Presidente del Consiglio dei Ministri v Regione Sardegna.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2009:709
• Docket Number: C-169/08
• Date: 17 November 2009
• Procedure Type: Reference for a preliminary ruling

Case C-169/08

Presidente del Consiglio dei Ministri

v

Regione Sardegna

(Reference for a preliminary ruling from the Corte costituzionale)

(Freedom to provide services – Article 49 EC – State aid – Article 87 EC – Regional legislation establishing a tax on stopovers for tourist purposes by aircraft used for the private transport of persons, or by recreational craft, to be imposed only on operators whose tax domicile is outside the territory of that region)

Summary of the Judgment

1. Freedom to provide services – Services – Definition

(Art. 50 EC)

2. Freedom to provide services – Restrictions – Tax legislation

(Art. 49 EC)

3. State aid – Definition – Selective nature of the measure

(Art. 87(1) EC)

1. The concept of ‘services’ within the meaning of Article 50 EC implies that they are ordinarily provided for remuneration and that the remuneration constitutes consideration for the service in question and is agreed upon between the provider and the recipient of the service.

A regional tax on stopovers, which applies to operators of means of transport which travel to the territory of the region, and not to undertakings which carry on their activity in that region, even if it does not apply to the provision of transport services, is not devoid of any connection with the freedom to provide services. Whilst the third paragraph of Article 50 EC refers only to the active provision of services – where the provider moves to the beneficiary of the services – that also includes the freedom of the persons for whom the services are intended, including tourists, to go to another Member State, where the provider is, in order to enjoy the services there. Given that persons operating a means of transport and the users of such transport receive a number of services on the territory of the region concerned, such as the services provided at the airports and ports, the stopover is a necessary condition for receiving such services and the regional tax on stopovers has a certain link with their provision.

In addition, a regional tax on stopovers by recreational craft which also applies to the undertakings operating such recreational craft and, inter alia, to those whose commercial operations consist in making such craft available to third parties for remuneration, directly affects the provision of services within the meaning of Article 50 EC.

Finally, the services on which the regional tax on stopovers has an impact may have a cross-border character since, in the first place, that tax is likely to affect the ability of undertakings established in the region concerned to offer stopover services at the airports and ports to nationals of, or undertakings established in, another Member State and, in the second place, it affects the operations of outsider undertakings having their seat in another Member State and operating recreational craft in that region.

(see paras 23-28)

2. Article 49 EC must be interpreted as precluding tax legislation, adopted by a regional authority, which establishes a regional tax on stopovers for tourist purposes by aircraft used for the private transport of persons, or by recreational craft, to be imposed only on natural and legal persons whose tax domicile is outside the territory of the region, because the application of that tax legislation makes the services concerned more costly for the persons liable for that tax, who have their tax domicile outside the territory of the region and who are established in other Member States, than they are for operators established in that territory.

Admittedly, in relation to direct taxation, the situation of residents and the situation of non-residents in a given Member State are not generally comparable, for there are objective differences between them, both from the point of view of the source of the income and from the point of view of their ability to pay tax or the possibility of account being taken of their personal and family circumstances. However, in order for the comparison of the situation of the taxpayers to be carried out, the specific characteristics of the relevant tax must be taken into account. Accordingly, a difference in treatment as between residents and non-residents may constitute a restriction on the freedom to provide services prohibited by Article 49 EC where there is no objective difference in the situation, with regard to the tax levy in question, which would justify different treatment between the various categories of taxpayer.

Such a restriction cannot be justified on grounds relating to environmental protection where the basis for applying the regional tax is a distinction between persons unrelated to that environmental objective. Nor can such a restriction be justified on grounds of the cohesion of the tax system of the region concerned because the non-imposition of that tax on those residents cannot be regarded as offsetting the other taxes imposed on them given that that tax does not pursue the same objectives as the taxes paid by taxpayers who are resident in that region.

(see paras 31, 34-35, 45, 48-50, operative part 1)

3. Article 87(1) EC must be interpreted as meaning that tax legislation, adopted by a regional authority, establishing a tax on stopovers with regard to operators of aircraft used for the private transport of persons and of recreational craft, imposed only on natural and legal persons whose tax domicile is outside the territory of the region, constitutes a State aid measure in favour of undertakings established in that territory.

The notion of aid can encompass not only positive benefits such as subsidies, loans or direct investment in the capital of enterprises, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect. Thus, tax legislation which grants certain undertakings exclusion from the obligation to pay the tax in question constitutes State aid, even if it does not involve the transfer of State resources, since it involves the renunciation by the authorities concerned of tax revenue which they would normally have received.

In order to determine whether such a measure is selective, where it is adopted by an infra-State body which enjoys autonomy vis-à-vis the central government, it is necessary to determine whether, with regard to its objective, it constitutes an advantage for certain undertakings as compared with others which, within the legal framework in which that body exercises its competences, are in a comparable legal and factual situation. That is the case where, in the light of the nature and objectives of that tax, all the natural and legal persons who receive stopover services in the region concerned are in an objectively comparable situation, irrespective of their place of residence or the place where they are established.

(see paras 56-57, 61, 63, 66, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

17 November 2009 (*)

(Freedom to provide services – Article 49 EC – State aid – Article 87 EC – Regional legislation establishing a tax on stopovers for tourist purposes by aircraft used for the private transport of persons, or by recreational craft, to be imposed only on operators whose tax domicile is outside the territory of that region)

In Case C‑169/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Corte costituzionale (Italy), made by decision of 13 February 2008, received at the Court on 21 April 2008, in the proceedings

Presidente del Consiglio dei Ministri

v

Regione Sardegna,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, J.‑C. Bonichot, P. Lindh and C. Toader (Rapporteur), Presidents of Chambers, C.W.A. Timmermans, A. Rosas, P. Kūris, E. Juhász, G. Arestis, A. Borg Barthet, A. Ó Caoimh and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Region of Sardinia, by A. Fantozzi and G. Campus, avvocati,

– the Netherlands Government, by C. Wissels and M. Noort, acting as Agents,

– the Commission of the European Communities, by W. Mölls and E. Righini, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 July 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 49 EC and 87 EC.

2 The reference was made in proceedings between the President of the Council of Ministers and the Region of Sardinia regarding the establishment by that region of a tax on stopovers for tourist purposes by aircraft used for the private transportation of persons, or by recreational craft, to be imposed only on operators whose tax domicile is outside the territory of that Region.

National legal framework

The Italian Constitution

3 The first paragraph of Article 117 of the Italian Constitution provides:

‘Legislative power shall be exercised by the State and the Regions in accordance with the Constitution and within the limits set by Community law and international obligations.’

National legislation

4 The first paragraph of Article 743 of the Sea and Air Navigation Code (Codice della navigazione) gives the following definition of aircraft:

‘“Aircraft” means any machine intended for the transportation by air of persons or things.’

5 In Article 1(2) of the Recreational Sailing Code (Codice della nautica da diporto), introduced by Legislative Decree No 171 (Decreto legislativo n. 171) of 18 July 2005, recreational sailing is defined as follows:

‘For the purposes of this Code, recreational sailing means sailing in maritime and inland waters for sporting or leisure purposes and without a view to profit.’

6 Article 2(1) of the Recreational Sailing Code concerns...