A selective measure should be determined on the basis of its effects, not on the basis of the legally defined regulatory techniques.
A tax measure is selective in the meaning of Article 107(1) TFEU when it basically deviates from the normal tax system. In the case of a tax reduction or a tax exemption the normal system is fairly easy to define. It is the rate from which the reduction is derived or the tax from which the exemption is drawn. That is why there are very few judgments on how to determine the normal or reference tax system. A notable exception is case C‑106/09 P, Commission v Gibraltar.
Yet, the determination of the reference framework is of paramount importance. See, for example, the landmark judgments in cases C-452/10 P, BNP Paribas v Commission, paragraph 66; C-88/03, Portugal v Commission, paragraph 56; C-143/99, Adria-Wien Pipeline, paragraph 41. Nonetheless, even in these cases, it seems that the Court did not say more than that the reference system was the one identified by the Commission, that it was the normal system applicable in a region and that it was the prevailing tax measure, respectively.
The cases currently pending before the General Court concerning advance tax rulings (e.g. Startbucks, Fiat, etc.)] should hopefully provide further guidance because, despite the richness and complexity of the cases, a common element in all of them is how to define correctly the reference tax system; is it made up of the rules that apply to all companies or the rules that apply to companies seeking tax rulings?
Point 133 of the Commission’s Notice on the Notion of State Aid defines the reference system as follows: “The reference system is composed of a consistent set of rules that generally apply — on the basis of objective criteria — to all undertakings falling within its scope as defined by its objective.”
This definition is not of much help when more than one set of rules may be applicable (one, of course, may argue that selectivity may exist in relation to several rules) leading to conflicting conclusions.
Indeed, the Court of Justice in its judgments of 28 June 2018 in cases C‑203/16 P, Heitkamp BauHolding v Commission, C-219/16 P, Lowell Financial Services v Commission, C-209/16 P, Germany v Commission and C-208/16 P, Germany v Commission, examined a situation in which two sets of rules seemed capable of constituting the reference system. In this article I analyse the reasoning of the Court by reference only in the Heitkamp BauHolding judgment, as all four judgments deal with the same tax measure.
Heitkamp Bauholding (HBH) was a German company that was being liquidated. Dirk Andres, the appointed liquidator, appealed against the judgment of the General Court in case T-287/11, Heitkamp BauHolding v Commission. The General Court had rejected as unfounded HBH’s action for the annulment of Commission decision 2011/527 concerning a German exemption for the carry-forward of losses of companies in difficulty that were undergoing restructuring. A similar judgment on an appeal brought by another company, GFKL Financial Services, against the same Commission decision (case T‑620/11, GFKL Financial Services v Commission) was reviewed here on 23 February 2016 (http://stateaidhub.eu/blogs/stateaiduncovered/post/5315). Lowell Financial Services is the successor to GFKL Financial Services.
According to the German tax law at the time, losses could be carried forward to later tax years. Consequently, remaining losses could be subtracted from the taxable income of the following years [this is the “loss carry-forward” rule that, in fact, exists in many tax systems].
However, in Germany, the possibility of carrying losses forward led to the acquisition, for the sole purpose of tax savings, of undertakings which had ceased trading, but whose losses could still be carried forward. In order to prevent such transactions, Germany adjusted the relevant law and permitted the possibility of carrying forward losses only for companies legally and economically identical to those which incurred the losses.
Subsequently, the relevant law was revised again so that the possibility of carrying forward losses was not allowed when 25% or more of the shares in a company were acquired. However, the carrying forward of losses was allowed when the acquired company was in difficulty and the purpose of the acquisition was to restructure the company. This was the measure that was assessed by the Commission in decision 2011/527.
The Commission considered the special treatment of acquisition of companies in difficulty to be an exemption from the inapplicability of the carry forward rule and to constitute State aid. It rejected Germany’s argument that the exemption encouraged company restructuring on the grounds that that was an objective which was extrinsic to the logic of the tax system. Although the Commission found that in general the aid was incompatible with the internal market, for some beneficiary companies it could be compliant with certain State aid rules.
HBH would have benefited from the exemption but the negative Commission decision led the German tax office to refuse it the tax credit it had claimed.
First, the Court of Justice examined whether the action brought by HBH was admissible. The Commission contended that the General Court erred in law in finding HBH’s appeal admissible.
The Court of Justice reiterated that under Article 263 TFEU, any natural or legal person may institute proceedings against an EU act addressed to that person or which is of direct and individual concern to it.
Then the Court noted that the Commission decision was addressed to Germany. However, “(41) […] persons other than those to whom a decision is addressed may claim to be individually concerned only if the decision affects them by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons and if, by virtue of those factors, it distinguishes them individually in the same way as the person addressed”.
But, “(42) the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it”. “(43) An undertaking cannot, as a general rule, contest a decision of the Commission which prohibits a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme.”
By contrast, “(44) […] where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders”. “(45) Thus, the actual recipients of individual aid granted under an aid scheme of which the Commission has ordered the recovery are, accordingly, individually concerned”. (51) […] In order to establish that an applicant is individually concerned, […], by a Commission decision declaring an aid scheme incompatible with the internal market, the relevant criterion is whether the applicant is affected by that decision by reason of certain attributes which are peculiar to it or a factual situation which differentiates it from all other persons, which the General Court also correctly recalled in paragraph 76 of the judgment under appeal.”
In addition, in its judgment the General Court noted in paragraph 77 that HBH had acquired a right to the tax credit which was later nullified by the Commission decision.
Consequently, the Court of Justice rejected the Commission’s request to declare the appeal inadmissible.
HBH argued that the General Court incorrectly determined the reference framework within which the selectivity of the carry forward rule was examined.
The Court of Justice began its analysis by identifying the benchmark against which selectivity can be determined. “(83) In order to assess (selectivity), it is necessary to determine whether, under a particular legal regime, the national measure in question is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which are accordingly subject to different treatment that can, in essence, be classified as discriminatory”.
“(84) Further, where the measure at issue is conceived as an aid scheme and not as individual aid, it is for the Commission to establish that that measure, although it confers an advantage of general application, confers the benefit of that advantage exclusively on certain undertakings or certain business sectors”.
“(85) A tax advantage resulting from a general measure applicable without distinction to all economic operators does not constitute aid within the meaning of that provision”.
“(86) In that context, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the ordinary or ‘normal’ tax system applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that ordinary system, in so far as it differentiates between operators who, in the light of the objective pursued by that ordinary tax system, are in a comparable factual and legal situation”.
“(87) The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned, […], is able to demonstrate that that differentiation is justified since it flows from the nature or general structure of the system of which the measures form part”.
“(88) The examination of the selectivity condition therefore implies, in principle, the determination, first, of the reference framework within which the measure concerned falls, that determination being of greater importance in the case of tax measures, since the very existence of an advantage may be established only when compared with ‘normal’ taxation”.
“(89) Thus, the determination of the set of undertakings which are in a comparable factual and legal situation depends on the prior definition of the legal regime in the light of whose objective it is necessary, where applicable, to examine whether the factual and legal situation of the undertakings favoured by the measure in question is comparable with that of those which are not”.
Until this point the reasoning of the Court is clear. But then it jumps from analysing selective “measures” to analysing selective “systems”. “(90) However, the classification of a tax system as ‘selective’ is not conditional upon that system being designed in such a way that undertakings which might enjoy a selective advantage are, in general, subject to the same tax burden as other undertakings but benefit from derogating provisions, so that the selective advantage may be identified as being the difference between the normal tax burden and that borne by those former undertakings”. At this point the Court cites case C‑106/09 P, Commission v Gibraltar which concerned the first ever instance of a whole tax system that was assessed by the Commission and was found, in a decision that was eventually endorsed by the Court of Justice, to be selective although it appeared to treat all companies in the same way.
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The primary reason for which the whole Gibraltar system was selective was because what was taxed was the local presence of companies in terms of office space and personnel, which necessarily entailed that offshore companies avoided taxation altogether, rather than being explicitly exempted. The method of taxation was contrary to the objective of the system which was to tax all companies established in Gibraltar. The Court memorably ruled in that case that the avoidance of taxes by offshore companies was not a “random consequence” of the tax system but an “inevitable consequence” because it “excluded from the outset” any offshore company (paragraphs 83, 106, and 103, respectively, of the Gibraltar judgment). In other words, the non-taxation of offshore companies was predictable or foreseeable. Therefore, what paragraph 90 of the present judgment means is that a company may enjoy a selective advantage even when it is not subject to the tax of the reference system so that the existence of that selective advantage cannot be proven by pointing out to a deviation from the reference system but rather to a narrower scope than the scope it should have had according to its own aims or objectives. For example, if a tax system merely states that its objective is to tax profits of liable companies and the liable companies are those with more than 250 employees, without containing any exemption for SMEs, it has an artificially narrow scope because profits are generated by SMEs too which remain untaxed rather than exempted.
The Court went on to explain why the scope of reference system had to be taken into account. “(91) Such an interpretation of the selectivity criterion would require that in order for a tax system to be classifiable as ‘selective’ it must be designed in accordance with a certain regulatory technique; the consequence of this would be that national tax rules fall from the outset outside the scope of control of State aid on account of the sole fact that they were adopted under a different regulatory technique although, by adjusting and combining various tax rules, they produce the same effects in law and/or in fact. It therefore conflicts with settled case-law that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects, and thus independently of the techniques used”. (emphasis added)
“(92) If, on the basis of that case-law, the use of a regulatory technique cannot enable national tax rules to escape from the outset the scrutiny concerning State aid provided for under the FEU Treaty, resorting to the regulatory technique used is not sufficient to define the relevant reference framework for the purposes of assessing the condition relating to selectivity, except in order to ensure that the form of State intervention prevails decisively over its effects. Consequently, […], the regulatory technique used cannot be decisive for the purposes of determining the reference framework.” (emphasis added)
It is difficult to understand whether paragraph 92 means anything else apart from saying don’t look at the formal objectives of the reference framework, look at its effects. But I am not sure that paragraph 92 follows from paragraph 91. In the latter paragraph the Court says the absence of a formal exemption is a regulatory technique that is not relevant because we need to examine effects, not form, since the purpose of the regulatory technique is to exclude certain companies from the outset. In paragraph 92, the Court seems to want to say that, by analogy, regulatory techniques should also be ignored in determining the reference system. As a statement of analogous reasoning, this appears to be logical. But in all the previous paragraphs and in the Gibraltar case, the term “regulatory technique” is used to identify companies that are excluded. Must we now understand the term “regulatory technique” to mean an artificial inclusion of companies in a reference system? Perhaps this is too complex reasoning. Perhaps what the Court intends to say, bearing in mind what comes afterwards, is that companies which are in the same position as other companies in relation to reference system A should not be artificially brought under a different reference system B. But even in this instance, the question is why not? There can be several layers of selectivity. The treatment of a company may not be selective in relation to system A but can be selective in relation to system B. For example, all companies may benefit from a special measure that doubles the tax credit on research expenditure but some companies may benefit from extra benefits if they carry out the expenditure in a certain region.
At any rate, the Court went on to state that “(93) it also follows from that case-law that while, for the purposes of establishing the selectivity of a tax measure, the regulatory technique used is not decisive, with the result that it is not always necessary for it to derogate from a common tax system, the fact that it is a derogation as a result of the use of that regulatory technique is relevant for those purposes where it follows that two categories of operators are distinguished and a priori treated differently, namely those covered by the derogation and those which are covered by the ordinary taxation regime, even though those two categories are in a comparable situation with regard to the objective pursued by that system”.
One cannot disagree with this statement which seems to repeat paragraphs 90 & 91 rather than to elaborate paragraph 92. If there is a derogation, there is selectivity. But if there is no derogation it does not follow that there is no selectivity because the whole system may be designed in such a way as to “exclude from the outset” certain companies.
“(94) Further, it must be recalled that the fact that only taxpayers satisfying the conditions for the application of a measure may benefit from the measure does not, in itself, make it selective”. This indeed applies to the example above of the doubling of tax credits for research. Only those who carry out research can obtain the benefits, but any company can in principle carry out research and therefore, all companies are from the outset in the same situation.
“(96) In that regard, it should be noted that, in paragraph 103 of the judgment under appeal, the General Court noted that ‘in the contested decision, the Commission established […] the rule governing the forfeiture of losses as being the general rule in respect of which it was appropriate to examine whether there was a distinction between the undertakings that were in a comparable factual and legal situation, while (HBH) refers to the more general rule of loss carry-forward, which applies to all taxation’.”
“(97) It also pointed out, in paragraph 104 of that judgment, that ‘it is open to all undertakings to make use of the loss carry-forward rule in the context of the levying of corporation tax’ and that ‘the rule governing the forfeiture of losses restricts the use of that option in the event of the acquisition of a shareholding equal to or greater than 25% of the share capital and withdraws it in the event of the acquisition of more than 50% of the share capital’, stating that ‘the latter rule therefore applies systematically to all cases of a change of ownership of 25% or more of a company’s share capital, without drawing any distinction on the basis of the nature or characteristics of the undertakings concerned’.”
“(99) In paragraph 106 of that judgment, it concluded that […] ‘in other words, the general loss carry-forward rule, as limited by the rule governing the forfeiture of losses, constitutes the relevant legal framework in the present case, and [that] it is precisely within that framework that it is appropriate to check whether the measure at issue differentiates between operators in a comparable factual and legal situation’.”
“(100) In paragraph 107 of the judgment under appeal, the General Court held that ‘the Commission did not err when, while noting the existence of a more general rule, namely the loss carry-forward rule, it determined that the legislative framework of reference established in order to assess the selectivity of the measure at issue was constituted by the rule governing the forfeiture of losses’.”
HBH argued that that reasoning led the General Court to classify incorrectly the rule governing the forfeiture of losses as the reference framework while excluding from that reference framework the general rule which permitted the forward carrying of losses.
Before continuing with the review of the judgment, diagram 1 can help in understanding the reasoning of the Court at this point. The diagram shows how the relevant German law operated as understood by the General Court.
Diagram 1: The German tax law according to the General Court
The General Court proceeded from the general rules to the particular rules and considered Box 3 to be the reference system. Consequently, Box 4 was a derogation because it suspended the application of the rule that losses carried forward could not be deducted from profits in case a company was taken over by another. In the conception of the General Court, companies falling in Box 3 are a subset of all companies in Box 2 (because there are fewer companies in Box 3 than in Box 2) and companies in Box 4 are a subset of Box 3 (because there are fewer companies in Box 4 than in Box 3).
Then the Court of Justice continued, “(102) it is apparent from that reasoning that, although the General Court found that there was a general tax rule applicable to all undertakings subject to corporation tax, namely the loss carry-forward rule, it held, however, that the Commission did not err in taking the view that the relevant reference framework for the purposes of examining the selective nature of the measure at issue was constituted only by the rule governing the forfeiture of losses, despite the fact that it was not disputed that that rule was itself an exception to the loss carry-forward rule and even though an overall examination of the content of those provisions should have made it possible to find that the restructuring clause’s effect was to define a situation falling under the general loss carry-forward rule.”
That is, according to the Court of Justice the right way to describe the German tax law is as indicated in diagram 2. Now Box 3 is not an exception but part of Box 2.
Diagram 2: The German tax law according to the Court of Justice
“(103) It follows from the case-law of the Court, recalled in paragraphs 90 to 93 of the present judgment, that the selectivity of a tax measure cannot be precisely assessed on the basis of a reference framework consisting of some provisions that have been artificially taken from a broader legislative framework. Therefore, by thus excluding from the relevant reference framework in the present case the general rule of loss carry-forward, manifestly the General Court defined it too narrowly.”
Two comments are in order here. First, it should be recalled that paragraphs 90-93 of the present judgment refer to the unusual situation where whole tax systems appear not to be selective but in reality are selective because they “inevitably” “exclude from the outset” certain companies from their scope of application. In the case of the German tax law, there are explicit exemptions from the scope of application, first, of its provision on carry forward losses and, second, of its provision for the limitation of the carry forward losses.
Second, the Court does not explain how the General Court’s assessment had the effect of “artificially” taking some provisions from broader legislative framework. In fact, the General Court went from the general to the particular. That seems both logical and reasonable.
Nonetheless, the Court of Justice continued that “(104) in reaching that conclusion, the [General] Court relied on the fact that the measure at issue was worded in the form of an exception to the rule governing the forfeiture of losses, it should be recalled that, as has already been pointed out in paragraph 92 of the present judgment, the regulatory technique used cannot be decisive for the purposes of the determination of the reference framework.”
“(107) As is apparent from the case-law referred to in paragraphs 83 and 86 to 89 of the present judgment, an error in the determination of the reference framework against which the selectivity of the measure should be assessed necessarily vitiates the whole of the analysis of the condition relating to selectivity.”
The Court of Justice concluded that the pleas of HBH were admissible and that the General Court erred in law. When the Court of Justice quashes a decision of the General Court, it may itself give final judgment, if it is possible by the facts of the case, without having to refer the case back to the General Court. Accordingly, the Court of Justice proceeded to annul definitively both the judgment of the General Court and the prior Commission decision.
This is an important judgment not only for what it says explicitly but for what it ignores. It confirms the judgment in the Gibraltar case that we must not just focus on legal wording and “regulatory techniques” to determine whether a measure deviates from the general rule but also examine the intention and scope of the tax system itself. I would also add that the purpose for examining the intention and scope of the system is, as the Court correctly put it in the Gibraltar case, to detect whether certain companies are “excluded from the outset”.
The present judgment also breaks new ground because it tells us that “regulatory techniques” must also be disregarded in determining the relevant reference system.
What the Court has not told us is how to identify a regulatory technique that results in an “artificial” distinction that must be ignored so that the companies that appear to fall in a different category should in fact be placed in the same category as other companies, leading to the conclusion that the former do not benefit from a selective (more favourable) treatment.
The Court in the Gibraltar case examined a whole tax system and concluded that it had a too narrow scope. In the present case the Court examines part of the tax system [the rule that applied to the companies taken over and restructured] and concludes that it is part of or embedded in the wider rule on the carrying forward of losses. By applying to a part of the system an approach that was developed for the whole system, the Court opens the floodgates for Member States to argue that the wording of their tax laws should be disregarded for being a mere “regulatory technique”. This is not a per se legal problem. But it is still the likely and adverse consequence of the judgment.
Admittedly, the Court’s interpretation of the concept of State aid should not be conditional on how the Member States may react. By contrast, however, any judgment should take into account how Member States can comply with it. And in this respect, there are at least four issues in this judgment that should have merited further explanation apart from the application to a part of the system an approach that was originally intended to delineate the scope of the whole system.
First, we still do not know how to determine the reference system, even though this was the overall objective of this judgment (see paragraphs 88 & 89 of the judgment quoted above). While in Gibraltar the Court came up with useful criteria (e.g. “inevitable consequence”, “exclusion at the outset”) to determine whether companies that were excluded from taxation were in reality in the same situation as taxed companies, in this case we just have what comes close to being an arbitrary statement that the reference system is the loss carry forward rule.
Second, there is no explanation why the explicit exception in the German tax law was considered to be a mere “regulatory technique” when its intention was to exclude restructured companies from the suspension of the loss carry forward rule when they would be taken over. While it is obvious that EU law should prevent Member States from differentiating between companies through contrived regulatory techniques which are in essence discriminatory, it is not obvious at all why their overtly differentiating techniques should be ignored.
Third, as the Court itself said in paragraphs 91 & 92 of the present judgment, what matters is the effect of a measure, not the form or technique. In diagram 1, problematic companies taken over are a subset of all companies taken over. In diagram 2, problematic companies (taken over) are a subset of all companies carrying losses forward. It is in this sense that the judgment comes close to effecting an arbitrary closure of the argument. It classifies problematic companies as being part of the general set of companies carrying losses forward without examining effects, but merely stating that the “regulatory technique” must be ignored.
Well, let’s consider possible effects. Within the set of all companies wishing to carry forward losses, some companies are allowed to do so (all companies including problematic companies taken over) while some companies are not (other companies taken over). It is obvious that problematic companies taken over are treated differently than other companies taken over. As the Commission observed, and endorsed by the General Court, the distinction between problematic companies taken over and other companies taken over did not stem from the logic of the system or an intrinsic objective of the system, which could justify their different treatment. If indeed there was an objective which was intrinsic to the system it was the prevention of tax avoidance by taking over companies.
Companies vary in myriad ways. The only credible method for determining which differences are relevant and which are not is to consider the effects that stem from the objective(s) of the tax system. The objective of the system was to disallow the carrying forward of losses in case of companies taken over because that would lead to avoidance of taxation. As already mentioned, preventing companies from escaping taxation is an intrinsic objective of the tax system. The fact that some of the companies taken over were problematic was an irrelevant fact for the tax system. The effect was that their escape from the suspension of the carrying forward of losses placed them in a more favourable situation than other companies taken over.
One can also compare the two groups of companies – taken over and problematic companies taken over – by asking why a profitable company would want to take over a loss-making company. The answer is to use the losses to reduce tax liability. Both the companies that had ceased operations and the companies that needed restructuring were loss-making. But it is a lot easier and less costly to deal with a company that exists only in name than a company that still operates, but at a loss. Indeed, the reason for the non-application of the suspension of the forward carrying of losses was to incentivise profitable companies to take over and keep open loss-making companies, despite the extra expenses they would have to incur to restructure them. Therefore, by examining effects, we must conclude that the loss-making but still operating companies taken over were given an advantage over loss-making companies that had already ceased operations when they were taken over.
Fourth, if regulatory techniques are to be ignored, the Court could also have examined how they should be ignored and how the restructured companies taken over could fall under the general rule of forward carrying of losses in the absence of an explicit exception specifically applying to them. For this to happen, the rule suspending the forward carrying of losses would have to be roughly phrased as follows: “the forward carrying of losses is not allowed in the case of companies taken over which are no longer operating”. In other words it would have to be an artificially narrow rule. As is well established in the case law (see the judgment in Gibraltar and the series of judgments in the British Aggregates saga), a measure is selective not only when it takes the form of an exemption but also when it defines an obligation which is too narrow in scope. The products or companies falling outside its scope receive a selective advantage in relation to similar products or companies. In the present case, in general, companies taken over are not allowed to pass on to their new owners the benefits from using their losses. But some other companies taken over are allowed to pass on their losses when they are restructured. Viewed in this way and ignoring regulatory techniques, as we are instructed by the Court to do, all those other companies that are restructured are in an advantageous position.
If one retorts that the new owners of restructured companies incur expenses that reduce the benefits from using the past losses of the companies they take over, it would be a correct argument. But they may still be able to enjoy net benefits not allowed to potential owners of other companies that can be the source of equivalent benefits.
To summarise the argument, the resolution of the conundrum of what is the reference system comes down to matching companies with the relevant tax rules. Are problematic companies in the set of all companies carrying losses forward or in the set of companies taken over? The Court of Justice identified the former (see diagram 2). The Commission and General Court identified the latter (see diagram 1). If we have to ignore regulatory techniques and legal phrasing, we must resort to another, more objective method. The method in diagram 1 appears to be more objective because it goes from the general to the particular. The method in diagram 2 appears to ignore that the distinction between problematic companies taken over and other companies taken over is not intrinsic to the tax system.
 I would like to thank Pierpaolo Rossi for comments on an earlier draft, some of which are reflected in this article. However, all views expressed here are solely my responsibility.
 I am grateful to Pierpaolo Rossi for pointing out these cases.
 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union, OJ C262, 19 July 2016. It can be accessed at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2016.262.01.0001.01.ENG&toc=OJ:C:2016:262:TOC.
 The full text of the judgment can be accessed at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=203426&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=137318.
 See T-210/02 RENV, British Aggregates Association v Commission and C-487/06 P, British Aggregates v Commission. See also the latest Commission decision 2016/298, OJ L59, 4 March 2016.