When the acquisition of the business of a company is made by way of the acquisition of its shares, as in the case of the measure , goodwill can only arise if the acquiring company combines subsequently with the acquired company, over which it will then have control.

Therefore, a sale to GECB/GECIH subject to the measures appeared to be the most sensible way of restructuring AGB1.

The contract in the case does in fact contain a mechanism for recovering aid if Intermed does not honour its commitments.

The Norwegian authorities have argued that the measure does not contain aid, and have not put forward any arguments concerning compatibility.

The Spanish authorities and the 30 interested parties consider that the measure does not to constitute State aid within the meaning of Article 87(1) of the Treaty since: (i) it does not confer an economic advantage; (ii) it does not favour certain undertakings; and (iii) it does not distort or threaten to distort competition between Member States.

The fact that a measure benefits only companies that comply with the objective criterion laid down in the measure does not in itself make it selective.

Thirdly, as regards the 5 % threshold, this level does not set a minimum amount to be invested and therefore the measure does not benefit only large undertakings.

The Commission also considers that the measure does not constitute aid if, at the time the beneficiaries enjoyed its benefits, all the conditions laid down in legislation adopted pursuant to Article 2 of Regulation (EC) No 994/98 and applicable at the time the tax deduction was enjoyed were met.

In the light of the foregoing, the Commission finds that the measure does not constitute State aid within the meaning of Article 87(1) EC.

The measure does not constitute State aid

Umicore considers that a tax agreement such as the agreement does not constitute an advantage within the meaning of the TFEU and therefore it is not State aid.

Thirdly, the Spanish authorities point out that the measure does not constitute a true economic advantage since, in the case of sale of the acquired shareholding, the amount deducted is recovered by taxation of the capital gain, thus placing the taxpayer in the same situation as if Article 12(5) TRLIS had not been applied.

The measure does not confer an economic advantage

Therefore the measure does not have the effect of increasing exports of Spanish goods or services.

However, given that the measure does not result directly from the basic principles of the reference tax system, the Commission considers it superfluous to analyse the system of controls put in place by Italy to ensure compliance with the conditions for the ICI exemption for non-commercial entities, as described by the Italian authorities.

In response to the appraisal made by the Commission in its letter of 18 March 2004 initiating the formal investigation, the Italian authorities raised three main observations aimed at demonstrating that the scheme does not discriminate between potential beneficiaries in the different branches of the distributive trades, but constitutes a general measure open to all undertakings engaged in trading activities.

In Bouygues Telecom's opinion, the measure does not fulfil the criteria mentioned in the Commission Notice on the application of Articles 87 and 88 of the EC Treaty to state aid in the form of guarantees(hereinafter called ‘the Notice on state aid in the form of guarantees’) in so far as, in particular, France Télécom was in financial difficulties at the time the guarantee was granted and in so far as the guarantee does not relate to any specific transaction and gives rise to no remuneration.

The measure does not favour certain undertakings or production

None the less, the measure does not require any such type of control and applies as from a 5 % level of shareholding.

In this respect, it should first be noted that the measure does not fall under any of the frameworks or guidelines that define the conditions to consider certain types of aid compatible with the common market.