By order of 3 March 201140, the Court of Justice rejected the appeal of Centre de Coordination Carrefour SNC (‘Carrefour’) against the judgment of the General Court41, holding that it was manifestly unfounded.
The background of the case can be summarised as follows: Belgium established the fiscal regime of the so-called “coordination centres” under the Royal Decree n° 187 of 30 December 1982. By the decision of 17 February 2003, the Commission decided that the fiscal regime of the coordination centres constituted state aid that was incompatible with the common market. Consequently, the Commission decided that (i) Belgium should abolish the system, (ii) no new companies could benefit from the system, (iii) no prolongation of the system could be accorded to companies that benefited from the system at the date of the decision, and finally that (iv) the effects of the system could be maintained for the coordination centres that benefit from the system and received their approbation before 31 December 2000 until the end of the approbation, and certainly not longer than 31 December 2010. Shortly after this decision, the Belgian State together with an association of coordination centres launched an action for suspension and annulment of the 2003 Commission decision. On 26 June 2003 the President of the Court (2003 Order) suspended the 2003 Commission Decision in that it did not allow the Belgian State to prolong the approbation of companies that benefitted from the system at the moment of the notification of the measure. Following this judgment, the Belgian State prolonged the approbation of all coordination centres till 31 December 2005 (except for four coordination centres which received an approbation for an indefinite time). On 22 June 2006 (2006 Judgment) the Court partially annulled the 2003 Commission decision in so far as it did not provide for transitory measures for coordination centres of which the request for prolongation was treated at the moment of the 2003 Decision or for coordination centres of which the approbation ended at the moment of the Commission decision or shortly afterwards. At the end of 2006 the Belgian State voted on a law that prolonged with retroactive effect the approbation of the companies that benefitted from the system. This law was not notified to the Commission, but the implementation of the law was subject to its approval. In 2007 the Commission finally took a new decision (2007 Decision) in which it first of all modified the 2003 Decision stating that (i) the prolongation of the system till 31 December 2005 was allowed, (ii) for the four companies with an approbation for indefinite time, they can benefit from the system till the end of the fiscal year in which the final judgment of the Court was rendered, and (iii) finally that the law of 2006 is incompatible with the common market.
Carrefour launched an application for annulment against the 2007 Decision in that it not provided in a transitory measure. The General Court rejected this application as it held that Carrefour had no interest in bringing its action and was furthermore not individually affected by the decision. Crucial in that respect was that Carrefour no longer benefitted from the system of coordination centres from 31 December 2005. This was not the effect of a Community decision, but rather the decision of the Belgian government to prolong the approbation till 31 December 2005 (and not for an indefinite time as was possible after the 2003 Order). The fact that Carrefour did not benefit from the fiscal system of coordination centres after 31 December 2005 is thus not due to the absence of transitory measures in the 2007 Decision. Consequently, Carrefour has no interest in bringing any proceedings against the 2007 Decision as this will not change its position. As an obiter dictum, the General Court also noted that Carrefour could not base its interest in bringing the proceedings on the hypothesis that in the event the Commission decision were to be annulled, the Belgian government possibly could grant a retroactive prolongation of the system for Carrefour. The General Court stated that this is a mere possibility and is uncertain and therefore, not sufficient to justify Carrefour’s interest.
Carrefour appealed before the Court of Justice against the judgment of the General Court, invoking 5 pleas in law.
In its first plea, Carrefour invoked that the General Court contradicted itself in its motivation as it held on the one hand, Carrefour had no interest in bringing the proceedings due to lack of a valid approbation on the moment it filed its application, and on the other hand, the admissibility of the application cannot be subject to the existence of a valid approbation. The Court of Justice held that this argument was based on an incorrect reading of the judgement of the General Court. The General Court only said that Carrefour had no interest as its position would not have changed if the 2007 Decision were to have contained a transitory measure as the Belgian State on its own initiative limited the validity of the approbation to 31 December 2005. There was thus no contradiction with the statement that the fact that Carrefour did not have an approbation at the moment the appeal was lodged could be useful in determining whether it had an interest in launching an application, but the admissibility of such an application was not dependent on having such an approbation, but rather on having an interest.
Secondly, Carrefour claimed that the General Court distorted the facts. The Court of Justice recalled that if a party wants to prove that a distortion of facts has occurred this distortion must be manifestly clear from the pieces of the file without there being a need for a new appreciation of the facts and proof. According to the Court of Justice, Carrefour did not bring any evidence that could demonstrate any distortion of facts.
Thirdly, Carrefour claimed that the General Court violated the binding force of the 2006 Judgment of the Court of Justice, as that judgment allowed Carrefour to benefit from a prolongation of the fiscal system beyond 31 December 2005. The Court of Justice simply held that this plea is based on a incorrect reading of the judgment of the General Court and on the assumption that Carrefour’s inability to benefit from the fiscal system is due to the 2007 decision and not due to the decision of the Belgian State. As this last assumption was already rejected, this plea had to be rejected also.
Fourthly, Carrefour claimed that the General Court’s interpretation of the notion of “interest to act” was too strict, in so far that it stated that Carrefour should demonstrate that after a possible annulment of the Commission decision it would have been certain that the Belgian State would have prolonged the approbation of Carrefour. In respect of this plea, the Court of Justice simply noted that even if the General Court were too strict, this could not be a reason to annul the judgment of the Court as this point was only developed as an obiter dictum and thus was not the reason for the rejection of the application by the General Court.
Fifthly, Carrefour claimed that the General Court was wrong in holding that a transitory measure cannot have retroactive effect. The Court of Justice dismissed this argument as it was again based on an incorrect reading of the judgment of the General Court. Since all pleas were rejected, the Court of Justice held that the appeal was manifestly unfounded and rejected it.