Opinion of the Advocate General — ECLI:EU:C:2010:411
Date: 2010-07-08
Language of the case: Italian
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – Assessment of whether a particular grant of aid is compatible with the common market – Excluded (Art. 234 EC) 2. State aid – Definition – Tax advantages granted to producers’ and workers’ cooperatives – Included – Conditions (Art. 87(1) EC) 1. Although the Court may not, in proceedings under Article 234 EC, rule upon the compatibility of a provision of domestic law with Union law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Union law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it. In particular, the Commission’s powers for the purpose of determining whether aid is compatible with the common market do not preclude a national court from referring to the Court of Justice a question on the interpretation of the concept of aid. Accordingly, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation of Union law to enable it to determine whether a national measure may be classified as State aid under that law. (see paras 34-35) 2. Tax exemptions granted to producers’ and workers’ cooperative societies under national legislation conferring certain tax benefits constitute State aid within the meaning of Article 87(1) EC only in so far as all the requirements for the application of that provision are met, namely: (i) the financing of the measure by the State or through State resources; (ii) the selectivity of that measure, and; (iii) the effect of that measure on trade between Member States and the distortion of competition resulting from the measure. In the present case, it is for the referring court to determine in particular whether the tax exemptions granted to producers’ and workers’ cooperative societies are selective and whether they can be justified by the nature or general scheme of the national tax system of which they form part, by establishing in particular whether the cooperative societies in question are in fact in a comparable situation to that of other operators in the form of profit‑making legal entities and, if that is indeed the case, whether the more advantageous tax treatment enjoyed by those cooperative societies, first, forms an inherent part of the essential principles of the tax system applicable in the Member State concerned and, second, is consistent with the principles of consistency and proportionality. (see paras 43, 82, operative part)