Presidente del Consiglio dei Ministri v Regione Sardegna.

• Jurisdiction: European Union
• Celex Number: 62008CC0169
• ECLI: ECLI:EU:C:2009:420
• Date: 02 July 2009
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-169/08

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 2 July 2009 ¹(1)

Case C‑169/08

Presidente del Consiglio dei Ministri

v

Regione autonoma della Sardegna

(Reference for a preliminary ruling from the Italian Corte costituzionale)

(Freedom to provide services (Article 49 EC) – State aid (Article 87 EC) – Tax legislation – Autonomous Region of Sardinia – Regional tax on stopovers for tourist purposes by aircraft or recreational craft – Tax imposed only on persons whose tax domicile is outside the region – Protection of the environment – Protection of health – Cohesion of the tax system – Island regions)

I – Introduction

1. The present case is the first in which the Court has been asked by the Italian Constitutional Court, the Corte costituzionale, (2) to give a preliminary ruling pursuant to Article 234 EC.

2. The main action, which takes the form of constitutional review proceedings, concerns a regional tax of the Autonomous Region of Sardinia (3) which since 2006 has been charged on certain stopovers by private aircraft and recreational craft in the period from 1 June to 30 September each year. However, the tax affects only persons who do not have their tax domicile in Sardinia and, furthermore, it is not charged on stopovers by craft which are moored in Sardinia throughout the entire year.

3. The Italian Constitutional Court is uncertain as to whether that Sardinian tax legislation is consistent with Community law, to be precise, with the freedom to provide services (Article 49 EC) and the prohibition of State aid (Article 87 EC). Any conflict with Community law would be relevant to the constitutionality proceedings before the Constitutional Court because, under Italian constitutional law, Community law forms part of the test criterion for that purpose.

II – Legal context

A – Community law

4. The Community law context of this case consists of, first, the provisions of the EC Treaty on the freedom to provide services and, second, those concerning State aid.

5. The principle of the freedom to provide services is laid down in Article 49(1) EC as follows:

‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.’

6. In addition, Article 50(1) EC sets out the following definition:

‘Services shall be considered to be “services” within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.’

7. The section of the EC Treaty concerning State aid is introduced by Article 87(1) EC, which reads as follows:

‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’

8. Reference must also be made to Article 88(3) EC:

‘The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.’

B – National law

9. With regard to national law, in addition to the relevant provisions of the Italian Constitution, certain measures of national legislation on the one hand and certain measures adopted by the Autonomous Region of Sardinia on the other are of importance.

1. The Italian Constitution

10. The first paragraph of Article 117 of the Italian Constitution provides as follows:

‘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.’

2. Italian national legislation

11. The first paragraph of Article 743 of the Italian Codice della navigazione (4) defines ‘aircraft’ as follows:

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

12. Article 1(2) of the Italian Codice della nautica da diporto, (5) instituted by Decreto legislativo (6) No 171 of 18 July 2005 defines ‘recreational navigation’ 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.’

13. Article 2(1) of the Codice della nautica da diporto deals with the commercial use of recreational craft and defines it as follows:

‘(1) Recreational craft are used for commercial purposes where:

(a) they are the subject of a contract of leasing or chartering;

(b) they are used for professional training in recreational sailing;

(c) they are used by diving and sub-aqua training centres as support craft for persons practising underwater diving for sports or leisure purposes.

…’

3. The regional legislation of the Autonomous Region of Sardinia

14. Article 4 of Law No 4 of the Region of Sardinia of 11 May 2006 (7) (‘Regional Law No 4/2006’), as amended in 2007, (8) provides as follows:

‘(Regional tax on stopovers for tourist purposes by aircraft and recreational craft)

(1) From 2006, a regional tax on stopovers for tourist purposes by aircraft or recreational craft shall be established.

(2) The pre-conditions for the tax shall be the following:

(a) stopovers in the period between 1 June and 30 September at airfields in the territory of the region by general aviation aircraft, as referred to in Article 743 et seq. of the Codice della navigazione, used for the private transport of persons;

(b) stopovers in the period between 1 June and 30 September in harbours, berths and mooring places situated in the territory of the region and at rigged moorings in territorial waters along the coasts of Sardinia by recreational craft, as referred to in Legislative Decree No 171 of 18 July 2005 (Codice della nautica da diporto) or, in any event, by craft used for recreational purposes, of a length exceeding 14 metres, measured in accordance with the EN/ISO/DIS 8666 harmonised standards, as provided for in Article 3(b) of that legislative decree.

(3) The persons liable for the tax shall be the natural or legal persons who operate the aircraft for the purposes of … or who operate the recreational craft for the purposes of … and whose tax domicile is outside the territory of the region.

(4) The regional tax provided for in paragraph 2(a) shall be payable in respect of each stopover, and that provided for in paragraph 2(b) shall be payable annually.

(5) The tax shall be assessed as follows:

(a) EUR 150 for aircraft designed to carry up to four passengers,

(b) EUR 400 for aircraft designed to carry from five to twelve passengers,

(c) EUR 1 000 Euro for aircraft designed to carry more than twelve passengers,

(d) EUR 1 000 for water craft with a length of 14 to 15.99 metres inclusive,

(e) EUR 2 000 for water craft with a length of 16 to 19.99 metres inclusive,

(f) EUR 3 000 for water craft with a length of 20 to 23.99 metres inclusive,

(g) EUR 5 000 for vessels with a length of 24 to 29.99 metres inclusive,

(h) EUR 10 000 for vessels with a length of 30 to 60 metres inclusive,

(i) EUR 15 000 for vessels with a length exceeding 60 metres.

The tax shall be reduced by 50% for sailing boats with an auxiliary engine and for motor sailing vessels.

(6) The following shall be exempt from the tax:

(a) vessels which make a stopover in order to take part in sporting regattas, rallies of vintage and monotype boats and in sailing events, including non-competitive events, where the organisers have given the maritime authorities advance notification of the event; …

(b) recreational craft with are moored throughout the year at harbour installations of the region;

(c) technical stops, limited to the time necessary for those purposes.

…

(7) The tax shall be paid:

(a) in the case of aircraft referred to in paragraph 2(a), at the time of landing;

(b) within 24 hours of the arrival of recreational craft in harbours, berths and mooring places, or at rigged moorings, along the coasts of Sardinia;

in accordance with procedures to be laid down by measure ...

…’

15. It must also be mentioned that, as a consequence of the amendment in 2008 of the regional legislation cited above, persons who have their tax domicile in Sardinia were also made liable for the tax; in 2009 the disputed tax provisions were then completely repealed. (9) The present proceedings however still concern the 2007 version of the regional tax.

III – The main proceedings

16. Proceedings have been brought before the Italian Constitutional Court by the President of the Italian Council of Ministers in relation to the constitutionality of a number of legal measures adopted by the Autonomous Region of Sardinia (10) with the object of determining whether they are consistent with the Italian Constitution. Those measures include Article 4 of Regional Law No 4/2006, in the amended version of 2007.

17. In the main proceedings it is claimed that the last-mentioned provision is inconsistent with the Community law commitments to which legislation in Italy is subject pursuant to Article 117(1) of the Italian Constitution. The first complaint is that that provision infringes Article 49 EC; second, that it infringes Article 81 EC in conjunction with Articles 3(1)(g) and 10 EC and, third, that it infringes Article 87 EC.

18. At the present stage of the proceedings the Italian...