Judgment of the Court (Fourth Chamber) of 16 September 2021

– The Explanatory Memorandum

12 According to the explanatory memorandum to the draft law presented by the Belgian Government before the Chambre des députés (the Chamber of Deputies, Belgium), that law is intended to amend the CIR 92 in order to include explicitly the internationally accepted ‘arm’s length’ principle. Moreover, it is intended to amend the Law of 24 December 2002 in order to grant the Service des Décisions Anticipées en matière fiscale (the Ruling Commission; ‘the SDA’) the power to issue tax rulings. The arm’s length principle was introduced into Belgian tax legislation by the addition of a second paragraph to Article 185 of the CIR 92, based on the text of Article 9 of the Model Tax Convention on Income and Capital of the Organisation for Economic Co-operation and Development (OECD). The purpose of Article 185(2) of the CIR 92 is to ensure that the tax base of companies subject to taxation in Belgium may be modified by adjustments to the profit resulting from intra-group cross-border transactions, where the transfer prices applied do not reflect market mechanisms and the arm’s length principle. In addition, the concept of an ‘appropriate adjustment’ introduced by Article 185(2)(b) of the CIR 92 is justified as a means of avoiding or undoing double taxation. It is also stated that that adjustment must be carried out on a case-by-case basis in the light of the available information provided, in particular by the taxpayer, and that a correlative adjustment should be made only if the Belgian tax authorities consider both the principle and the amount of the primary adjustment made in another State to be justified.

– Article 185(2) of the CIR 92

13 Article 185(2) of the CIR 92 provides as follows:

‘… For two companies that are part of a multinational group of affiliated companies and in respect of their reciprocal cross-border relationships:

1. when two companies are, in the course of their commercial and financial relationships, linked by terms and conditions agreed upon or imposed on them which are different from those which would have been agreed upon between unaffiliated companies, the profit which – under those terms and conditions – would have been made by one of the companies but is not because of those terms and conditions, may be included in the profit of that company;

2. when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the terms and conditions agreed between the two companies had been those which would have been agreed between unaffiliated companies, the profit of the first company is adjusted in an appropriate manner.’

– Arguments of the parties

62 By the first part of its single ground of appeal, the Commission submits that the General Court misinterpreted and misapplied the first condition laid down in Article 1(d) of Regulation 2015/1589. In the Commission’s view, that interpretation led the General Court to distort recitals 94 to 110 of the decision at issue by concluding, in paragraphs 84, 90 to 120 and 125 of the judgment under appeal, that the Commission had considered that only the legislative measures referred to in recital 99 of that decision formed the basis of the scheme at issue.

63 According to the Commission, it is apparent from recitals 94 to 110 of that decision that it considered that that scheme was based on the consistent administrative practice by the Belgian tax authorities, which consisted of systematically applying Article 185(2) of the CIR 92 and doing so contra legem.

64 As regards the term ‘act’, used in Article 1(d) of Regulation 2015/1589, the Commission submits, in the first place, that, despite the differences between the different language versions of that regulation, that term can include a consistent administrative practice by the authorities of a Member State. The Commission argues that the case-law of the Court, arising from the judgment of 13 April 1994, Germany and Pleuger Worthington v Commission (C‑324/90 and C‑342/90, EU:C:1994:129, paragraphs 14 and 15 ), supports such an interpretation.

65 According to the Commission, in the judgment under appeal, the General Court used a restrictive interpretation of that term which led it to examine the excess profit exemption scheme by drawing an incorrect distinction between, on the one hand, the administrative practice constituting that scheme and, on the other, the legislative provisions on which it was based. In the Commission’s view, the General Court should have analysed whether that scheme constituted an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, in that it was based on the consistent administrative practice by the Belgian tax authorities, consisting of a systematic contra legem application of Article 185(2)(b) of the CIR 92.

66 In the second place, the Commission argues that it showed, to the requisite legal standard, in recitals 94 to 110 of the decision at issue, that the excess profit exemption scheme was based on such a consistent administrative practice. For that reason, the Commission has, on several occasions, drawn a distinction between, on the one hand, tax rulings relating to excess profit based, in accordance with that consistent administrative practice, on a systematic contra legem application of Article 185(2)(b) of the CIR 92 giving rise to a State aid scheme and, on the other hand, the tax rulings which are granted in compliance with that provision and do not give rise to any State aid.

67 In the third place, according to the Commission, the reasons set out in recitals 94 to 110 of the decision at issue must be assessed in the light of the context in which that decision was adopted, namely the Commission decision of 3 February 2015 in Case SA.37667 (2015/C) (ex 2015/NN) on the excess profit tax ruling system in Belgium – Article 185(2)(b) CIR 92 – Invitation to submit comments pursuant to Article 108(2) [TFEU] (OJ 2015 C 188, p. 24; ‘the opening decision’). In the Commission’s view, it is clear from the opening decision that the Commission has always considered that the excess profit exemption scheme was based on a consistent administrative practice consisting of the misapplication of Article 185(2)(b) of the CIR 92 and the legal rules governing the matter in question.

68 The Kingdom of Belgium submits that the first part of the single ground of appeal is unfounded.

69 Magnetrol International, supported by the interveners in the appeal, is of the opinion that, by that first part, the Commission is seeking to amend a posteriori the reasoning of the decision at issue and misreads the judgment under appeal.

70 In the alternative, those parties submit that, in order to demonstrate the existence of an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, the Commission may rely on a ‘systematic approach’ by the authorities of a Member State only where it does not identify any legal act capable of forming the basis of the scheme at issue. In those parties’ view, such an interpretation is supported by the case-law of the Court of Justice referred to in paragraphs 79 and 122 of the judgment under appeal. In the present case, recitals 97 to 99 of the decision at issue identify the legal acts which serve as a basis for the scheme at issue. Thus, the Commission cannot rely on a ‘systematic approach’ to conclude that such a scheme exists.

– Findings of the Court

71 In so far as the Commission alleges that the General Court misinterpreted the first condition laid down in Article 1(d) of Regulation 2015/1589, it is necessary to determine, in the first place, whether, as the Commission argues, a tax provision of a Member State must be regarded as being an ‘act’, within the meaning of Article 1(d) of Regulation 2015/1589, where it is the subject of a systematic contra legem application by the tax authorities of that Member State and, in the event of there being such an application, whether account should be taken of the consistent administrative practice by those authorities in identifying acts constituting the aid scheme based on that tax provision.

72 As regards, first, the scope of the term ‘act’, referred to in Article 1(d) of Regulation 2015/1589, it must be noted that, in accordance with the wording of Article 1, that term refers to any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings.

73 In that regard, it should be noted that the wording of Article 1 does not make it possible to determine whether the term ‘act’ is capable of covering a scheme characterised, according to the Commission, by a systematic contra legem application of a Member State’s tax provision by the tax authorities of that Member State as part of a consistent administrative practice. As the Commission submits, the different language versions of Article 1(d) of Regulation 2015/1589 use different terms, which, depending on the context, may or may not cover such an administrative practice.

74 According to the settled case-law of the Court, for the purposes of ensuring a uniform application and interpretation of the same text, the version of which in one EU language diverges from those in other languages, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 12 September 2019, Commission v Kolachi Raj Industrial , C‑709/17 P, EU:C:2019:717, paragraph 88 and the case-law cited).

75 Thus, as regards, secondly, the context of Article 1(d) of Regulation 2015/1589, it must be noted that the concept of ‘aid scheme’ differs from the concept of ‘individual aid’ referred to in Article 1(e) of that regulation.

76 Unlike individual aid, which concerns a State aid measure requiring individual examination in the light of the criteria referred to in Article 107(1) TFEU, use of the concept of an ‘aid scheme’ enables the Commission to examine, in the light of that provision, a set of individual grants of aid to undertakings on the basis of a common provision which constitutes, in principle, the legal basis for it.

77 In that regard, the General Court was entitled to point out in paragraph 78 of the judgment under appeal that, in the case of an aid scheme, the Commission may confine itself to examining its characteristics in order to assess, in the grounds of the decision at issue, whether, by reason of the arrangements provided for under the scheme, the latter gives an appreciable advantage to beneficiaries in relation to their competitors and is likely to benefit in particular undertakings engaged in trade between Member States. Thus, in a decision which concerns such a scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned.

78 It follows that the term ‘act’ in Article 1(d) of Regulation 2015/1589 refers to the measures constituting an aid scheme from which it is possible to identify the essential characteristics necessary for that act to be classified as a State aid measure, for the purposes of Article 107(1) TFEU.

79 Although, as a general rule, that term may refer to the measures which form the legal basis of the aid scheme, it cannot be ruled out, as the General Court has, moreover, pointed out, that that term may, in certain circumstances, also refer to a consistent administrative practice by the authorities of a Member State, where that practice reveals a ‘systematic approach’, the characteristics of which satisfy the requirements laid down in Article 1(d) of Regulation 2015/1589.

80 In that regard, in paragraph 79 of the judgment under appeal, the General Court rightly referred to paragraphs 14 and 15 of the judgment of 13 April 1994, Germany and Pleuger Worthington v Commission (C‑324/90 and C‑342/90, EU:C:1994:129 ), in order to state that the Court of Justice has held that, in examining an aid scheme, where no legal act establishing that scheme is identified, the Commission may rely on a set of circumstances which taken as a whole indicate the de facto existence of an aid scheme.

81 Contrary to what is argued in particular by Magnetrol International, supported in that regard by the interveners in the appeal, it does not in any way follow from that judgment of the Court of Justice that the possibility for the Commission to detect the de facto existence of an aid scheme is limited to a situation in which there is no legal provision forming the basis of that scheme. On the contrary, the guidance from that judgment of the Court supports the conclusion that, a fortiori, there is such a possibility where the aid scheme results, as the Commission claims in the present case, from the systematic contra legem application of a tax provision of a Member State by the tax authorities of that Member State in the context of a consistent administrative practice.

82 The taking into account of such an administrative practice, in the context of determining the ‘act’ which constitutes an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, makes it possible to determine the true scope of that tax provision, which could not otherwise be assessed on the basis of that provision alone.

83 Thirdly, such an interpretation of the term ‘act’ is supported by the objective pursued by Regulation 2015/1589, which seeks to lay down the detailed rules for the monitoring of State aid laid down in Article 108 TFEU.

84 The effectiveness of the rules on State aid would be considerably reduced if the term ‘act’, within the meaning of Article 1(d) of Regulation 2015/1589, were limited to referring to the formal measures constituting an aid scheme.

85 First, it must be noted that the scope of and detailed rules relating to those checks would, in such a case, necessarily depend on the form which the Member States give to State aid measures. Secondly, as the Commission submits, some of those aid measures, which are based on a contra legem application of a provision of national law, would necessarily be excluded from the concept of an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, even though a set of circumstances indicates the de facto existence of such a scheme.

86 Accordingly, the Commission may conclude that an aid scheme exists where it is able to demonstrate, to the requisite legal standard, that that scheme is based on the application of a provision of a Member State, in accordance with a ‘systematic approach’ by the authorities of that Member State, and that the characteristics of that approach satisfy the requirements laid down in Article 1(d) of Regulation 2015/1589.

87 In the second place, it is necessary to determine whether, as the Commission submits, the General Court misapplied the term ‘act’, referred to in Article 1(d) of Regulation 2015/1589, and distorted the decision at issue by holding that only the acts listed in recital 99 of the decision at issue formed the basis of the scheme at issue, as identified by the Commission.

88 In that regard, it should be noted that, in paragraph 80 of the judgment under appeal, the General Court examined, first of all, the acts listed in recitals 97 to 99 of the decision at issue. It thus noted that the acts in recital 99 of that decision, namely both Article 185(2)(b) of the CIR 92 and the explanatory memorandum to the Law of 21 June 2004, the Circular of 4 July 2006 and the replies given by the Minister for Finance to parliamentary questions on the application of that provision by the Belgian tax authorities, constituted the acts on the basis of which the excess profit exemption at issue was granted.

89 In paragraphs 81 and 82 of the judgment under appeal, the General Court noted that the Commission’s reasoning was somewhat ambivalent since the Commission did recognise that neither Article 185(2)(b) of the CIR 92 nor, indeed, any other provision of the CIR 92, required that excess profit exemption.

90 The General Court nevertheless held, in paragraph 83 of the judgment under appeal, that, following an overall analysis of the decision at issue, it had to be held that the basis of the scheme at issue was Article 185(2)(b) of the CIR 92, as applied by the Belgian tax authorities, and that such an application could be deduced from the acts referred to in paragraph 88 of the present judgment. In paragraphs 84 to 88 of the judgment under appeal, the General Court concluded, in essence, that the examination of whether the conditions laid down in Article 1(d) of Regulation 2015/1589 were satisfied therefore had to be carried out in the light of the content of those acts.

91 Thus, in paragraphs 90 to 98 of the judgment under appeal, the General Court went on to analyse, inter alia, whether the key facts of the scheme at issue, which the Commission identified in recital 102 of the decision at issue, were apparent from the acts listed in recitals 97 to 99 of that decision.

92 In that regard, in paragraph 92 of the judgment under appeal, the General Court noted, at the outset, that, in the light of the analysis in recitals 101 and 139 of the decision at issue, those key facts were not apparent from those acts, but, rather, from the sample of tax rulings analysed by the Commission. In paragraph 93 of that judgment, while acknowledging that some of those key facts did indeed emerge from those acts, it nevertheless considered that that was not the case for all of those key facts and, in particular, for the two-step method of calculating the excess profit covered by the exemption at issue, and for the condition relating to job creation, or the centralisation or increase of activities in Belgium.

93 That reasoning is vitiated by errors of law.

94 As pointed out in paragraph 90 of the present judgment, although the General Court found that the legal basis of the scheme at issue resulted not only from Article 185(2)(b) of the CIR 92, but from the application of that provision by the Belgian tax authorities, it did not, however, draw all the appropriate conclusions from that finding. In particular, it did not take into account the recitals of the decision at issue from which it was clear that the Commission inferred that application, not only from the acts referred to in recital 99 of that decision, but also from a systematic approach on the part of those authorities that it found on the basis of the analysis of a sample of tax rulings which it examined.

95 Thus, in the context of the overall reading of the decision at issue in paragraph 83 of the judgment under appeal, the General Court should have taken account of the considerations set out in recitals 100 to 108 and 110 of that decision, from which it is apparent, in essence, that the Commission considered that one of the essential characteristics of the scheme at issue was that those authorities systematically issued decisions granting the excess profit exemption under the conditions listed in recital 102 of that decision.

96 In that context, as is apparent in particular from paragraph 98 of the judgment under appeal, the General Court, however, relied on the incorrect premiss that the fact that certain key facts of the scheme at issue were not apparent from the acts set out in recital 99 of the decision at issue, but from the tax rulings themselves, meant that those acts necessarily had to be the subject of further implementing measures.

97 Consequently, by limiting its analysis of the conditions of Article 1(d) of Regulation 2015/1589 to only the acts referred to in recital 99 of the decision at issue, the General Court misapplied the term ‘act’ in Article 1.

98 That error led it, first, to rule out, in principle, the possibility that an ‘aid scheme’ within the meaning of Article 1, may, as noted in paragraphs 80 and 86 of the present judgment, be based on a set of circumstances indicating its de facto existence and, secondly, to misread that decision as regards the examination of the first of those conditions.

99 In the light of all the foregoing considerations, it must be concluded that the first part of the single ground of appeal is well founded.

– Arguments of the parties

100 By the second part of its single ground of appeal, the Commission submits that the General Court misinterpreted the second condition laid down in Article 1(d) of Regulation 2015/1589 and distorted recitals 100 to 108 of the decision at issue by concluding, in paragraphs 94, 96, 98, 103 to 113, 119, 120 and 129 to 133 of the judgment under appeal, that the grant of the excess profit exemption required the adoption of further implementing measures.

101 The General Court merely reiterated the assertion that, if the key facts of the scheme at issue listed in recital 102 of the decision at issue were not set out in the legislative acts referred to in recital 99 of that decision, they would necessarily have to be the subject of further implementing measures. According to the Commission, the General Court did not examine whether, as regards the excess profit exemption, the Belgian tax authorities were in fact in a position to influence the amount of excess profit exemptions, the key facts of the scheme at issue and the conditions for that exemption to be granted in individual cases. In addition, the General Court confused the discretion enjoyed by those authorities to verify compliance with the conditions for the grant of the excess profit exemption and the ability of those authorities to influence the amount of that exemption, the key facts of the scheme at issue and the conditions for that exemption to be granted in individual cases. If the General Court had correctly interpreted and applied the concept of ‘further implementing measures’, it would have had to conclude that those authorities were not in a position to influence those factors.

102 The Kingdom of Belgium takes the view that there is no error in law in the General Court’s reasoning relating to the second condition laid down in Article 1(d) of Regulation 2015/1589.

103 Magnetrol International, supported by the interveners in the appeal, argues, in essence, that, in order to conclude that there was an aid scheme, the Commission should have demonstrated in the decision at issue, in the first place, that the acts listed in recitals 97 to 99 of that decision imposed calculation methods that the Belgian tax authorities had to apply and, in the second place, that the amount of the excess profit exemption in each individual case could be established using those methods. In the third place, as regards the conditions for the granting of the aid, the Commission should have demonstrated, first, that those acts laid down the conditions under which the Belgian tax authorities could accept individual aid applications and, secondly, that it was possible to decide, on the basis of those conditions, whether the transaction proposed by the applicant for the tax ruling satisfied the ‘new situation’ condition.

– Findings of the Court

104 The second part of the single ground of appeal concerns the second condition for defining an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, namely that no ‘further implementing measures’ are required for individual aid to be granted on the basis of the act constituting such a scheme.

105 As the General Court correctly pointed out in paragraph 99 of the judgment under appeal, referring in that regard to recital 100 of the decision at issue, the existence of further implementing measures entails a degree of discretion on the part of the tax authority adopting the measures in question, allowing it to influence the amount of the aid, its characteristics or the conditions under which that aid is granted. By contrast, the mere technical application of the act providing for the grant of the aid in question does not constitute a ‘further implementing measure’ within the meaning of Article 1(d) of Regulation 2015/1589.

106 It follows that the question of whether ‘further implementing measures’ are necessary for the grant of individual aid under an aid scheme is intrinsically linked to the issue of determining the ‘act’, within the meaning of Article 1(d) of Regulation 2015/1589, on which that scheme is based. It is in the light of that act that it must be determined whether the grant of individual aid is conditional on the adoption of such measures or whether, on the contrary, that grant may be made on the basis of that act alone.

107 As the Advocate General noted in point 100 of her Opinion, the error of law identified in paragraphs 97 and 98 of the present judgment therefore necessarily affected the General Court’s assessment of whether the excess profit exemption was, in the present case, granted without there being any need to adopt further implementing measures.

108 First, as noted in paragraph 96 of the present judgment, the General Court relied on the incorrect premiss that the fact that certain key facts of the scheme at issue were not apparent from the acts set out in recital 99 of the decision at issue, but had been inferred from the tax rulings themselves, meant that those acts necessarily had to be the subject of further implementing measures.

109 Second, in the context of the examination, carried out in paragraphs 103 to 113 of the judgment under appeal, of whether, when adopting the tax rulings on the excess profit exemption, the Belgian tax authorities had a discretion enabling them to influence the amount of that exemption, the key facts of the scheme at issue and conditions under which that exemption was granted, the General Court merely referred to the acts listed in recital 99 of the decision at issue in order to conclude, in essence, that those acts were limited to defining, in a general manner, the Belgian tax authorities’ position in respect of that exemption.

110 The General Court inferred from this that, in the absence of other factors limiting that administration’s decision-making power, when adopting those tax rulings, the Belgian tax authorities necessarily had discretion, therefore it could not be concluded that those authorities had carried out a technical application of the regulatory framework, but that, on the contrary, they had carried out a ‘case-by-case’ examination of each request.

111 In the context of that examination, however, the General Court failed to take account of the fact that, as noted in paragraph 95 of the present judgment, one of the essential characteristics of the scheme at issue, as identified by the Commission in the decision at issue, lay in the fact that the Belgian tax authorities had systematically granted the excess profit exemption when the conditions listed in recital 102 of that decision were satisfied.

112 Contrary to what the General Court held, the identification of such a systematic practice was capable of constituting a relevant factor in the assessment of all the circumstances that could indicate the de facto existence of an aid scheme, making it possible, where applicable, to show that those tax authorities did not in fact have any discretion in the application of Article 185(2)(b) of the CIR 92 and that, consequently, no ‘further implementing measure’ within the meaning of Article 1(d) of Regulation 2015/1589, was necessary when granting the excess profit exemption at issue.

113 Therefore, as the Commission submits, in basing its conclusion relating to the second condition laid down in Article 1(d) of that regulation on an incorrect premiss, the General Court erred in law.

114 That finding cannot be called into question by the considerations set out in paragraphs 106 and 107 of the judgment under appeal. In those paragraphs, the General Court relied on the finding that the scheme at issue did not cover all the tax rulings issued on the basis of Article 185(2)(b) of the CIR 92, but only those rulings which granted downwards adjustments without the administration having verified whether the profit concerned had been included in the profit of another company of the group established in another jurisdiction, whereas the tax rulings which granted a downwards adjustment corresponding to the upward adjustment of the taxable profit of another company of the group established in another jurisdiction did not form part of that scheme. According to the General Court, in so far as, on the basis of that provision, the Belgian tax authorities could adopt both decisions which, in the Commission’s view, granted State aid, and decisions which did not grant such aid, the role of those tax authorities was not limited to the technical application of the scheme at issue.

115 As noted in paragraph 94 of the present judgment, the Commission considered that it was the contra legem application of Article 185(2)(b) of the CIR 92 in the context of a consistent administrative practice on the part of the Belgian tax authorities which formed the basis of the scheme at issue. That finding cannot be called into question by the mere fact that those tax authorities also applied that provision in situations which did actually fall within its scope.

116 Similarly, the existence of a preliminary phase in the procedure for obtaining an tax ruling on the excess profit exemption, referred to in paragraph 112 of the judgment under appeal, cannot constitute evidence that the Belgian tax authorities necessarily had discretion in the excess profit exemption scheme. That discretion must be assessed solely in the light of the tax rulings issued under that scheme, so that the situations which did not give rise to the adoption of such a decision are irrelevant in that regard.

117 In the light of all the foregoing considerations, it must be concluded that the second part of the single ground of appeal is well founded.

– Arguments of the parties

118 By the third part of its single ground of appeal, the Commission submits that the General Court misinterpreted the third condition laid down in Article 1(d) of Regulation 2015/1589 and distorted recitals 66, 102, 103, 109, 139 and 140 of the decision at issue by concluding, in paragraphs 114 to 119 of the judgment under appeal, that the beneficiaries of the excess profit exemption were not defined ‘in a general and abstract manner’ by the acts constituting the basis of that scheme. In the Commission’s view, if the General Court had taken due account of the consistent administrative practice by the Belgian tax authorities relating to that exemption, it would have reached the opposite conclusion.

119 The Kingdom of Belgium and Magnetrol International, supported by the interveners in the appeal, dispute that line of argument.

– Findings of the Court

120 The third part of the single ground of appeal concerns the third condition defining an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, namely that the beneficiaries of such a scheme are defined ‘in a general and abstract manner’ in the act which forms the basis of that scheme.

121 In that regard, it follows from the links between the three conditions for classifying a measure as an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, that the question of whether the third of those conditions is satisfied is intrinsically linked to the first two of those conditions, relating to the existence of an ‘act’ and the absence of ‘further implementing measures’.

122 Accordingly, the errors of law made by the General Court, which have been pointed out in paragraphs 97, 98 and 113 of the present judgment and which concern the first two of those conditions, vitiated the General Court’s assessment relating to the definition of the beneficiaries of the excess profit exemption.

123 In paragraphs 115 to 119 of the judgment under appeal, the General Court, while acknowledging that Article 185(2)(b) of the CIR 92 covers a general and abstract category of entities, essentially relied on an analysis of the acts referred to in recital 99 of the decision at issue in order to conclude that the beneficiaries of the scheme at issue were not defined ‘in a general and abstract manner’ by those acts, with the result that such a definition necessarily had to be carried out by means of further implementing measures.

124 In those circumstances, it must be concluded that the third part of the single ground of appeal is well founded.

125 In the light of all the foregoing considerations, and without it being necessary to examine the fourth part of the single ground of appeal, it must be concluded that, by holding, in particular in paragraph 120 of the judgment under appeal, that the Commission had wrongly concluded that the excess profit exemption scheme, as defined in the decision at issue, constituted an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, the General Court made several errors of law.

– Arguments of the parties

128 In its arguments relating to the first three parts of the single ground of appeal, the Commission put forward specific arguments seeking to challenge the General Court’s reasoning in paragraphs 121 to 134 of the judgment under appeal, at the end of which the General Court held that the Commission had not demonstrated to the requisite legal standard the existence of a ‘systematic approach’ on the part of the Belgian tax authorities when granting the excess profit exemption.

129 In the first place, the Commission submits that, contrary to what the General Court held in paragraphs 127 and 128 of the judgment under appeal, the Commission sufficiently set out the factors which led it to conclude that there was such a ‘systematic approach’.

130 As regards, first of all, the choice of sample of the 22 tax rulings on the basis of which the Commission inferred the existence of a consistent administrative practice, the Commission accepts that that choice is not apparent from recitals 94 to 110 of the decision at issue. However, in the Commission’s view, the General Court failed to take into account recital 3 of that decision, which refers to the Commission’s request for information made to the Kingdom of Belgium in respect of the tax rulings issued in 2004, 2007, 2010 and 2013. According to the Commission, those decisions are none other than the 22 tax rulings forming the sample from which it inferred the existence of a consistent administrative practice.

131 Next, as regards the representativeness of that sample, the Commission states that, first, the tax rulings were selected from four of the nine years in which the scheme at issue applied. Secondly, the years chosen are three years apart, covering the beginning, middle and end of the period during which the Belgian tax authorities issued such tax rulings. Thirdly, the 22 tax rulings represent a third of all the rulings issued during that nine-year period and, fourthly, those 22 rulings cover a third of all the beneficiaries of the scheme at issue, which necessarily means that the sample was representative and that no specific explanation was necessary in that regard. In any event, the Kingdom of Belgium never disputed the Commission’s provisional conclusions in the context of the opening decision and did not submit any tax ruling demonstrating that the key facts of the scheme at issue were not the result of a consistent administrative practice.

132 Furthermore, the Commission considers that it was not necessary for it to describe the individual rulings in the decision at issue, after concluding, on the basis of its examination of the 22 tax rulings, that those rulings formed part of a consistent administrative practice. By contrast, in the Commission’s view, it is for the Kingdom of Belgium and the beneficiaries to challenge its conclusion that the excess profit exemption was granted under an aid scheme, which they have not succeeded in doing.

133 Finally, as regards the six tax rulings described in recitals 62 to 64 and in footnote 80 to the decision at issue, recital 61 of the decision at issue states that the three examples given in those recitals merely illustrate the tax rulings issued in connection with the implementation of the scheme at issue by the Belgian tax authorities.

134 In the second place, according to the Commission, the distortion of recitals 94 to 110 of the decision at issue led the General Court to err in law in finding, in paragraphs 127 and 128 of the judgment under appeal, that the Commission had not demonstrated the existence of a systematic approach.

135 The Kingdom of Belgium and Magnetrol International, supported by the interveners in the appeal, dispute that line of argument.

– Findings of the Court

136 The Commission complains that the General Court erred in finding that the Commission had not been able to demonstrate the existence of a ‘systematic approach’ satisfying the requirements laid down in Article 1(d) of Regulation 2015/1589.

137 In that regard, in the first place, it should be noted that the General Court held, in essence, in paragraph 125 of the judgment under appeal, that such a ‘systematic approach’ could not form the very basis of the scheme at issue, on the ground that it was not the basis relied on in the decision at issue, in particular, in recital 99 of that decision.

138 In view of the error of law stated in paragraphs 97 and 98 of the present judgment, that ground is also incorrect in law.

139 In the second place, the General Court held, in paragraph 126 of the judgment under appeal, that, even if the key facts of the scheme at issue were apparent from a ‘systematic approach’ identified from the sample of tax rulings analysed by the Commission, the latter had not been able to demonstrate the existence of such an approach.

140 First of all, in paragraph 127 of the judgment under appeal, while noting that that sample consisted of 22 out of the 66 tax rulings concerned, the General Court held that the Commission had not explained in the decision at issue the choice of that sample or why it had to be regarded as representative.

141 As the Commission submits, in essence, as regards the choice of sample of the tax rulings which it analysed, it follows, however, from an overall reading of the recitals of the decision at issue and, in particular, from a combined reading of recitals 3 and 59 of that decision, that that sample consisted of tax rulings issued in 2005 (no ruling having been issued in 2004), 2007, 2010 and 2013 in order to cover the rulings issued at the beginning, in the middle, and at the end of the period of the scheme at issue.

142 As regards the representativeness of that sample, as the Advocate General pointed out, in essence, in point 86 of her Opinion, it is clear from the choice of 22 out of the total of 66 tax rulings issued in respect of the scheme at issue that that sample represents a third of those rulings.

143 In that regard, it must be noted that such a proportion of tax rulings, selected in a weighted manner from among all the rulings issued in respect of the excess profit exemption for the period under consideration, is, by its nature, capable of representing a ‘systematic approach’ taken by the Belgian tax authorities. Precisely because of the ‘systematic’ nature of such a practice, the Commission could reasonably assume that, in the absence of proof to the contrary, the elements identified in the sample of tax rulings which it examined would necessarily be found in all of the tax rulings issued in respect of the excess profit exemption.

144 In those circumstances, the General Court was not entitled to find that the Commission had not explained in the decision at issue the choice of that sample and the elements in respect of which it had to be regarded as representative.

145 Moreover, that conclusion is not called into question by the finding made in paragraph 128 of the judgment under appeal that the Commission did not explain the choice of the six tax rulings referred to in recitals 62 to 64 of the decision at issue. As is apparent from recital 61 of that decision and as the Commission submits, those six rulings serve only to illustrate the way in which the excess profit exemption was granted by the Belgian tax authorities, therefore those rulings cannot be taken into account for the purposes of determining whether the Commission demonstrated to the requisite legal standard the existence of a ‘systematic approach’ in the decision-making practice of the Belgian tax authorities.

146 Next, in paragraph 129 of the judgment under appeal, the General Court relied on the considerations set out in paragraphs 103 to 112 of the judgment under appeal, relating to the existence of a discretion on the part of the Belgian tax authorities and the need for further implementing measures. According to the General Court, those considerations in themselves undermine the existence of the ‘systematic approach’ alleged by the Commission.

147 In so far as that conclusion is based on the incorrect premiss that the only acts referred to in recital 99 of the decision at issue constituted the basis of the scheme at issue, it must be held that, for the same reasons as those set out in paragraphs 97, 98 and 113 of the present judgment, the conclusion in paragraph 129 of the judgment under appeal is incorrect in law.

148 Finally, in paragraphs 131 to 133 of the judgment under appeal, the General Court noted that, in any event, the tax rulings which formed the sample examined by the Commission did not all concern situations in which a ‘central entrepreneur’ structure had been put in place by the Belgian entity in question and that the two-step method for calculating the excess profit identified by the Commission had not been systematically followed.

149 However, as the Commission submits, the findings made by the General Court in those paragraphs are based on a distortion of recital 102 of the decision at issue, in which the Commission listed the key facts of the scheme at issue which it identified by analysing the sample of the 22 tax rulings representing the consistent administrative practice of the Belgian tax authorities.

150 Thus, it is apparent from recital 102 that, contrary to the findings made by the General Court in paragraph 132 of the judgment under appeal, the Commission did not consider that the relocation of a ‘central entrepreneur’ in Belgium was the only condition for obtaining an excess profit exemption, but that such a situation constituted, on the contrary, a mere example of a more general condition relating to the existence of a new situation which had not yet produced effects from a tax perspective.

151 As regards the two-step calculation method referred to in paragraph 133 of the judgment under appeal, it is apparent from the third indent of recital 102 of the decision at issue that, contrary to the General Court’s findings, the Commission did not rely on the application of such a method as being an essential element of the scheme at issue, but, in essence, on the fact that the amount exempt under the excess profit exemption systematically corresponded to the difference between the profit actually recorded by the beneficiary and a hypothetical profit generated if the beneficiary had operated independently of the group, irrespective of the method used to lead to that finding.

152 Consequently, it must be held that paragraphs 130 to 133 of the judgment under appeal cannot form the basis of the General Court’s conclusion that the Commission had not established that the excess profit exemption was granted according to a ‘systematic approach’.

153 It follows from all of the foregoing grounds that the General Court’s conclusion that the Commission had not demonstrated the existence of a ‘systematic approach’ is incorrect in law.

154 Accordingly, without it being necessary to examine the fourth part of the single ground of appeal, it must be concluded that that ground of appeal is well founded.

155 In those circumstances, without it being necessary to examine the cross-appeal, the judgment under appeal must be set aside.