115]EU:C:2019:492, point [116]163 et seq.); in ANGED ([117]C-233/16,
   [118]EU:C:2017:852, point [119]76 et seq.); in ANGED ([120]C-234/16
   and C-235/16, [121]EU:C:2017:853, point [122]74 et seq.); and in ANGED
   ([123]C-236/16 and C-237/16, [124]EU:C:2017:854, point [125]76 et
   seq.).

   ( [126]14 ) Judgments of 27 June 2017, Congregación de Escuelas Pías
   Provincia Betania ([127]C-74/16, [128]EU:C:2017:496,
   paragraph [129]65), and of 9 October 2014, Ministerio de Defensa and
   Navantia ([130]C-522/13, [131]EU:C:2014:2262, paragraph [132]21);
   similarly, judgment of 15 November 2011, Commission and Spain v
   Government of Gibraltar and United Kingdom ([133]C-106/09 P
   and C-107/09 P, [134]EU:C:2011:732, paragraph [135]71 - `normally
   included in the budget').

   ( [136]15 ) See, inter alia, judgments of 9 October 2014, Ministerio de
   Defensa and Navantia ([137]C-522/13, [138]EU:C:2014:2262,
   paragraph [139]23); of 15 November 2011, Commission and Spain v
   Government of Gibraltar and United Kingdom ([140]C-106/09 P
   and C-107/09 P, [141]EU:C:2011:732, paragraph [142]72); and of 15 March
   1994, Banco Exterior de Espańa ([143]C-387/92, [144]EU:C:1994:100,
   paragraph [145]14).

   ( [146]16 ) Judgments of 27 June 2017, Congregación de Escuelas Pías
   Provincia Betania ([147]C-74/16, [148]EU:C:2017:496,
   paragraph [149]66); of 19 March 2013, Bouygues and Bouygues Télécom v
   Commission ([150]C-399/10 P and C-401/10 P, [151]EU:C:2013:175,
   paragraph [152]101); of 15 November 2011, Commission and Spain v
   Government of Gibraltar and United Kingdom ([153]C-106/09 P
   and C-107/09 P, [154]EU:C:2011:732, paragraph [155]71); and of 15 March
   1994, Banco Exterior de Espańa ([156]C-387/92, [157]EU:C:1994:100,
   paragraph [158]13).

   ( [159]17 ) See judgments of 19 December 2018, A-Brauerei
   ([160]C-374/17, [161]EU:C:2018:1024, paragraph [162]28); of 28 June
   2018, Andres (Insolvenz Heitkamp BauHolding) v Commission
   ([163]C-203/16 P, [164]EU:C:2018:505, paragraph [165]97); of
   21 December 2016, Commission v World Duty Free Group and Others
   ([166]C-20/15 P and C-21/15 P, [167]EU:C:2016:981, paragraph [168]68);
   of 8 September 2011, Paint Graphos ([169]C-78/08 to C-80/08,
   [170]EU:C:2011:550); and of 10 January 2006, Cassa di Risparmio di
   Firenze and Others ([171]C-222/04, [172]EU:C:2006:8,
   paragraph [173]132).

   ( [174]18 ) Judgment of 3 March 2020, Tesco-Global Áruházak
   ([175]C-323/18, [176]EU:C:2020:140, paragraph [177]69), and of 3 March
   2020, Vodafone Magyarország ([178]C-75/18, [179]EU:C:2020:139,
   paragraph [180]49).

   ( [181]19 ) Judgment of 3 March 2020, Tesco-Global Áruházak
   ([182]C-323/18, [183]EU:C:2020:140, paragraph [184]70), and of 3 March
   2020, Vodafone Magyarország ([185]C-75/18, [186]EU:C:2020:139,
   paragraph [187]50).

   ( [188]20 ) Judgments of 26 April 2018, ANGED ([189]C-233/16,
   [190]EU:C:2018:280, paragraph [191]50), and of 15 November 2011,
   Commission and Spain v Government of Gibraltar and United Kingdom
   ([192]C-106/09 P and C-107/09 P, [193]EU:C:2011:732,
   paragraph [194]97).

   ( [195]21 ) [196]OJ 2016 C 262, p. 1.

   ( [197]22 ) See judgment of 15 November 2011, Commission and Spain v
   Government of Gibraltar and United Kingdom ([198]C-106/09 P
   and C-107/09 P, [199]EU:C:2011:732, paragraph [200]12).

   ( [201]23 ) See judgment of 15 November 2011, Commission and Spain v
   Government of Gibraltar and United Kingdom ([202]C-106/09 P
   and C-107/09 P, [203]EU:C:2011:732, paragraphs [204]149 and [205]150).

   ( [206]24 ) The judgment of 19 December 2018, A-Brauerei
   ([207]C-374/17, [208]EU:C:2018:1024, paragraph [209]32) would also seem
   to be along similar lines.

   ( [210]25 ) See expressly judgment of 15 November 2011, Commission and
   Spain v Government of Gibraltar and United Kingdom ([211]C-106/09 P
   and C-107/09 P, [212]EU:C:2011:732, paragraphs [213]99, [214]102
   and [215]106).

   ( [216]26 ) See expressly judgment of 15 November 2011, Commission and
   Spain v Government of Gibraltar and United Kingdom ([217]C-106/09 P
   and C-107/09 P, [218]EU:C:2011:732, paragraph [219]106).

   ( [220]27 ) See also, in that sense, my Opinions in Tesco-Global
   Áruházak ([221]C-323/18, [222]EU:C:2019:567, point [223]151 et seq.);
   Vodafone Magyarország ([224]C-75/18, [225]EU:C:2019:492, point [226]170
   et seq.); and ANGED ([227]C-233/16, [228]EU:C:2017:852, point [229]81
   et seq.).

   ( [230]28 ) These are more or less the same arguments as were made
   during the proceedings in Tesco-Global Áruházak ([231]C-323/18,
   [232]EU:C:2020:140) and Vodafone Magyarország ([233]C-75/18,
   [234]EU:C:2020:139).

   ( [235]29 ) See, inter alia, the OECD `Action Plan on Base Erosion and
   Profit shifting' - available at
   https://www.oecd.org/ctp/BEPSActionPlan.pdf - p. 13: `Fundamental
   changes are needed to effectively prevent double non-taxation, as well
   as cases of no or low taxation associated with practices that
   artificially segregate taxable income from the activities that generate
   it'.

   ( [236]30 ) Proposal for a Council Directive on the common system of a
   digital services tax on revenues resulting from the provision of
   certain digital services, 21 March 2018, COM(2018) 148 final.

   ( [237]31 ) See my comments in the Opinions in Tesco-Global Áruházak
   ([238]C-323/18, [239]EU:C:2019:567, point [240]1, footnote 3), and
   Vodafone Magyarország ([241]C-75/18, [242]EU:C:2019:492, point [243]3,
   footnote 4).

   ( [244]32 ) See, inter alia and very succinctly, Birk/Desens/Tappe
   (ed.), Steuerrecht, 22nd edition 2019, paragraph 38.

   ( [245]33 ) For example, back in 1958, Bundesverfassungsgericht
   (Federal Constitutional Court), judgment of 24 June 1958 - 2 BvF 1/57
   Az., BVerfGE 8, 51 (68 and 69): `Fairness dictates here that, in the
   spirit of proportional equality, the economically stronger should pay a
   higher percentage of their income as tax than the economically weaker'.

   ( [246]34 ) Under the Commission's proposal, an undertaking with a
   worldwide turnover above EUR 750 million that does not exceed the limit
   of EUR 50 million within the EU (turnover precisely EUR 50 million)
   pays exactly EUR 0 in tax. Another undertaking with a worldwide
   turnover above EUR 750 million that exceeds the exemption limit of
   EUR 50 million within the EU by EUR 50 million pays EUR 3 million in
   tax. Doubling that turnover within the EU (EUR 100 million rather than
   EUR 50 million) results in an infinitely higher tax burden.

   ( [247]35 ) See, inter alia, judgment of 19 December 2018, A-Brauerei
   ([248]C-374/17, [249]EU:C:2018:1024, paragraph [250]36).

   ( [251]36 ) Judgment of 21 December 2016, Commission v World Duty Free
   Group and Others ([252]C-20/15 P and C-21/15 P, [253]EU:C:2016:981,
   paragraph [254]58); see also, to that effect, judgments of 29 March
   2012, 3M Italia ([255]C-417/10, [256]EU:C:2012:184, paragraph [257]40);
   of 8 September 2011, Paint Graphos ([258]C-78/08 to C-80/08,
   [259]EU:C:2011:550, paragraphs [260]64 and [261]65); and of 29 April
   2004, Netherlands v Commission ([262]C-159/01, [263]EU:C:2004:246,
   paragraphs [264]42 and [265]43).

   ( [266]37 ) Judgments of 18 July 2013, P ([267]C-6/12,
   [268]EU:C:2013:525, paragraph [269]22), and of 8 September 2011, Paint
   Graphos ([270]C-78/08 to C-80/08, [271]EU:C:2011:550, paragraph [272]65
   and the case-law cited).

   ( [273]38 ) Opinion of Advocate General Bobek in Belgium v Commission
   ([274]C-270/15 P, [275]EU:C:2016:289, point [276]29).

   ( [277]39 ) Judgment of 28 June 2018, Andres (Insolvenz Heitkamp
   BauHolding) v Commission ([278]C-203/16 P, [279]EU:C:2018:505,
   paragraph [280]107).

   ( [281]40 ) As was also held by the Court in its judgments of
   19 December 2018, A-Brauerei ([282]C-374/17, [283]EU:C:2018:1024,
   paragraph [284]48 and [285]49 - objectives attributed to a particular
   tax scheme); of 26 April 2018, ANGED ([286]C-233/16,
   [287]EU:C:2018:280, paragraph [288]55 - in the light of the objectives
   pursued by the legislation); of 21 December 2016, Commission v World
   Duty Free Group and Others ([289]C-20/15 P and C-21/15 P,
   [290]EU:C:2016:981, paragraph [291]85); and of 15 November 2011,
   Commission and Spain v Government of Gibraltar and United Kingdom
   ([292]C-106/09 P and C-107/09 P, [293]EU:C:2011:732,
   paragraph [294]95 - in the light of the tax regime at issue).

   ( [295]41 ) Judgments of 3 March 2020, Tesco-Global Áruházak
   ([296]C-323/18, [297]EU:C:2020:140, paragraph [298]70), and of 3 March
   2020, Vodafone Magyarország ([299]C-75/18, [300]EU:C:2020:139,
   paragraph [301]50).

   ( [302]42 ) See my Opinions in Tesco-Global Áruházak ([303]C-323/18,
   [304]EU:C:2019:567, point [305]101); in Vodafone Magyarország
   ([306]C-75/18, [307]EU:C:2019:492, point [308]121 et seq.); and in
   Hervis Sport- és Divatkereskedelmi ([309]C-385/12, [310]EU:C:2013:531,
   point [311]61).

   ( [312]43 ) Judgments of 26 April 2018, ANGED ([313]C-236/16
   and C-237/16, [314]EU:C:2018:291, paragraph [315]40 et seq.); of
   26 April 2018, ANGED ([316]C-234/16 and C-235/16, [317]EU:C:2018:281,
   paragraph [318]45 et seq.); and of 26 April 2018, ANGED ([319]C-233/16,
   [320]EU:C:2018:280, paragraph [321]52 et seq.).

   ( [322]44 ) See expressly judgment of 8 September 2011, Paint Graphos
   ([323]C-78/08 to C-80/08, [324]EU:C:2011:550, paragraph [325]70).

   ( [326]45 ) Proposal for a Council Directive on the common system of a
   digital services tax on revenues resulting from the provision of
   certain digital services, 21 March 2018, COM(2018) 148 final.

   ( [327]46 ) See judgments of 24 January 2013, 3F v Commission
   ([328]C-646/11 P, not published, [329]EU:C:2013:36, paragraph [330]27);
   of 21 July 2011, Alcoa Trasformazioni v Commission ([331]C-194/09 P,
   [332]EU:C:2011:497, paragraph [333]60); and of 10 May 2005, Italy v
   Commission ([334]C-400/99, [335]EU:C:2005:275, paragraph [336]47).

   ( [337]47 ) Judgments of 21 December 2016, Commission v Hansestadt
   Lübeck ([338]C-524/14 P, [339]EU:C:2016:971, paragraph [340]78); and of
   21 July 2011, Alcoa Trasformazioni v Commission ([341]C-194/09 P,
   [342]EU:C:2011:497, paragraph [343]61); and judgment of the General
   Court of 9 September 2014, Hansestadt Lübeck v Commission
   ([344]T-461/12, [345]EU:T:2014:758, paragraph [346]12).

   ( [347]48 ) See Opinion of Advocate General Mengozzi in Deutsche
   Lufthansa ([348]C-284/12, [349]EU:C:2013:442, point [350]27) and my
   Opinion in Hungary v Commission ([351]C-456/18 P, [352]EU:C:2020:8,
   points [353]36 and [354]69).

   ( [355]49 ) See the circumstances in the judgment of 21 December 2016,
   Commission v Hansestadt Lübeck ([356]C-524/14 P, [357]EU:C:2016:971) -
   decision to initiate the formal investigation procedure, and,
   similarly, the situation in the judgments of 24 January 2013, 3F v
   Commission ([358]C-646/11 P, not published, [359]EU:C:2013:36,
   paragraphs [360]28 and [361]29), and of 10 May 2005, Italy v Commission
   ([362]C-400/99, [363]EU:C:2005:275, paragraph [364]47 - initiation of
   the procedure).

   ( [365]50 ) As the judgment of 21 December 2016, Commission v
   Hansestadt Lübeck ([366]C-524/14 P, [367]EU:C:2016:971,
   paragraph [368]50) shows, the fact that there has not yet been a
   judicial decision on the specific point of law is not sufficient to
   rule out a manifest error by the Commission.

   ( [369]51 ) See, to that effect, judgment of 21 November 2013, Deutsche
   Lufthansa ([370]C-284/12, [371]EU:C:2013:755, paragraph [372]35): `The
   obligation to notify and the prohibition of implementation laid down in
   Article 108(3) TFEU apply to plans which may be classified as State aid
   within the meaning of Article 107(1) TFEU'.

   ( [373]52 ) See, with regard to this particular situation, my Opinion
   in Hungary v Commission ([374]C-456/18 P, [375]EU:C:2020:8,
   point [376]32).

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