# C_2019328EN.01000901.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/9 |
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30.9.2019

EN

Official Journal of the European Union

C 328/9

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Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 5 June 2019 — Agenzia delle entrate — Riscossione v Poste Italiane SpA

(Case C-435/19)

(2019/C 328/10)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant and respondent in the cross-appeal: Agenzia delle entrate — Riscossione

Respondent and appellant in the cross-appeal: Poste Italiane SpA

Questions referred

| 1. | Is a rule such as that provided for in the combined provisions of Article 10(3) of Legislative Decree No 504/1992 and Article 2(18) to (20) of Law No 662/1996, under which reserved services (statutory monopoly) in favour of Poste Italiane s.p.a. are set up and maintained — even following the privatisation of the ‘bancoposta’ postal banking services provided by Poste Italiane s.p.a. — in relation to the management of the postal current account intended for the collection of the local municipal real estate tax (ICI), incompatible with Articles 14 TFEU (formerly Article 7D of the Treaty, then Article 16 EC) and 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and with classification as a service of general economic interest (SGEI), bearing in mind developments in State rules governing tax collection which, since 1997 at least, has allowed taxpayers and local tax authorities freely to use methods of payment and tax collection (including local taxes) through the banking system? |
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1.

Is a rule such as that provided for in the combined provisions of Article 10(3) of Legislative Decree No 504/1992 and Article 2(18) to (20) of Law No 662/1996, under which reserved services (statutory monopoly) in favour of Poste Italiane s.p.a. are set up and maintained — even following the privatisation of the ‘bancoposta’ postal banking services provided by Poste Italiane s.p.a. — in relation to the management of the postal current account intended for the collection of the local municipal real estate tax (ICI), incompatible with Articles 14 TFEU (formerly Article 7D of the Treaty, then Article 16 EC) and 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and with classification as a service of general economic interest (SGEI), bearing in mind developments in State rules governing tax collection which, since 1997 at least, has allowed taxpayers and local tax authorities freely to use methods of payment and tax collection (including local taxes) through the banking system?

| 2. | If the answer to the first question is that the establishment of the statutory monopoly must be recognised as meeting the SGEI criteria, is a rule such as that resulting from the combined provisions of Article 10(3) of Legislative Decree No 504/1992, Article 2(18) to (20) of Law No 662/1996 and Article 3(1) of Presidential Decree No 144/2001, which grants Poste Italiane s.p.a. the power unilaterally to determine the level of the fee payable by the agent collecting the ICI that is applied to each management transaction carried out in the postal current account in the name of the agent, incompatible with Articles 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and 107(1) TFEU (formerly Article 92 of the Treaty, then Article 87 EC), according to the interpretation of such rules provided by the Court of Justice with reference to the requirements for distinguishing a lawful measure — providing compensation for the performance of public service obligations — from unlawful State aid (judgment of the Court of Justice of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C 280/00), bearing in mind that Poste Italiane spa, by board decision No 57/1996, set that fee at ITL 100 for the period from 1 April 1997 to 31 May 2001 and at EUR 0.23 for the period from 1 June 2001? |
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2.

If the answer to the first question is that the establishment of the statutory monopoly must be recognised as meeting the SGEI criteria, is a rule such as that resulting from the combined provisions of Article 10(3) of Legislative Decree No 504/1992, Article 2(18) to (20) of Law No 662/1996 and Article 3(1) of Presidential Decree No 144/2001, which grants Poste Italiane s.p.a. the power unilaterally to determine the level of the fee payable by the agent collecting the ICI that is applied to each management transaction carried out in the postal current account in the name of the agent, incompatible with Articles 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and 107(1) TFEU (formerly Article 92 of the Treaty, then Article 87 EC), according to the interpretation of such rules provided by the Court of Justice with reference to the requirements for distinguishing a lawful measure — providing compensation for the performance of public service obligations — from unlawful State aid (judgment of the Court of Justice of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C 280/00), bearing in mind that Poste Italiane spa, by board decision No 57/1996, set that fee at ITL 100 for the period from 1 April 1997 to 31 May 2001 and at EUR 0.23 for the period from 1 June 2001?

| 3. | Is a set of rules such as that put in place by Article 2(18) to (20) of Law No 662/1996, Article 3(1) of Presidential Decree No 144/2001 and Article 10(3) of Legislative Decree No 504/1992, under which the agent is necessarily required to pay the fee as unilaterally determined and/or varied by Poste Italiane s.p.a., incompatible with Article 102, first paragraph, TFEU (formerly Article 86 of the Treaty, then Article 82(1) EC), as interpreted by the Court of Justice (see judgments of 13 December 1991, Case C-18/88, GB-Inno-BM, of 25 June 1998, Case C-203/96, Dusseldorp and Others, and of 17 May 2001, Case C-340/99, TNT TRACO), given that the agent is not otherwise able to withdraw from the postal current account contract without infringing the obligation laid down in Article 10(3) Legislative Decree No 504/1992 and, as a consequence, infringing its ICI-collection obligations to the local tax authority? |
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3.

Is a set of rules such as that put in place by Article 2(18) to (20) of Law No 662/1996, Article 3(1) of Presidential Decree No 144/2001 and Article 10(3) of Legislative Decree No 504/1992, under which the agent is necessarily required to pay the fee as unilaterally determined and/or varied by Poste Italiane s.p.a., incompatible with Article 102, first paragraph, TFEU (formerly Article 86 of the Treaty, then Article 82(1) EC), as interpreted by the Court of Justice (see judgments of 13 December 1991, Case C-18/88, GB-Inno-BM, of 25 June 1998, Case C-203/96, Dusseldorp and Others, and of 17 May 2001, Case C-340/99, TNT TRACO), given that the agent is not otherwise able to withdraw from the postal current account contract without infringing the obligation laid down in Article 10(3) Legislative Decree No 504/1992 and, as a consequence, infringing its ICI-collection obligations to the local tax authority?

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