Commission Decision of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (notified under document C(2009) 8107) (Only the Spanish text is authentic) (Text with EEA relevance) (2011/5/EC)

Article 1

1. The aid scheme implemented by Spain under Article 12(5) of Royal Legislative Decree No 4/2004 of 5 March 2004, consolidating the amendments made to the Spanish Corporate Tax Act, unlawfully put into effect by the Kingdom of Spain in breach of Article 88(3) of the Treaty is incompatible with the common market as regards aid granted to beneficiaries in respect of intra-Community acquisitions.

2. None the less, tax reductions enjoyed by the beneficiaries in respect of intra-Community acquisitions, by virtue of Article 12(5) TRLIS, which are related to rights held directly or indirectly in foreign companies fulfilling the relevant conditions of the aid scheme by 21 December 2007, apart from the condition that they hold their shareholdings for an uninterrupted period of at least 1 year, can continue to apply for the entire amortisation period established by the aid scheme.

3. Tax reductions enjoyed by beneficiaries in respect of intra-Community acquisitions, by virtue of Article 12(5) TRLIS which are related to an irrevocable obligation entered into before 21 December 2007 to hold such rights where the contract contains a suspensive condition linked to the fact that the operation at issue is subject to the mandatory approval of a regulatory authority and where the decision and the operation has been notified before 21 December 2007, can continue to apply for the entire amortisation period established by the aid scheme for the part of the rights held as of the date when the suspensive condition is lifted.