Order;Information — ECLI:EU:C:2023:327
Date: 2023-04-17
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Competition;Principles, objectives and tasks of the Treaties;Approximation of laws;Fundamental rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Translation C-560/22 – 1 
Case C-560/22 
Request for a preliminary ruling 
Date lodged:  
23 August 2022 
Referring court:  
Commissione tributaria regionale per il Friuli Venezia Giulia (Italy) 
Date of the decision to refer:  
30 June 2022 
Appellants:  
Ferriere Nord SpA 
SIAT – Società Italiana Acciai Trafilati SpA 
Acciaierie di Verona SpA 
Respondents:  
Autorità Garante della Concorrenza e del Mercato 
Agenzia delle Entrate – Riscossione 
  
[…] 
[…] [composition of the chamber hearing the case] 
on 15 June 2022, makes the following 
ORDER 
– on Appeal No […]  
brought by 
Ferriere Nord SpA – […] 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 30. 6. 2022 – CASE C-560/22 
 
2  
v 
Autorità Garante della Concorrenza e del Mercato (Italian competition authority)  
[…]  
Agenzia delle Entrate – Riscossione (Italian Revenue Agency – Collection) […] 
[…] 
Concerning the appeal against: 
- judgment No 118/2018 issued by the Commissione Tributaria Provinciale 
UDINE (Provincial Tax Court, Udine, Italy), Section 2, published on 11 April 
2018, and Others.  
[…] 
- on Appeal No […] 
brought by:  
SIAT Società Italiana Acciai Trafilati SpA – […] 
[…] 
- on Appeal No […] 
brought by: 
Acciaierie di Verona SpA […] 
[…] 
following discussion in public hearing 
RELEVANT FACTS AND POINTS OF LAW 
Order referring a question to the Court of Justice for a preliminary ruling. 
[…] [standard wording] 
Subject matter of the dispute and presentation of the relevant facts. 
Ferriere Nord SpA: […], SIAT SpA […] and Acciaierie di Verona SpA […], 
together ‘the companies’, lodged an appeal seeking alteration of the judgments 
made by the Provincial Tax Court, Udine dismissing the actions against the 
payment notices requesting payment of the contribution under Article 5-bis of L. 
27/2012 (Law No 27/2012) in respect of operating expenses of the Autorità 
Garante della Concorrenza e del Mercato (the Italian competition authority) for 
FERRIERE NORD AND OTHERS 
 
3 
the years from 2013 to 2018 (Acciaierie Verona SpA only for 2018), with writs of 
summons being issued to both the body imposing the charge, the Italian 
competition authority (AGCM), and the Agenzia delle Entrate – Riscossione 
(Italian Revenue Agency – Collection). The appellants asserted that they had not 
paid the contribution in question because they believed it was unlawful both under 
the provisions of the Italian Constitution and from the point of view of [EU] law. 
Both the AGCM and the Revenue Agency – Collection entered a defence in the 
proceedings at first instance, requesting that the actions be dismissed. 
In separate judgments of similar tenor, the Provincial Tax Court, Udine dismissed 
the actions brought by the companies, citing judgment No 269/17 of the Corte 
Costituzionale (Constitutional Court). 
1 – Legal context 
The legislative framework on the system of financing the AGCM introduced in 
2012. 
Article 5-bis, D.L. 24 gennaio 2012, n. 1 (c.d. ‘Decreto Cresci-Italia’) (Decree-
Law No 1 of 24 January 2012; ‘the Cresci-Italia Decree’), as amended by Legge 
di conversione 24 marzo 2012, n. 27 (Conversion Law No 27 of 24 March 2012), 
introduced a new system of financing for the AGCM (by means of the addition, to 
Article 10 of L. 287/90 (Law No 287/90), of paragraphs 7-ter and 7-quater). 
Since 1 January 2013, the AGCM has been financed through a ‘contribution’ 
(only) payable by companies (Italian or foreign, in the event that they have 
permanent branch offices in Italy that are subject to registration with the 
Companies’ Register) with total revenue exceeding EUR 50 million, equal to 0.08 
thousandths of the turnover indicated on the last balance sheet (from 2014, the 
‘contribution’ was reduced to the current 0.055 thousandths). 
The ‘contribution’ is not payable by companies with revenue of less than EUR 50 
million or by undertakings other than companies, irrespective of their revenue. 
2 – Case-law 
By judgment No 269/17, the Constitutional Court held […] that the choices of the 
legislature in devising the ‘contribution’ were neither arbitrary nor unreasonable, 
and were essentially specifically in consideration of the principle id quod 
plerumque accidit (the principle of the most probable outcome) characterising the 
AGCM’s supervisory (and sanctioning) activities. 
In particular, the Constitutional Court held that: 
‘10.1. the decision by the legislature to impose the contribution under 
consideration exclusively on undertakings that are distinguished by a significant 
presence in the markets cannot be considered constitutionally unlawful, because 
REQUEST FOR A PRELIMINARY RULING OF 30. 6. 2022 – CASE C-560/22 
 
4  
they have a particular structure and because they are characterised by a significant 
economic size: indeed, on the basis of the principle id quod plerumque accidit, 
these undertakings are the primary recipients of the [AGCM’s] activities and, 
therefore, the parties most responsible for the related expenditure … Nor is that 
legislative choice invalidated by the fact that the AGCM’s activities can 
sometimes also target entities not required to contribute, such as sub-threshold 
businesses, public authorities, undertakings without a permanent establishment in 
Italy or consumers themselves. In terms of effectiveness, the [AGCM] is 
predominantly engaged in supervising the economic activities of medium- and 
large-scale businesses, and this is sufficient to rule out any manifest 
unreasonableness of the legislation under consideration. 
10.2. Neither is it unreasonable to apply a specific level of turnover (EUR 50 
million) to determine the range of businesses subject to the contribution … 
Indeed, the levy under consideration … is intended to distribute the economic 
burdens relating to the provision of a public service (the protection of competition 
and the operation of the market) among the entities that justify the existence of a 
competition authority and on which most of its activity is focused.’ 
The Constitutional Court has also held that the national court must be able to 
exercise the prerogatives provided for in Article 267 TFEU regardless of whether 
‘its’ constitutional court has already ruled on the same issues before it, and that is 
true even in the case where that court has held that the regulations being examined 
do not conflict with the constitution. The same principle was upheld by the Court 
of Justice on 20 December 2017 in the following terms: 
‘Article 267(3) TFEU must be interpreted as meaning that a national court against 
whose decisions there is no judicial remedy is required, in principle, to refer a 
question for a preliminary ruling concerning the interpretation of EU law even if, 
in the course of the same national proceedings, the constitutional court of the 
Member State concerned has assessed the constitutionality of national rules in the 
light of regulatory parameters with content similar to rules under EU law’ 
(judgment of 20 December 2017, Case C-322/16, Global Starnet Ltd). 
3 – Grounds for the request for a preliminary ruling 
The referring court has doubts as to whether the application of the provisions laid 
down in Article 5-bis of Decree-Law No 1 of 24 January 2012 (known as ‘the 
Cresci-Italia Decree’), as amended by Conversion Law No 27 of 24 March 2012, 
which introduced a new system of financing the AGCM (by means of the 
addition, to Article 10 of Law No 287/90, of paragraphs 7-ter and 7-quater), is 
compatible with EU law, given that: 
- the ‘contribution’ was put in place to finance the AGCM’s institutional 
activities; 
- the AGCM pursues numerous aims, including overseeing the application of 
EU competition rules (primarily, Article 101 TFEU, which prohibits anti-
FERRIERE NORD AND OTHERS 
 
5 
competitive agreements) in cooperation with the European Commission, as can be 
seen clearly from Article 1(225) of Law No 287/1990; 
- in effect, Council Regulation (EC) No 1/2003 of 16 December 2002 on the 
implementation of the rules on competition laid down in Articles 81 and 82 of the 
Treaty (now Articles 101 and 102 TFEU) grants national antitrust authorities the 
power/duty to directly enforce EU competition law together with the European 
Commission (known as the decentralised enforcement system), and it is clear that 
the Italian legislation imposing the ‘contribution’ also pursues the aim of making 
the implementation of European legislation practicable under Article 51 of the 
Charter of Fundamental Rights of the European Union. 
The referring court has doubts as to the lawfulness under EU law of charging the 
‘contribution’ only to a small number of entities based on their legal 
characteristics and revenues, when in reality their legal and factual situation (for 
example, taking revenue as a parameter) is exactly the same (or similar) as that of 
the undertakings exempted from the ‘contribution’ because they have a turnover 
of less than EUR 50 million. 
Moreover, undertakings with revenue of less than EUR 50 million also 
continuously and quantitatively absorb the AGCM’s organisational and 
investigative resources. 
On the basis of the information in the case files, which is not disputed by the 
AGCM, whether we examine the penalties imposed in the 2012-2015 period or in 
the two-year period 2016-2017, undertakings with revenue of less than EUR 50 
million account for about half of the AGCM’s organisational and investigative 
resources. 
The levy as it is currently structured constitutes a surcharge on revenue entered in 
the balance sheet affecting only certain entities, whereas it should be established 
as partially commutative taxation determined according to the principle of 
proportionality, where the amount of the levy increases on a directly proportional 
basis in line with the increase in taxable income and the rate is constant. 
Conversely, the levy applies an exemption for sub-threshold undertakings only, 
since the method used to calculate the contribution payable stipulates that 
undertakings required to pay it do not benefit from the non-taxable limit, but must 
apply the rate to the entire amount of revenue and not to the portion exceeding 
EUR 50 million. 
4 – Questions referred for a preliminary ruling 
Accordingly, the following questions are referred to the Court of Justice of the 
European Union for a preliminary ruling: 
Can Article 5-bis of Decree-Law No 1 of 24 January 2012 (as amended by 
Conversion Law No 27 of 24 March 2012) – which added paragraphs 7-ter and 7-
quater to Article 10 of Law No 287/1990 – under which the institutional activities 
REQUEST FOR A PRELIMINARY RULING OF 30. 6. 2022 – CASE C-560/22 
 
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of the Italian competition authority are financed solely by a ‘contribution’ payable 
only by companies (Italian or foreign, in the event that they have branch offices 
with permanent representation in Italy that are subject to registration with the 
Companies’ Register) with total revenue exceeding EUR 50 million, which 
therefore does not affect to a fair and proportionate extent all market participants, 
for whose benefit (in addition to consumers) the activities of that authority are 
undertaken, be interpreted as being compatible with EU law, in particular: 
- Article 4(3) TEU (principle of sincere cooperation); 
- the principles underlying the internal market (including the right of 
establishment and free movement of capital); 
- Articles 101, 102 and 103 TFEU; 
- Council Regulation (EC) No 1/2003 of 16 December 2002 on the 
implementation of the rules on competition laid down in Articles 81 and 82 of the 
Treaty (now Articles 101 and 102 TFEU); 
- Directive (EU) 2019/1 of the European Parliament and of the Council of 
11 December 2018 to empower the competition authorities of the Member States 
to be more effective enforcers and to ensure the proper functioning of the internal 
market (in particular recitals 1, 6, 8, 17 and 26, Article 1(1), Article 2(10) and 
Article 5(1)); 
read in the light of Articles 17(1) (right to property), 20 (equality before the law), 
21(1) (non-discrimination) and 52(1) (principle of proportionality) of the Charter 
of Fundamental Rights of the European Union; 
and therefore must it be interpreted as meaning [that] the national legislation laid 
down in Article 5-bis of Decree-Law No 1 of 24 January 2012 (as amended by 
Conversion Law No 27 of 24 March 2012) – which added paragraphs 7-ter and 7-
quater to Article 10 of Law No 287/1990 – is contrary to EU law as stated above? 
[…] [stay of proceedings, instructions to the registry and standard wording]