Kingdom of Belgium v European Commission, Application for interim measures - State aid - Tax scheme exempting excess profits of a number of multinational companies - Exemption granted on the basis of tax rulings - Decision declaring scheme to be aid incompatible with the internal market and ordering recovery of the aid - Application for suspension of operation of a measure - No urgency, Case T-131/16 R.
ORDER OF THE PRESIDENT OF THE GENERAL COURT
19 July 2016(*)
(Application for interim measures — State aid — Tax scheme exempting excess profits of a number of multinational companies — Exemption granted on the basis of tax rulings — Decision declaring scheme to be aid incompatible with the internal market and ordering recovery of the aid — Application for suspension of operation of a measure — No urgency)
In Case T-131/16 R,
Kingdom of Belgium, represented by C. Pochet and J.-C. Halleux, acting as Agents, and by M. Segura Catalán and M. Clayton, lawyers,
European Commission, represented by P.-J. Loewenthal and B. Stromsky, acting as Agents,
APPLICATION pursuant to Articles 278 and 279 TFEU for the grant of interim measures suspending the operation of Articles 2, 3 and 4 of Commission Decision C(2015) 9887 final of 11 January 2016 on the excess profit State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Background to the dispute, procedure and forms of order of the parties
1 This dispute concerns Commission Decision C(2015) 9887 final of 11 January 2016 on the excess profit State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (‘the contested decision’), the subject of which is specific legislation within Belgian tax law, namely the scheme to exempt certain profits made by Belgian companies belonging to multinational groups of companies. The essential feature of that scheme is the system for advance tax rulings in relation to excess profits (‘the excess profit tax ruling system’), which enables a company that is a member of a multinational group to make adjustments to its taxable base.
2 According to the Kingdom of Belgium, the excess profit tax ruling system is based on the arm’s length principle, which is generally applicable in international taxation and is recognised by the Model Tax Convention of the Organisation for Economic Co-operation and Development (OECD). That principle ensures that the value attached to cross-border transactions within a multinational group reflects their real economic value, in other words, the value on the terms and conditions that would have been applicable if those transactions had not been effected between related parties, so that each of the companies belonging to the same group can be considered to be a separate taxable entity.
3 The Kingdom of Belgium states that, under the exemption scheme at issue, the competent Belgian tax authority examines the situation of each company individually and issues an advance ruling establishing the terms for the application of that scheme. In such a ruling, first, the arm’s length prices applied to transactions concluded between the Belgian company and the companies with which it is associated are determined on the basis of a transfer pricing study. Once those transfer prices are applied to the transactions, the Belgian entity that is playing a central role in the multinational group will maintain, in principle, a residual profit from those transactions. Second, on the basis of a second transfer pricing study, the potential ‘excess profit’ is established. To that end, account is taken of the fact that a proportion of the residual profit derives from the added value created by the activities carried out by the Belgian entity and that another proportion of that residual profit derives from group effects, such as group synergies or economies of scale. Within the residual profit, the excess profit corresponds to the profit that a company would not have been able to achieve if it had been in a stand-alone situation. The excess profit is the profit of the Belgian entity that exceeds the arm’s length profit.
4 The Kingdom of Belgium states that only the excess profit, which, on the basis of transfer pricing studies, is not to be attributed to the Belgian operations of the Belgian taxpaying undertaking and therefore does not belong to the arm’s length profit of that company, can be taken out of the taxable base under the exemption scheme at issue. According to the Kingdom of Belgium, the remaining profit reflects the profit generated by the Belgian entity, that profit being taxed by the Belgian authorities in accordance with the provisions of Belgian tax law, whereas profits that are due to being part of a multinational group are not subject to the tax jurisdiction of Belgium.
5 In the contested decision, the European Commission concluded that the excess profit tax ruling system conferred State aid on its recipients. That scheme derogates from the general rule under Belgian tax law according to which companies resident or operating through a permanent establishment in Belgium are taxed on their total taxable profit, calculated as a starting point on the basis of their profit actually recorded. A proportion of the profit recorded by Belgian entities within multinational groups is exempted from Belgian corporate income tax, which gives rise to unequal treatment of companies that are factually and legally in a similar situation in the light of the objective pursued by the aforementioned general rule, which is to tax the profit of all companies subject to tax in Belgium.
6 In the alternative, the Commission stated, in the contested decision, that, regardless of whether the reference system could be thought to include a general rule according to which Belgian multinational group entities should not be taxed on the amount of profit exceeding ‘arm’s length’ profit, the excess profit tax ruling system constituted a misapplication of the arm’s length principle and, therefore, a derogation from that principle. That derogation consists of granting Belgian multinational group entities an exemption from taxation of a part of their arm’s length profit, which gives rise to unequal treatment of undertakings that are factually and legally in a similar situation in the light of the aforementioned objective that is pursued by the ordinary system of taxation of corporate profit in Belgium.
7 Consequently, the contested decision provides, in Article 1 thereof, that the excess profit tax ruling system constitutes aid within the meaning of Article 107(1) TFEU that is incompatible with the internal market and that was unlawfully put into effect by the Kingdom of Belgium in breach of Article 108(3) TFEU. Article 2(1) to (4) of the decision orders the Kingdom of Belgium to recover from the recipients the incompatible and unlawful aid granted, adding that the sums to be recovered are to bear interest calculated on a compound basis and that any sums unrecoverable from the recipients are to be recovered from the corporate group to which the recipient belongs. Article 3 of the decision provides that recovery is to be immediate and effective and that the Kingdom of Belgium is to ensure that the contested decision is fully implemented within four months following its notification. Article 4 of the decision requires the Kingdom of Belgium, first, to submit to the Commission, within two months following notification, inter alia, a list of beneficiaries of the aid and the total amount (principal and interest) to be recovered from each beneficiary and, second, to keep the Commission informed of the progress of national measures taken to implement the contested decision until full recovery of the aid granted.
8 In its press release of 11 January 2016 relating to the contested decision, the Commission estimated that the aid to be recovered would amount in total to around EUR 700 million and that, as far as the beneficiaries were concerned, the Belgium authorities would have to deal with around 35 multinational companies.
9 By application lodged at the Registry of the General Court on 22 March 2016, the Kingdom of Belgium brought an action for the annulment of the contested decision.
10 By a separate document, lodged at the Registry of the General Court on 26 April 2016, the Kingdom of Belgium brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
- suspend the operation of Articles 2, 3 and 4 of the contested decision until the General Court has delivered its judgment on the main action;
- order the Commission to pay the costs.
11 In its observations on the application for interim measures, which were lodged at the Registry of the General Court on 17 May 2016, the Commission contends that the President of the General Court should:
- dismiss that application;
- order the Kingdom of Belgium to pay the costs.
12 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (see order of 11 November 2013 in CSF v Commission, T-337/13 R, not published, EU:T:2013:599, paragraph 21 and the case-law cited).
13 Further, Article 156(3) of the General Court’s Rules of Procedure requires applications for interim measures to state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that interim measures must be refused if any one of them is absent (see order of 11 November 2013 in CSF v Commission, T-337/13 R, not published, EU:T:2013:599, paragraph 22 and the case-law cited).
14 In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed. Where appropriate, the judge hearing such an application must also weigh the competing interests (see order of 11 November 2013 in CSF v Commission, T-337/13 R, not published, EU:T:2013:599, paragraph 23 and the case-law cited).
15 Having regard to the material in the case file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
16 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
17 In that context, the Kingdom of Belgium complains that legal uncertainty is created by the Commission’s new approach to the definition of a Member State’s tax jurisdiction and its new definition of ‘the arm’s length principle’. Due to that legal uncertainty, the magnitude of which is unprecedented, it is highly likely that some undertakings will decide to leave Belgium or no longer invest in Belgium, which will cause irreparable damage to the Belgian economy.
18 The Kingdom of Belgium fears, moreover, that implementation of the contested decision will cause it irreparable harm, since the Belgian tax authorities will have to collect all the data from companies, revise and recalculate the tax that each company would have had to pay in the absence of the excess profit tax ruling system and to require repayment of the amount of the aid, plus interest. Those authorities will, in addition, have to contact their counterparts in other Member States and in certain third countries in order to determine whether the proportion of excess profit reported in Belgium has been or will be taxed elsewhere. Such work entails an enormous administrative burden for the administrative authority of a relatively small country with less human resources at its disposal. The Kingdom of Belgium argues that, in the event that the contested decision is annulled, it will face serious and irreparable harm due to the enormous administrative work to be invested in, first, determining the amount to be recovered on the basis of the contested decision, which is unclear, and then in repaying the amounts recovered.
19 The Kingdom of Belgium adds that, if the recovery of sums classified as State aid that is unlawful and incompatible with the internal market were to be implemented, the companies from whom that aid would have to be recovered would initiate legal proceedings. The national courts, and it may be added international arbitration courts, would accordingly be faced with extensive, time-consuming and complex litigation, brought by companies claiming compensation and damages.
20 In that context, the Kingdom of Belgium recalls that, according to the case-law, there can be grounds, in certain cases, for the condition of urgency to be relaxed where the prima facie case established is particularly serious. The judge hearing the application for interim measures has previously taken into account the excessive difficulty in demonstrating that the harm alleged is irreparable and has recognised that primary law, that is Articles 278 and 279 TFEU, prevails over any secondary legislation. There is therefore no reason why the judge hearing the application for interim measures should not apply those articles directly and order a suspension of operation if he considers ‘that circumstances so require’ or prescribe interim measures that are ‘necessary’, because of the manifest illegality of the contested measure, where that measure, for example, lacks even the appearance of legality.
21 The Commission submits, in contrast, that the requirement of urgency has not been satisfied.
22 In that regard, it must be recalled that, according to settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable harm to the party applying for those interim measures. It is for that party to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally harm of that kind (orders of 19 September 2012 in Greece v Commission, T-52/12 R, EU:T:2012:447, paragraph 36; 17 January 2013 in Slovenia v Commission, T-507/12 R, not published, EU:T:2013:25, paragraph 14; and 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraph 24).
23 As regards the evidence necessary to that end, in accordance with settled case-law, the party requesting the grant of an interim measure must submit to the judge hearing the application for interim measures specific and precise information, supported by detailed documentation, showing the situation relied on and allowing the consequences that would probably ensue, in the absence of the measure requested, to be assessed. That party is thus required to provide, with supporting documents, information capable of producing an accurate and comprehensive picture of the situation which is claimed to justify the grant of that measure (see, to that effect, order of 17 January 2013 in Slovenia v Commission, T-507/12 R, not published, EU:T:2013:25, paragraph 16 and the case-law cited).
24 Since this application is made by the Kingdom of Belgium, it must be observed that the Member States are responsible for those interests that are regarded as general interests at national level. Consequently, Member States may defend them in proceedings for interim measures and may request interim measures by asserting, inter alia, that the contested measure could seriously jeopardise the performance of their State tasks and public order. The Member States, may, moreover, invoke damage affecting a sector of their economy, in particular when the contested measure is liable to have unfavourable repercussions on the level of employment and the cost of living. On the other hand, it is not sufficient for Member States to rely on the harm which would be suffered by a limited number of undertakings when those undertakings, taken individually, do not constitute an entire sector of the national economy (see, to that effect, order of 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraph 25 and the case-law cited).
25 In this case, as regards the assertion by the Kingdom of Belgium that it is probable, if the contested decision is implemented, that some of the undertakings that have benefited from the excess profit tax ruling system will relocate outside Belgium or will decide no longer to invest in Belgium, it is clear that the Kingdom of Belgium does not claim, and a fortiori does not demonstrate, that those undertakings, the number of which the Kingdom of Belgium has not even specified, are representative of a specific sector of the Belgian economy and that the fact that they are affected by the contested decision is likely to have unfavourable repercussions on the level of employment and the cost of living in a specific industry or region of Belgium (see, to that effect and by analogy, order of 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraph 31).
26 Accordingly, the Kingdom of Belgium has failed to establish an accurate and comprehensive picture, as required by the case-law, of the economic situation that is claimed to justify urgency. That being the case, the judge hearing the application for interim measures cannot uphold the urgency that is claimed, in that he cannot be satisfied by the mere unsupported assertion of Kingdom of Belgium as to how it is feared that certain undertakings may behave. Bearing in mind that the grant of interim measures is strictly exceptional (see paragraph 12 above), such a measure can be granted only if that assertion is accompanied by information that offers an accurate and comprehensive picture of the situation concerned and if it is based on evidence (see, to that effect, order of 17 January 2013 in Slovenia v Commission, T-507/12 R, not published, EU:T:2013:25, paragraphs 18 and 19 and the case-law cited).
27 The same holds good of the assertion by the Kingdom of Belgium that its tax authorities, being those of a ‘relatively small country with less human resources at its disposal’, would be exposed to an excessive administrative burden, if they had to determine the amount of the aid to be recovered and, in the event of subsequent annulment of the contested decision, the amount of the recovered sums to be repaid. The Kingdom of Belgium has confined itself to listing alleged administrative difficulties that are wholly abstract, and fails to set out in detail how human resources available within its tax authorities are structured, fails to specify the allegedly excessive burdens to which those authorities would be exposed and fails to challenge, on the basis of specific arguments relating to taxation, recitals 205 to 211 of the contested decision, which are devoted to precisely the method of recovery of sums classified as State aid that is illegal and incompatible with the internal market.
28 Nor has the Kingdom of Belgium challenged the position of the Commission, set out in recital 202 of the contested decision, that the amounts to be recovered can be quantified without difficulty: since the excess profit exemption corresponds to a percentage of pre-tax profit applied to the Belgian group entity’s actually recorded profit, all that is needed to eliminate the selective advantage granted by the measure is the repayment of the difference between the tax due on the profit actually recorded and the tax actually paid as a result of the contested scheme, with the addition of the cumulative interest on that amount as from the moment that the aid was granted.
29 Moreover, since the Kingdom of Belgium has failed to specify the number of undertakings affected by any recovery, the judge hearing the application for interim measures can do no more than look to the figure that emerges from the annex to the contested decision, that is, some 50 undertakings, or the figure stated publically by the Commission in its press release of 11 January 2016, around 35 undertakings. For the authorities to deal with that number of recovery cases hardly seems likely to damage the proper functioning of the Belgian tax authorities (see, by analogy, order of 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraphs 48 and 49), even if those authorities are indeed compelled to undertake all the steps of revision, recalculation and contacting other authorities, complained of by the Kingdom of Belgium (see paragraph 18 above).
30 Likewise, if the Kingdom of Belgium fears that the companies from whom the aid would have to be recovered would bring legal proceedings before the courts, which would accordingly be faced with extensive, time-consuming and complex litigation, suffice it to state that the Kingdom of Belgium has failed to demonstrate that the Belgian courts would be likely to be flooded with actions challenging any recovery orders issued by the tax authorities, to such a point that the functioning of the Belgian judicial system might be seriously jeopardised. In particular, it must be noted that, since the Kingdom of Belgium has not specified the number of undertakings affected by any recovery, the judge hearing the application for interim measures must start from the premiss that the Belgian courts would be faced with some 50 actions at most (see paragraph 29 above). Dealing with that number of actions hardly seems likely to impair the proper functioning of the Belgian judicial system (see, to that effect, order of 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraphs 48 and 49).
31 To the extent that the Kingdom of Belgium refers to the order of 19 September 2012 in Greece v Commission (T-52/12 R, EU:T:2012:447), in order to support its arguments as to the risk that the functioning of its tax authorities and its judicial system would be damaged, it must be borne in mind that the recognition of urgency in the case that gave rise to that order was based on a set of wholly specific factors that were present in Greece in 2012 (‘the Greek case’).
32 In the Greek case, with respect to the risk that the Hellenic Republic would be in a position where the performance of its State tasks would be jeopardised, the President of the General Court took into consideration, inter alia, the fact that the beneficiaries of the aid scheme, namely Greek farmers, from whom the Greek authorities were to undertake to recover aid, numbered some several hundred thousand people, who represented, with their families, a significant proportion of the total population of Greece. The President of the General Court stated that such a mass recovery would have had harmful consequences for a tax authority that was called upon to devote itself to an absolute priority, namely combating tax evasion and pursuing the ‘big tax evaders’ with a view to collecting up to EUR 20 billion, a sum almost 50 times greater than the aid to be recovered in the agricultural sector, a fortiori when it was highly probable that a large proportion of the hundreds of thousands of farmers would refuse to pay the sums claimed, which would have necessitated massive intervention by the staff of the tax authorities, whose staff numbers had not however increased, with a view to enforced recovery (see, to that effect, order of 19 September 2012 in Greece v Commission, T-52/12 R, EU:T:2012:447, paragraphs 44 to 47).
33 In addition, in the Greek case, there was the risk of public order disturbances. In that context, the President of the General Court took into consideration the fact that the social climate in Greece was marked by a deterioration of confidence in the public authorities, by generalised discontent and a sense of injustice, and noted that there were more and more violent demonstrations against the draconian austerity measures adopted by the Greek public authorities, with the result that recovery of the payments at issue in the entire agricultural sector would have triggered demonstrations that might have degenerated into violence and dangerous disorder, which would have caused serious and irreparable harm that the Hellenic Republic could legitimately rely on (see, to that effect, order of 19 September 2012 in Greece v Commission, T-52/12 R, EU:T:2012:447, paragraphs 48 and 49).
34 It is obvious that the Kingdom of Belgium, with a view to establishing urgency in this case, cannot in any way plead circumstances that are comparable to those of the Greek case.
35 Last, to the extent that the Kingdom of Belgium considers that the condition relating to urgency should be relaxed where the prima facie case established is particularly serious, it must be stated that the application for interim measures, instead of pleading that there is such a prima facie case, refers to the case-law to the effect that the condition relating to a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant in support of the main action appears, prima facie, to be relevant and in any event not unfounded, in that it reveals the existence of a difficult legal issue the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out in the context of proceedings for interim measures but must be the subject of the main proceedings. Further, again in the application for interim measures, after summarising the five pleas in law put forward in support of the main action, the Kingdom of Belgium considers that the answer to the questions of law raised by those pleas is not immediately obvious and calls for a detailed examination that must be the subject of the main proceedings, claiming that the President of the General Court should ‘regard the action as not manifestly unfounded as the questions at issue are sufficiently relevant and serious to establish a prima facie case’.
36 It follows that, on the argument of the Kingdom of Belgium itself, the premiss for the claimed relaxation, namely the existence of a particularly serious prima facie case, appears to be lacking in this instance.
37 In any event, it must be recalled that a relaxation of the conditions applicable to assessing the existence of urgency has been permitted only in three areas of litigation where it is excessively difficult, if not impossible, for systemic reasons, to satisfy those conditions, as they are laid down in the Rules of Procedure and traditionally interpreted in the case-law.
38 In that context, first, reference must be made to litigation in relation to restrictive measures. In that regard, it must be observed that any application for the suspension of operation of a restrictive measure is, as a general rule, to be rejected on the ground that such a suspension could prevent those measures being fully effective in the event that the main action seeking the annulment of those measures was dismissed. Such a suspension of operation would, for example, make it possible for an entity subject to those measures to withdraw immediately all its funds deposited at the banks which are obliged to ensure that they are frozen and to empty its bank accounts before judgment is delivered on the substance of the case. Thus it would be possible to circumvent the purpose of the restrictive measures taken against it, even though interim measures requested of the judge hearing the application for interim measures must not nullify in advance the effects of the decision to be given subsequently in the main action (see orders of 14 June 2012 in Qualitest FZE v Council, C-644/11 P(R), not published, EU:C:2012:354, paragraphs 73 to 77 and the case-law cited, and 11 March 2013 in Iranian Offshore Engineering & Construction v Council, T-110/12 R, EU:T:2013:118, paragraph 34 and the case-law cited).
39 Further, it is settled case-law that the interest of a person or entity in having its funds provisionally unfrozen relates to an advantage that it could not have secured even through a judgment annulling the contested measures. Such a judgment could produce the practical effects sought by that person or that entity, namely the unfreezing of funds, only from a date after the date on which that judgment is delivered, whereas on that date, the judge hearing the application for interim measures at first instance would no longer have any jurisdiction ratione temporis and, in any event, the freezing of funds could be maintained by reason of a fresh restrictive measure, which would, within the period laid down in the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, replace the measure annulled. Consequently, the interest of the person or entity that is at issue, namely securing, through proceedings for interim relief, the provisional unfreezing of funds, cannot be protected by the judge hearing the application for interim measures (see, to that effect, order of 16 July 2015 in National Iranian Tanker Company v Council, T-207/15 R, EU:T:2015:535, paragraphs 55 to 58 and the case-law cited).
40 It was in that situation, which is specific to litigation relating to restrictive measures, that the judge hearing an application for interim measures envisaged, in very exceptional circumstances, the possibility of holding that urgency could be constituted by the overriding necessity of providing a remedy as expeditiously as possible for an illegality that was flagrant and extremely serious or applying directly Article 278 TFEU, a provision of primary law which, therefore, takes precedence over the Rules of Procedure (see, to that effect, order of 24 February 2014 in HTTS and Bateni v Council, T-45/14 R, not published, EU:T:2014:85, paragraphs 50 and 51).
41 Second, reference must be made to the litigation relating to public procurement. Where the judge hearing an application for interim measures found that the systemic effect of the case-law hitherto applied was to make it practically impossible for an unsuccessful tenderer to demonstrate that the rejection of his tender would be likely to cause him irreparable harm, the judge held that such a result could not be reconciled with the requirements that follow from the effective interim judicial protection that is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. For that reason, it is now recognised that, where an unsuccessful tenderer is able to demonstrate the existence of a particularly serious prima facie case, he cannot be required to establish that he would be likely to suffer irreparable harm, provided that he lodges his application within the required time limits (see, to that effect, order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C-35/15 P(R), EU:C:2015:275, paragraphs 30 and 57).
42 Third and last, mention must be made of the litigation relating to access to documents. As regards the protection of documents that are alleged to be confidential, the judge hearing an application for interim measures has taken care to observe that, even where it could not be established that the harm invoked was irreparable, the fact that his jurisdiction is ancillary and therefore limited, and that the procedure for interim measures is ancillary and provisional in relation to the main proceedings, precluded the possibility of his authorising the disclosure of certain individual items of information contained in those documents, when it could not be ruled out that the court hearing the substance of the case would prefer, for its part, to examine whether the documents at issue should, by reason of their very nature, be covered by a general presumption of confidentiality, a presumption which would exempt those documents from the obligation of partial disclosure. As a general rule, the judge hearing an application for interim measures, given his purely ancillary powers, cannot therefore authorise partial access, without depriving of practical effect such a judgment of the court hearing the substance of the case. However, since those considerations relating to the nature of the interim measures procedure are determinative of the final outcome of that procedure as such, they cannot be applied solely to the questions of the existence of a prima facie case and the weighing of interests, but must also enable the judge hearing the application for interim measures to apply directly, when appropriate, Articles 278 and 279 TFEU, which are provisions of primary law, which authorise an order for the suspension of operation of a measure if he considers ‘that circumstances so require’ and to prescribe interim measures that are ‘necessary’ (see, to that effect, orders of 25 July 2014 in Deza v ECHA, T-189/14 R, not published, EU:T:2014:686, paragraphs 99 to 101, 104 and 105, and 1 September 2015 in Pari Pharma v EMA, T-235/15 R, EU:T:2015:587, paragraphs 104 to 106, 109 and 110).
43 Since the instant case cannot be subsumed within any of the three areas of litigation mentioned in paragraphs 38 to 42 above, it is necessary to apply the conditions relating to a prima facie case and urgency as they have been traditionally interpreted in the case-law (see paragraph 13 above), and consequently the Kingdom of Belgium should have demonstrated the imminence of serious and irreparable harm; a prima facie case, however strong, cannot make up for the lack of urgency (see, to that effect, order of 27 February 2015 in Spain v Commission, T-826/14 R, EU:T:2015:126, paragraph 23).
44 In the light of the foregoing, the judge hearing the application for interim measures cannot but find that the Kingdom of Belgium has failed to establish that, if the requested suspension of operation of the contested decision is not granted, it would be likely to suffer serious and irreparable harm. Consequently, the condition relating to urgency is not satisfied.
45 That outcome is compatible with the weighing of the various competing interests, as part of which the judge hearing the application for interim measures must determine, inter alia, whether or not the interest of the Kingdom of Belgium in obtaining the interim measure requested prevails over the interest in the immediate application of the contested decision (see, to that effect, order of 26 June 2003 in Belgium and Forum 187 v Commission, C-182/03 R and C-217/03 R, EU:C:2003:385, paragraph 142).
46 In that regard, it must be recalled that the first subparagraph of Article 108(2) TFEU provides that, if the Commission finds that State aid is not compatible with the internal market, it is to decide that the State concerned is to abolish or alter such aid within a period of time to be determined by the Commission. It follows that the general interest in the name of which the Commission fulfils the tasks entrusted to it by Article 108(2) TFEU, in order to ensure that the functioning of the internal market is not distorted by State aid harmful to competition, is particularly important. The obligation on a Member State to abolish aid that is incompatible with the internal market is designed to re-establish the previously existing situation (see order of 20 August 2014 in Gmina Kosakowo v Commission, T-217/14 R, not published, EU:T:2014:734, paragraph 51 and the case-law cited).
47 Consequently, it has been held that, in connection with an application for suspension of operation of the obligation imposed by the Commission to repay aid paid illegally and declared to be incompatible with the internal market, the European Union interest must normally take precedence over that of the aid recipients, namely the interest in the non-enforcement of the obligation to repay that aid before judgment is given in the main proceedings. Only where the circumstances are exceptional and in the event that, in particular, the condition relating to urgency is satisfied, can the recipients of such aid obtain the grant of interim measures (see order of 20 August 2014 in Gmina Kosakowo v Commission, T-217/14 R, not published, EU:T:2014:734, paragraph 52 and the case-law cited).
48 As has been held above, the Kingdom of Belgium does not satisfy the condition relating to urgency in this case, which means that its interests must yield to those of the European Union.
49 As regards any exceptional circumstances, it must be noted that the Kingdom of Belgium does no more, in essence, than draw attention to the existence of a prima facie case and the fact that the Commission failed, over a long period, to examine the excess profits tax ruling system, but the application for interim measures does not however allude to any exceptional circumstance capable of impeding the recovery of the alleged State aid.
50 It follows from all the foregoing that the application for interim measures must be dismissed, and there is no need to examine the condition relating to a prima facie case (order of 25 October 2012 in Hassan v Council, C-168/12 P(R), not published, EU:C:2012:674, paragraph 31).
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 19 July 2016.
* Language of the case: English.
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