The ECJ declares that a tax regime such as that at issue in the main proceedings may satisfy the condition of selectivity as an element of the concept of 'State aid' within the meaning of Article 107(1) TFEU if it were to be established that the reference system, namely the 'normal' system, consists in a prohibition on the deduction of losses in the case of a change of ownership for the purposes of the first subparagraph of Paragraph 122 of Law No 1535/1992 of 30 December 1992 on income tax (Tuloverolaki), in relation to which the authorisation procedure provided for in the third subparagraph of Paragraph 122 would constitute an exception.
Such a regime may be justified by the nature or general scheme of the system of which it forms part, but justification is not possible if the competent national authorities, so far as concerns authorisation to derogate from the prohibition on the deduction of losses, have a discretion which empowers them to base authorisation decisions on criteria unrelated to that tax regime.
However, the Court does not have sufficient information before it to rule definitively on those classifications.