Opinion of the Advocate General — ECLI:EU:C:2020:750
Date: 2020-09-24
Language of the case: Italian
Subject matter: State aids;Competition;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-434/19 — 1 
Case C-434/19 
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:  
5 June 2019 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
21 January 2019 
Appellant (and respondent in the cross-appeal):  
Poste Italiane SpA 
Respondent (and appellant in the cross-appeal):  
Riscossione Sicilia SpA — tax-collection agency for the province of 
Palermo and the other provinces of Sicily 
  
Subject matter of the action in the main proceedings 
Obligation to pay a fee to Poste Italiane spa for its management of the postal 
current account into which payments are made by taxable persons required to pay 
the municipal real estate tax (imposta comunale sugli immobili; ICI) — 
Obligation of the agent of the municipal tax collection service to open such a 
current account in order to collect ICI payments — Exclusive position of Ente 
Poste Italiane, latterly Poste Italiane spa (statutory monopoly) — Infringement of 
EU law — State aid — Unilateral determination of the fee — Abuse of a 
dominant position — Request by the Corte di Cassazione (Italy) for the Court of 
Justice to deliver a preliminary ruling 
Subject-matter and legal basis of the reference 
Interpretation of EU law under Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-434/19 
 
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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? 
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) 
POSTE ITALIANE 
 
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Legislative Decree No 504/1992 and, as a consequence, infringing its ICI-
collection obligations to the local tax authority? 
Provisions of EU law and EU case-law relied on 
TFEU: Articles 14, 102, first paragraph, 106(2), 107(1) and 108 
Judgments of the Court of 13 December 1991, GB-Inno-BM (C-18/88, 
EU:C:1991:474); of 25 June 1998, Dusseldorp and Others (C-203/96, 
EU:C:1998:316); of 17 May 2001, TNT Traco (C-340/99, EU:C:2001:281); and 
of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, 
EU:C:2003:415) 
Provisions of national law relied on 
Article 10(3) of decreto legislativo (Legislative Decree; ‘dlgs’) No 504 of 
30 December 1992 
Article 2(18) to (20) of legge (Law) No 662 of 23 December 1996 
Article 3, first paragraph, of decreto del Presidente della Repubblica (Presidential 
Decree; ‘DPR’) No 144 of 14 March 2001, and 
other provisions cited as necessary in the summary 
Succinct presentation of the facts and the main proceedings 
1 Poste Italiane s.p.a. is a private-law company with a majority public shareholding, 
formed as a result of the conversion, initially, of the Amministrazione autonoma 
delle Poste e delle Telecomunicazioni into the public economic entity ‘Poste 
Italiane’ and, subsequently, of the Ente Poste into a public limited company, as 
provided for by decreto legge (Decree Law; ‘DL’) 487/93. The services and 
activities to be performed were established over time as the privatisation 
progressed. It is clear from the wording of Article 2(19) of legge 662/96 (‘Postal 
and payment services for which a system of statutory monopoly is not expressly 
provided by the legislation in force shall be performed by the Ente Poste Italiane 
and by other operators under the rules of free competition ...’) that other services 
were exclusively reserved for the Ente, with an obligation to keep separate 
accounts (Article 2(20) of legge 662/96).  
2 In reorganising the finances of regional bodies, Article 10(3) of dlgs 504/92 
provided that the only methods of paying the ICI were either ‘direct payment to 
the agent of the tax collection service in whose district the municipality [of the 
real estate taxed] is located’ or payment ‘into a special postal current account in 
the name of the aforementioned agent’. The agent was therefore obliged to open a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-434/19 
 
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postal current account to fulfil his obligation to the taxing authority (the 
municipality). 
3 The abovementioned obligation for the purposes of collecting the ICI was not 
repealed by the reforms of the rules on tax collection (decreto del ministro delle 
Finanze (Decree of the Minister for Finance) 567/93, dlgs 241/97, dlgs 300/99 and 
dlgs 446/97), all of which were designed to extend the methods of paying other 
taxes and charges, including local ones (irrevocable authorisation to banks, 
payment at the Municipality’s counters or into accounts in the name of the 
municipal finance department). Only in 2011 was the local tax collection agent 
expressly granted the right to open just one single bank current account instead of 
a postal one (DL 70/2011). 
4 Like the services and activities to be performed, the criteria for determining the 
tariffs for postal and payment services were also amended in the course of the 
privatisation of the Amministrazione delle Poste: a prohibition on free services 
being provided to public authorities and public bodies was introduced (DPR 
256/89); the requirements for consultation with competent ministers were reduced 
(DPR 256/89, DL 487/93); in respect of the services governed by the rules on 
competition, ‘every tariff obligation or social obligation ... as well as every form 
of preferential tariff’ was abolished — in order to take into account, instead, with 
effect from 1 April 1997, ‘the requirements of customers and the characteristics of 
demand, as well as ... the volume of traffic’ (Article 2(20) Law 662/96); and fees 
were charged to current account holders (Article 2(18) Law 662/96). In particular, 
a fee was charged on every transaction carried out in connection with the 
management of funds collected in postal current accounts by the agents of the tax 
collection service (tariff decision No 57/96 of the Administrative Board). Lastly, 
DPR 144/2001 established that relationships with clients and postal current 
accounts would be governed ‘on a contractual basis, in accordance with the 
provisions of the Civil Code and special laws’ (Article 3(1)), as was previously 
the case with bank accounts. 
5 The parties — Poste Italiane spa and Riscossione Sicilia spa, tax-collection 
agency for the province of Palermo and the other provinces of Sicily — disagree 
as to whether there is an obligation to pay the fees at issue for the period 1997–
2011. The appeal judges, varying the judgment at first instance in part, recognised 
Post Italiane’s right to the payment, but only for the period after 1 January 2001. 
The case is now pending before the Corte di Cassazione 
The main arguments of the parties to the main proceedings 
6 Riscossione Sicilia claims that it is unlawful to charge a fee for a management 
service that is imposed by statute. The requirement to have a postal current 
account in order to collect the ICI on behalf of municipalities creates a statutory 
monopoly for Poste Italiane, which profits from the consequent dominant position 
in order unilaterally to determine all the contractual conditions, including fees, 
POSTE ITALIANE 
 
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and confers on it an undue advantage over other economic operators, since it does 
not, in Riscossione Sicilia’s opinion, actually perform public tasks justifying 
compensation. The aid that Poste Italiane receives in this way from the State, 
notification of which was not given to the Commission, is prohibited under 
Articles 107 TFEU and 108 TFEU, or alternatively, Articles 102 TFEU and 106 
TFEU and Article 4 TEU. 
7 Poste Italiane contends, in summary, that: (1) even if provided as part of a 
statutory monopoly, postal current account services cannot be provided free of 
charge; (2) in any event, the agent could seek from the municipalities 
reimbursement of the fees paid for the compulsory requirement to open an 
account; (3) the fees were determined in compliance with the criteria of 
uniformity and equal treatment of agents and in any event by means of the charges 
laid down in the Condizioni Economiche Bancoposta, and (4) the same disputed 
tax law made provision for alternative methods of payment (in particular, payment 
directly to the agent). 
Succinct presentation of the grounds for the request for a preliminary ruling 
8 The Joint Chambers of the Corte di Cassazione have already ruled, recently, on 
the obligation to pay the fee at issue, noting that no provision states that 
management of the postal current account intended for the collection of the ICI 
should be provided free of charge, and therefore that service it is to be paid for, 
even if that requirement is imposed, as are postal current account services 
operated under the rules on free competition. The logic in, and justification for, 
reserving activities for Poste Italiane reside in the objective of maximising tax 
collection by means of the widespread distribution of post offices which are easily 
accessible across the whole of Italy. However, the present Chamber now 
entertains doubts, in the light of the possibility of using the banking system 
introduced in 2011, as to the lawfulness of Poste Italiane’s statutory monopoly, 
and is uncertain whether this does not, in fact, amount to non-notified State aid. 
9 The referring court begins with an examination: (1) of the contract-based 
relationship between the municipal tax authority and the tax collection agent, the 
purpose of which is the pursuit of an economic activity aimed at the collection of 
fiscal revenues, which can be defined as a service of general economic interest 
within the meaning of Article 106(2) TFEU, and (2) of the private-law contractual 
relationship relating to the management of the postal current account, which is 
established between the agent and Poste Italiane, in accordance with Article 10(3) 
of dlgs 504/1992. 
10 The latter relationship differs from the current-account relationships between 
Poste Italiane and its other clients owing simply to the limitations on the 
contractor’s power to choose, since the statutory monopolist is obliged to enter 
into a contract with a person requesting its services (Article 2597 of the Civil 
Code). However, Poste Italiane does not enter into a mandatory relationship 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-434/19 
 
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governed by public or private law with the municipal tax authority. Therefore, a 
reservation of activity with respect to the other economic operators in the sector 
(banks which also offer current account services) is compatible with EU law only 
to the extent that the service offered by Poste Italiane is a service of general 
economic interest, or only if Poste Italiane has been entrusted with a ‘particular 
task’ for the purposes of Articles 14 and 106 TFEU. 
11 The referring court nonetheless entertains doubts as to the lawfulness of the status 
conferred on Poste Italiane, observing, on the one hand, that there is no provision, 
for the ICI, similar to that in Article 10(3) dlgs 504/92, in the rules governing the 
collection of other local taxes, and, on the other hand, by contrast, that since 1997 
the payment of taxes, including local taxes, has been permitted by way of the 
banking system. 
12 If, nevertheless, the statutory monopoly as regards the postal current account 
services for the collection of the ICI is regarded as a service of general economic 
interest, there arises the further question as to the lawfulness of the unilateral 
power granted to the company holding a monopoly to determine the fee to be paid 
by the agent. In the first place, the fee is not in fact determined in a clear and 
transparent way that does not go beyond what is necessary and is based on the 
costs and profits of an average well-managed undertaking, as is required, by 
contrast, in the absence of a competitive tendering procedure. In the second place, 
the statutory monopolist is necessarily led to abuse its dominant position, given 
that the agent may not terminate the contract without, by doing so, defaulting as 
regards the contracting local authority (contractor).