Judgment;Summary — ECLI:EU:C:2024:152
Date: 2024-02-22
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Competition;Free movement of capital;Economic and monetary policy
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-660/22 – 1 
Case C-660/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
20 October 2022 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
27 September 2022 
Appellant: 
Ente Cambiano società cooperativa per azioni 
Respondent:  
Agenzia delle entrate 
  
Subject matter of the main proceedings 
Appeal before the Corte suprema di cassazione (Supreme Court of Cassation) 
against the judgment by which the Commissione tributaria regionale della 
Toscana (Regional Tax Court, Tuscany) dismissed the action brought by Ente 
Cambiano (a limited liability cooperative society) against the refusal of a request 
which it submitted to the Agenzia delle Entrate (Revenue Authority) for 
reimbursement of the payment to the public exchequer of 20% of its net assets on 
the occasion of the transfer of its banking business to a limited liability company. 
Subject matter and legal basis of the request 
The reference for a preliminary ruling concerns the compatibility with European 
Union law, and in particular the principle of free movement of capital laid down 
in Articles 63 et seq. TFEU, and also the principles of free competition and 
protection of the market enshrined in Articles 101, 102, 120 and 173 TFEU, of 
national legislation which provided that cooperative credit banks which, as at 
31 December 2015, had net assets of over EUR 200 million had the possibility of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-660/22 
 
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not joining a cooperative banking group and transferring their banking business to 
a limited liability company (‘way out’ option). The above national legislation has, 
however, made this option subject to the obligation to pay 20% of the net assets to 
the public exchequer and required, in the event of failure to fulfil that obligation, 
that the assets of the transferring cooperative credit bank be transferred to mutual 
funds for the promotion and development of cooperation. 
Article 267 TFEU 
Question referred for a preliminary ruling 
Do Articles 63 et seq., 101, 102, 120 and 173 TFEU preclude national legislation 
which, like Article 2(3-ter) and (3-quater) of Decree-Law No 18 of 14 February 
2016, converted, with amendments, by Law No 49 of 8 April 2016, in the version 
applicable ratione temporis, makes the payment of a sum equal to 20% net assets 
as at 31 December 2015 a condition for the possibility for cooperative credit 
banks having net assets of over EUR 200 million as at 31 December 2015, instead 
of joining a group, transferring their banking business to a public limited 
company, including a newly established one, authorised to perform banking 
activities, by amending their articles of association so as to exclude the 
performance of banking activities and at the same time maintaining the mutuality 
clauses set out in Article 2514 of the Italian Civil Code, and providing the 
shareholders with services which serve to maintain the relationship with the 
transferee public limited company relating to training and information on savings 
issues and the promotion of assistance programmes? 
Provisions of European Union law relied on 
TFEU, Articles 63 et seq., 101, 102, 120 and 173 
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 
26 June 2013 on prudential requirements for credit institutions and investment 
firms and amending Regulation (EU) No 648/2012 
Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the 
raising of capital 
Council Directive 85/303/EEC of 10 June 1985 amending Directive 69/335/EEC 
concerning indirect taxes on the raising of capital 
Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on 
the raising of capital 
Council Directive 2009/133/EC of 19 October 2009 on the common system of 
taxation applicable to mergers, divisions, partial divisions, transfers of assets and 
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exchanges of shares concerning companies of different Member States and to the 
transfer of the registered office of an SE or SCE between Member States 
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 
2013 on access to the activity of credit institutions and the prudential supervision 
of credit institutions and investment firms, amending Directive 2002/87/EC 
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 
2014 establishing a framework for the recovery and resolution of credit 
institutions and investment firms and amending Council Directive 82/891/EEC, 
and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 
2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 
and (EU) No 648/2012, of the European Parliament and of the Council 
Charter of Fundamental Rights of the European Union, Articles 16 and 17 
Provisions of national law relied on 
Decreto Legislativo 1° settembre 1993, n. 385 – Testo unico delle leggi in materia 
bancaria e creditizia ((Legislative Decree No 385 of 1 September 1993 – The 
Consolidated Law on banking and credit; ‘the Consolidated Law on Banking’), in 
particular Article 150-bis(5): 
‘In cases of mergers and conversions provided for in Article 36, and also the 
transfer of legal relations en bloc and divisions resulting in a bank established in 
the form of a public limited company, the effects of devolution of the assets laid 
down in Article 17 of Law No 388 of 23 December 2000 shall remain unaffected’. 
Decreto-legge 14 febbraio 2016, n. 18 – Misure urgenti concernenti la riforma 
delle banche di credito cooperativo, la garanzia sulla cartolarizzazione delle 
sofferenze, il regime fiscale relativo alle procedure di crisi e la gestione collettiva 
del risparmio (Decree-Law No 18 of 14 February 2016 on urgent measures 
concerning the reform of cooperative credit banks, the guarantee scheme for 
securitisations of non-performing loans, tax arrangements relating to crisis 
procedures, and the collective management of assets), converted, with 
amendments, by Law No 48 of 8 April 2016 (Decree-Law No 18/2016), in 
particular Article 2(3-bis), (3-ter) and (3-quater): 
‘3-bis. In derogation from Article 150-bis(5) of Legislative Decree No 385 of 
1 September 1993, there shall be no devolution in respect of cooperative credit 
banks which, within 60 days of the date of entry into force of the law converting 
this decree, submit a request, including a joint request, to the Bank of Italy, 
pursuant to Article 58 of Legislative Decree No 385 of 1993, for the transfer of 
their respective banking businesses to the same public limited company, including 
a newly incorporated company, authorised to perform banking activities, provided 
that the requesting bank or, in the case of a joint request, at least one of the 
requesting banks has, as at 31 December 2015, net assets of over EUR 200 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-660/22 
 
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million, as shown in the financial statements as at that date, on which the auditor 
has expressed an unqualified opinion. 
3-ter. At the time of the transfer, the transferring cooperative credit bank shall pay 
to the State budget an amount equal to 20% of the net assets as at 31 December 
2015, as shown in the financial statements as at that date, on which the auditor has 
issued an unqualified opinion. 
3-quater. Following the transfer, the transferring cooperative credit bank, which 
retains the non‑ distributable reserves net of the payment referred to in 
paragraph 3-ter, shall amend its object to exclude the performance of banking 
activity and undertake to maintain the mutuality clauses set out in Article 2514 of 
the Civil Code, and also to provide the shareholders with services which serve to 
maintain the relationship with the transferring public limited company relating to 
training and information on savings issues and the promotion of assistance 
programmes. (…) In the event of failure to fulfil the obligations laid down in this 
paragraph and paragraphs 3-bis and 3-ter, the assets of the transferor, or, as the 
case may be, of the cooperative credit bank, shall be devolved pursuant to 
Article 17 of Law No 388 of 23 December 2000 (…)’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The legislation deriving from Article 2(3-bis) (3-ter) and (3-quater) of Decree-
Law No 18/2016 is part of the reform of the regulation of cooperative credit banks 
in the Italian legal order. That reform aimed to overcome the structural 
weaknesses arising, inter alia, from the organisational arrangements and small size 
of most cooperative credit banks. The main model envisaged by the reform was 
for cooperative credit banks to join a cooperative banking group, headed by a 
parent company (holding company) in the form of a public limited company, 
majority owned by the affiliated cooperative credit banks themselves and 
endowed powers of direction and coordination. 
2 By contrast, only in respect of the strongest banks, having net assets of over 
EUR 200 million as at 31 December 2015, did Article 2(3-bis), (3-ter) and (3-
quater) of Decree-Law No 18/2016 provide for the possibility of not joining the 
group, by transferring their banking business to a public limited company, 
modifying their articles of association so as to exclude the perform of banking 
activity and maintaining, at the same time, the clauses relating to the prevalence of 
the company’s objective based on mutuality (‘way out’ option). The transferring 
company could also remain a shareholder and acquire control of the transferee 
company. 
3 Under Article 2(3-ter) and (3-quater) of Decree-Law No 18/2016, if the ‘way-out’ 
option was exercised, the transferring bank was required to pay to the public 
exchequer an amount equal to 20% of its net assets. In the event of failure to fulfil 
that obligation, the assets of the transferring bank were to be transferred to the 
mutual funds for the promotion and development of cooperation in accordance 
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with Article 17 of Law No 388 of 23 December 2000, pursuant to the general rule 
laid down in Article150-bis(5) of the Consolidated Law on Banking. 
4 Ente Cambiano società cooperativa per azioni (‘Ente Cambiano’), which had net 
assets of over EUR 200 million as at 31 December 2015, exercised the ‘way out’ 
option, transferring its banking business to a public limited company, of which it 
acquired control. Pursuant to Article 2(3-ter) of Decree-Law No 18/2016, the 
appellant had to pay to the public exchequer, at the time of the transfer, the 
amount of EUR 54 208 740.00, equal to 20% of its net assets as at 31 December 
2015. 
5 The appellant thus submitted a request for reimbursement of that amount to the 
Agenzia delle Entrate, which did not grant it. Subsequently, Ente Cambiano 
lodged an appeal against that refusal before the Commissione tributaria 
provinciale (Provincial Tax Court) and then before the Commissione tributaria 
regionale della Toscana (Regional Tax Court, Tuscany), which, by judgement of 
13 December 2018, dismissed the appeal. 
6 Ente Cambiano therefore lodged an appeal on a point of law against the judgment 
of the Commissione tributaria regionale della Toscana, claiming, in particular, that 
the legislation governing the ‘way out’ option is incompatible with both European 
Union law and the Italian Constitution. 
7 Since the Corte suprema di cassazione (Supreme Court of Cassation) found that 
the question of constitutionality raised by the appellant concerning Article 2(3-bis) 
and (3-ter) of Decree-Law No 18/2016 was not manifestly unfounded, it referred 
that question to the Corte costituzionale (Constitutional Court). 
8 By judgment No 149/2021 the Corte costituzionale ruled that the above legislation 
is not unlawful. In particular, in that judgment it found that the payment of 20% of 
the net assets provided for in Decree-Law No 18/2016 does not constitute a tax. In 
the view of the Corte costituzionale, on the contrary, that payment does constitute 
a charge to which the pursuit of the transferring company’s interest in continuing 
to exist as an autonomous mutual society is subject, without having to merge into 
a group and thus be subject to the management and coordination powers of a 
parent company. 
The essential arguments of the parties in the main proceedings 
9 In the view of the appellant, the legislation at issue is incompatible with several 
provisions of European Union law. 
10 Firstly, the payment obligation established by Article 2(3-ter) and (3-quater) of 
Decree-Law No 18/2016 is contrary to the principle of the free movement of 
capital laid down in Articles 63 et seq. TFEU. In that regard, Ente Cambiano notes 
that the principle of the free movement of capital has been specified in Directive 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-660/22 
 
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2008/7, which, by implementing Directive 69/335, established the tax neutrality of 
acts of transfer. 
11 In that regard, the appellant recalls the judgment of the Court of Justice of 16 July 
2020, OC and Others v Banca d’Italia and Others, C-686/18, EU:C:2020:567, in 
which it was held that any restrictions on the freedom of investment must meet 
objectives of general interest recognised by the European Union. However, in the 
view of Ente Cambiano, the payment obligation at issue does not contribute to the 
improvement of competition and the stability of the banking system, but, on the 
contrary, unjustifiably penalises precisely the strongest cooperative credit banks, 
which are capable, as such, of attracting capital investments from other Member 
States. 
12 Secondly, the legislation at issue infringes Directive 2009/133 on the common 
system of taxation applicable to transfers of assets concerning companies of 
different Member States. In the Italian legal system, the scope of that directive, 
which provided that transfers of businesses must be subject to an ordinary tax 
neutrality regime, was extended also to transfers of domestic businesses by 
Article 176 of Decreto del Presidente della Repubblica 22 dicembre 1986, n. 
917 – Approvazione del testo unico delle imposte sui redditi (Presidential Decree 
of No 917 of 22 December 1986 approving the codified law on income tax). 
13 Thirdly, the contested legislation infringes the principles of free competition and 
protection of the market enshrined in Articles 101, 102, 120 and 173 TFEU. 
14 Fourthly, the national legislation is incompatible with Articles 16 and 17 of the 
Charter of Fundamental Rights of the European Union in that the contested 
payment obligation infringes the right of the Ente Cambiano to exercise free 
economic initiative. 
15 In the view of the Agenzia delle Entrate, on the other hand, the contested 
legislation above all pursues the objective of strengthening the stability of the 
Italian banking system and is therefore in line with the provisions of EU law 
aimed at reducing the possibility of banking crises of a systemic nature. Those 
provisions include Regulation No 575/2013 and Directive 2013/36, which 
implement the Basel III Accord on bank capital requirements, and also Directive 
2014/59 on the recovery and resolution of credit institutions. 
16 The respondent further submits that the payment obligation at issue is also not 
incompatible with promotion of the market and competition since it does not 
unreasonably prejudice the transferring bank in comparison with other economic 
operators. On the contrary, the payment at issue constitutes the reasonable price of 
the advantage provided for in Decree-Law No 18/2016, which consists in the 
ability to avoid the transfer of the entire share capital to mutual funds for the 
promotion and development of cooperation. 
17 Finally, the contested payment obligation would not infringe EU law even if it 
were classified as a tax. The Court of Justice has held that Directive 69/335, as 
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amended by Directive 85/303, does not preclude the charging of tax on 
undertakings’ net assets (judgment of 27 October 1998, Manifattura italiana 
Nonwoven SpA v Direzione regionale delle entrate per la Toscana, C-4/97, 
EU:C:1998:507, and order of 15 March 2001, Petrolvilla & Bortolotti SpA v 
Direzione delle Entrate per la Provincia di Trento, C-279/99, C-293/99, 
C-296/99, C-330/99 and C-336/99, EU:C:2001:170). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 The referring court considers that the conflict between the parties’ arguments 
cannot be resolved by way of interpretation of national law in conformity with 
European Union law, given the strict wording of the contested provision, and 
therefore considers it necessary to refer the question to the Court of Justice of the 
European Union.