Opinion of Advocate General Kokott in the case ANGED (C-236/16 and C-237/16).
Kokott proposes that the questions referred by the Tribunal Supremo (Supreme Court, Spain) be answered as follows:
1. Articles 49 and 54 TFEU do not preclude a tax on retailers based on sales area such as the tax at issue here.
2. Article 107(1) TFEU may not be interpreted as meaning that the non-taxation of retail establishments with a total area of less than 2 000 m2 would constitute aid. The same holds for the exemption from tax for establishments engaged in the sale of: (a) machinery, vehicles, tools and industrial supplies; (b) construction materials, plumbing materials, doors and windows, for sale only to professionals; (c) nurseries for gardening and cultivation; (d) motor vehicles, in dealerships and repair workshops, and (e) motor fuel.
3. The question whether the exemption from tax for retail establishments in which fittings for individual, conventional and specialist establishments are sold constitutes aid within the meaning of Article 107(1) TFEU depends on comparability with retail establishments which sell fittings other than in such establishments. This must be determined by the referring court.
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