World Duty Free Group and Spain v Commission (C-51/19P and C-64/19P)

The Court of Justice upheld the General Court’s finding that a Spanish tax provision allowing for the amortization of goodwill amounted to State aid. Amortization was only allowed in case of the acquisition of a foreign target (for at least 5%, held more than a year). When comparing the measure to the general tax rules covering amortization of (both financial and other) goodwill, a finding of selectivity was made as there was a difference in treatment of companies who were in a legally and factually comparable situation in light of the general rules, for which the difference between resident and non-resident targets should not have mattered. The CJ also confirmed that selectivity may arise from needing to enter into a particular transaction to be eligible for an aid scheme open to all undertakings, when comparable transactions would not suffice. The Commission’s 2011 recovery decision declaring the regime unlawful in respect of non-EU acquisitions was therefore upheld.