L 7/48 Official Journal of the European Union 11.1.2011 (Acts adopted before 1 December 2009 under the EC Treaty, the EU Treaty and the Euratom Treaty) 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) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof, Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof, Having called on interested parties to submit their comments (') pursuant to the provisions cited above and having regard to their comments, Whereas: [. PROCEDURE By written questions addressed to the Commission (Nos E-4431/05, E-4772/05 and E-5800/06) several MEPs indicated that Spain had enacted a special scheme allegedly providing an unfair tax incentive for Spanish companies that acquired significant shareholdings in foreign companies, pursuant to Article 12(5) of the Spanish Corporate Tax Act (Real Decreto Legislativo 4/2004, de 5 de marzo, por el que se aprueba el texto refundido de la Ley del Impuesto sobre Sociedades, here- inafter TRLIS) (2). By written question No P-5509/06, Mr David Martin MEP complained to the Commission about the hostile takeover bid by the Spanish energy producer Iberdrola involving purchasing shares of the UK energy generator and distributor, ScottishPower. According to Mr Martin, Iberdrola had unfairly benefited from State aid in the form of a tax incentive for the acquisition. Mr Martin asked the Commission to examine all competition issues arising from the acquisition, which had been notified on 12 January 2007 for review by the Commission pursuant () O] C 311, 21.12.2007, p. 21. (3) Published in the Spanish Official State Gazette of 11 March 2004. to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (hereinafter the Merger Regu- lation) (}). By Decision dated 26 March 2007 (Case No COMP/M.4517 —  Iberdrola/ScottishPower, SG- Greffe(2007) D[201696) (%), the Commission decided not to oppose the notified operation and to declare it compatible  with  the common market under Article 6(1)(b) of the Merger Regulation. By letters dated 15 January 2007 (D/50164) and 26 March 2007 (D-51351), the Commission asked the Spanish authorities to provide information in order to assess the scope and the effects of Article 12(5) TRLIS as regards its possible classification as State aid and its compatibility with the common market. By letters dated 16 February 2007 (A/31454) and 4 June 2007 (A[34596), the Spanish authorities replied to these questions. By fax dated 28 August 2007, the Commission received a complaint by a private operator alleging that the scheme set up by Article 12(5) TRLIS constituted State aid and was incompatible with the common market. The complainant asked for his identity not to be divulged. By Decision of 10 October 2007 (hereinafter the initiating Decision), the Commission initiated the formal investigation procedure laid down in Article 88(2) of the Treaty in respect of the tax amorti- sation of financial goodwill provided for by Article 12(5) TRLIS, because it appeared to fulfil all the conditions for being considered State aid under Article 87(1) of the Treaty. The Commission informed Spain that it had decided to initiate the procedure laid down in Article 88(2) of the Treaty. The Decision to initiate the procedure was published in the Official Journal of the European Union (°), inviting interested parties to submit their comments. () O] L 24, 29.1.2004, p. 1. () See: http:/[ec.europa.eu/comm/competition/mergers/cases/decisions m4517_20070326_20310_en.pdf (°) See footnote 1.