Judgment_paragraph 55 · European Commission v Kingdom of Spain and Others (C-128/16 P)

55It must be recalled that, in order to establish the selective nature of a tax advantage, it is not necessary for the competent national authorities to have the discretionary power to grant the benefit of that measure. However, the existence of such a discretion may be such as to enable those authorities to favour certain undertakings or the production of certain goods to the detriment of others and therefore establish the existence of aid, within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 121). That is so, in particular, where the competent authorities have a discretionary power to determine the beneficiaries and the conditions of the measure granted on the basis of criteria unrelated to the tax system. On the other hand, the application of an authorisation system in which the competent authorities only have a latitude limited by objective criteria which are not unrelated to the tax system established by the legislation in question could not, in principle, be regarded as selective (see, to that effect, judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraphs 26 and 27).