Judgment_paragraph 80 · Hungary v European Commission (T-20/17)

80Hungary correctly maintains that rates of taxation cannot be excluded from the content of a tax system, as the Commission did (see recital 48 of the contested decision). Whether tax is levied at a single rate or at a progressive rate, the tax rate forms part of the fundamental characteristics of a tax levy’s legal regime, just as the basis of assessment, the taxable event and the group of taxable persons do. As the Polish Government argues, the Commission itself states, in point 134 of the Notice on the notion of State aid as referred to in Article 107(1) [TFUE] (OJ 2016 C 262, p. 1), that, ‘in the case of taxes, the reference system is based on such elements as the tax base, the taxable persons, the taxable event and the tax rates’. In the absence of the tax rate enabling the structure of the ‘normal’ system to be determined, it is indeed impossible to examine whether there is a favourable derogation to the advantage of certain undertakings (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56, and of 7 March 2012, British Aggregates v Commission, T‑210/02 RENV, EU:T:2012:110, paragraph 52). That is why if, in the context of the same tax, certain undertakings are subject to different tax rates, including different exemptions, from other undertakings, it is necessary to determine the ‘normal’ situation relevant, which forms part of the ‘normal’ system, without whose identification the method referred to in paragraphs 75 and 76 above cannot be applied.