Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1.

• Jurisdiction: European Union
• Celex Number: 62004CC0148
• ECLI: ECLI:EU:C:2005:522
• Docket Number: C-148/04
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 08 September 2005

OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 8 September 2005 ¹(1)

Case C-148/04

Unicredito Italiano SpA

v

Agenzia delle Entrate, Ufficio Genova 1

(Reference for a preliminary ruling from the Commissione tributaria provinciale di Genova (Italy))

(Invalidity of Commission Decision 2002/581/EC – State aid – Article 87 EC – Tax advantages for banks – Recovery – Proportionality – Protection of legitimate expectations)

Table of contents

I – Introduction

II – Facts and procedure

A – Background to the contested decision

B – Procedure before the Commission, the contested decision and the implementation of that decision

C – Main proceedings and questions referred

D – Proceedings before the Community Courts

III – Subject-matter and admissibility of the proceedings and of the questions referred

A – Admissibility of the proceedings with regard to the action before the Court of First Instance

B – Subject-matter and admissibility of the questions referred

IV – First and second questions referred (assessment of validity)

A – Infringement of Article 87 EC

1. Lawfulness of the classification of the disputed measure as aid within the meaning of Article 87(1) EC

a) Submissions of the referring court and main arguments of the parties

b) Assessment

c) The lawfulness of the contested decision with regard to the application of Article 87(3)(b) and (c) EC

i) Submissions of the referring court and main arguments of the parties

ii) Assessment

2. Infringement of the principles of the protection of legitimate expectations and of legal certainty

a) Submissions of the referring court and main arguments of the parties

b) Assessment

3. Infringement of the principle of proportionality

a) Submissions of the referring court and main arguments of the parties

b) Assessment

4. Infringement of the obligation to state reasons under Article 253 EC

a) Submissions of the referring court and main arguments of the parties

b) Assessment

5. Conclusion in respect of the assessment of validity

V – The third question referred (interpretation)

VI – Costs

VII – Conclusion

I – Introduction

1. By order of 11 February 2004, received at the Court Registry on 23 March 2004, the Commissione tributaria provinciale di Genova (Provincial Tax Commission, Genoa) referred to the Court several questions for a preliminary ruling concerning, first, the validity of Commission Decision 2002/581/EC of 11 December 2001 on the tax measures for banks and banking foundations implemented by Italy (2) and, secondly, the interpretation of Article 87 EC, Article 14 of Regulation (EC) No 659/1999 (3) and a number of general principles of Community law.

2. Those questions are raised in the context of a dispute between Unicredito Italiano SpA, which has its registered office in Genoa (‘Unicredito’), and the Agenzia delle Entrate, Ufficio Genova 1 (Revenue Agency, Genoa 1 Office) (‘the Authority’) regarding the reimbursement of additional tax payments made by Unicredito in the light of measures introduced by Italy to implement the contested decision.

II – Facts and procedure

A – Background to the contested decision

3. Until the 1980s, the Italian banking sector was partly State-owned and, in general, characterised by significant State influence and both specialisation and regionalisation. From the early 1980s, the Italian authorities began to privatise banks, with the intention also of increasing the average bank size and bringing to an end specialisation. By Law No 218/90 of 30 July 1990, the so-called ‘Amato Law’ (‘the Amato Law’), the Italian Government adopted fundamental measures with a view to the gradual privatisation of the banking sector.

4. Consequently, the banks which were State-owned were able to be converted into public limited companies, with such conversion becoming mandatory in 1993. Their shares were placed on the market or transferred to profit-oriented establishments, referred to as ‘banking foundations’. As part of the latter processes, the following split occurred: the newly established banks (generally ‘the banks’) assumed responsibility for banking operations, whilst the banking foundations owned and managed the shares in the banks, thus controlling them. Under certain tax provisions contained in the Amato Law, the banking foundations were also entitled to transfer to the banks certain fixed and other assets which were not essential to the banks’ corporate objectives.

5. In the late 1990s, the Italian Government adopted new measures to promote the restructuring and consolidation of the banking sector. Law No 461/98 of 23 December 1998 (‘the Ciampi Law’) granted the government the power, inter alia, to adopt tax provisions to facilitate the retransfer to the banking foundations of the banks’ fixed and other assets, which were not essential to their corporate objectives, and to facilitate the restructuring of the banking sector by means of mergers between banks or similar restructuring measures.

6. The Ciampi Law was implemented by Legislative Decree No 153/99 of 17 May 1999 (‘Decree No 153/99’), which provides for special tax rules in respect of certain restructuring and retransfer transactions. Those measures introduced by the Ciampi Law and Decree No 153/99 (‘the disputed aid scheme’) are described in recital 5 in the preamble to the contested decision.

7. The referring court states that the main proceedings concern the measure described as follows in point 1 of recital 5 in the preamble to the contested decision (‘the disputed measure’):

the reduction to 12.5% of the rate of income tax (IRPEG) for banks which merge or engage in similar restructuring, for five years after the operation, provided that the profits are placed in a special reserve which may not be distributed for a period of three years. The profits which may be placed in the special reserve may not exceed 1.2% of the difference between the sum of credits and debits of the post-merger bank and the sum of credits and debits of the largest pre-merger bank (Articles 22(1) and 23(1) of Decree No 153/99).

B – Procedure before the Commission, the contested decision and the implementation of that decision

8. In response to a parliamentary question on the matter, the Commission launched preliminary investigations into the disputed aid scheme in March 1999. In the course of the procedure, the Commission notified the Italian authorities by letter of 23 March 2000 that the disputed aid scheme might contain elements of aid and requested that it provisionally cease to apply the scheme. By letter of 12 April 2000, the Italian authorities informed the Commission that they would suspend the application of the disputed aid scheme, with the result that the tax relief could be granted in 1998, 1999 and 2000 only.

9. By letter of 25 October 2000, the Commission notified the Italian Government of the opening of State aid proceedings. In the context of those proceedings, Unicredito, together with a number of other banks, submitted written observations by letter of 10 March 2001.

10. On 11 December 2001, the Commission adopted the contested decision in which it held that the measures forming part of the disputed aid scheme in favour of the banks – with the exception of the measure set out in point 5 of recital 5 in the preamble to the contested decision – constituted State aid which is incompatible with the common market (Articles 1 and 2 of the decision). In addition, the Commission required the Italian Government to withdraw the disputed aid scheme (Article 3 of the decision), to recover the aid granted under the unlawful provisions plus interest (Article 4 of the decision) and to inform the Commission, within two months of notification of the decision, of the measures taken to implement it (Article 5 of the decision).

11. It is appropriate to reproduce Article 4 of the contested decision (‘the order to recover’) here:

‘1. Italy shall take all necessary measures to recover from the beneficiaries the aid granted under the scheme referred to in Article 1 and unlawfully made available to the beneficiaries.

2. Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective implementation of the Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.’

12. In order to comply with the contested decision, the disputed aid scheme was initially suspended with effect from the 2001 tax year. Subsequently, by Decree-Law No 282/02 of 24 December 2002, which later became Law No 27 of 21 February 2003 on urgent provisions regarding ‘Community and fiscal measures, tax collection and accounting procedures’, (4) the banks which had benefited from the disputed aid scheme were required to make a supplementary tax payment plus interest corresponding to that amount of tax not paid, in accordance with the disputed measures, in each of the tax years in which those measures applied (‘the national tax recovery’).

C – Main proceedings and questions referred

13. Unicredito, which was established from the merger of six formerly independent banks which had profited from the tax relief provided for in the disputed measure, is one of the banks affected by the recovery.

14. In the main proceedings, the national court is required to rule on the action brought by Unicredito against the Authority’s implicit rejection of its application for reimbursement of the, in total, EUR 244 712 646.05 in additional taxes and interest initially paid by it as part of the national tax recovery.

15. In support of its request for reimbursement, Unicredito claims in the main proceedings that the disputed aid scheme is nothing more than the continuation of laws, such...