Opinion of the Advocate General — ECLI:EU:C:2009:420
Date: 2009-07-02
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary concerning the first and third questions referred 113. To sum up, it must be said that there appears to be no justification for restrictions of the freedom to provide services such as those caused by the tax legislation at issue in the present case. 114. Of course, it should not be hastily concluded from this that Community law generally precludes all rules that impose charges specifically on tourists or on undertakings in the tourism sector, for example, measures relating to holiday homes or second homes, (78) tourist taxes or tourism-related charges on local businesses etc. The answer to the question always depends on the actual form taken by the measure, tax or levy in question. Differentiation between residents and non-residents may be justified if and in so far as it is appropriate and necessary with a view to a legitimate aim. 115. So far as the present case is concerned, it must however be observed that: Article 49 EC precludes legislation of an autonomous region under which a tax, based principally on environmental policy, on stopovers for tourist purposes by aircraft and recreational craft is imposed only on undertakings which have their tax domicile outside that region, but not on undertakings which have their tax domicile within that region. C - The questions concerning the definition of aid (second and fourth questions) 116. The second and fourth questions referred by the Italian Constitutional Court seek information on the definition of State aid within the meaning of Article 87(1) EC. In essence, the referring court would like to know whether regional legislation of an autonomous region which imposes a tax on stopovers for tourist purposes by aircraft and recreational craft only on undertakings which have a tax domicile outside that region constitutes State aid to undertakings carrying on the same business within that region. 117. The general provisions of the EC Treaty, including competition law, apply to sea and air transport. (79) Consequently tax legislation such as that of Sardinia, which relates specifically to stopovers by aircraft and recreational craft of operators whose tax domicile is outside Sardinia, must be assessed by reference to Article 87 EC. 1. Preliminary observation on the demarcation of competences between the Commission and the national courts in State aid law 118. Before giving a substantive opinion on the interpretation of Article 87 EC, it is necessary to clarify the position with regard to the demarcation of competences between the Commission and the national courts concerning that provision. 119. It has been held consistently that it falls within the exclusive competence of the Commission, subject to review by the Community judicature, to assess the compatibility of a State aid measure with the common market. (80) However, national courts may, in the area of State aid, have cause to interpret and apply the concept of aid contained in Article 87(1) EC. (81) 120. No doubt such proceedings are normally commenced by individuals who put forward a plea that State aid may not be granted before it is approved by the Commission (third sentence of Article 88(3) EC). However, it does not follow that the power of national courts to interpret and apply Article 87(1) EC would be confined to proceedings for obtaining individual legal protection. (82) 121. Aid measures within the meaning of Article 87(1) EC which are put into effect in infringement of the obligations arising from Article 88(3) EC are to be regarded generally as unlawful. (83) Any national court, including a constitutional court, is then required by Article 10 EC to do everything within its power to give effect to the prohibition of aid under Article 87(1) EC and to the duty of notification and the obligation not to put measures into effect under Article 88(3) EC. At the same time, national courts must abstain from any measure which could jeopardise the attainment of the objectives of the EC Treaty. 122. The national courts must therefore ensure that all appropriate conclusions are drawn from an infringement of the obligation not to put measures into effect (third sentence of Article 88(3) EC), in accordance with their national law, including a determination that legal measures giving effect to the aid are invalid. (84) Such conclusions may also be drawn in constitutional review proceedings, namely where the unlawful State aid measures were introduced by legislation. 2. The concept of aid 123. The categorisation of a measure as aid within the meaning of the EC Treaty requires that all four of the conditions set out in Article 87(1) EC be satisfied. (85) First, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition. (86) 124. Tax rules also fall within the definition of aid if they satisfy those four conditions. (87) Consequently, it is necessary now to determine whether tax rules such as those adopted by Sardinia must be regarded as aid within the meaning of Article 87(1) EC. a) Conferment of an advantage, including selectivity 125. In the present case, the third condition merits particular attention. The question is whether an advantage is conferred upon resident undertakings when the disputed regional tax is imposed only on non-residents when they stop over in Sardinia. 126. The concept of aid embraces not only positive benefits, such as subsidies, loans or the taking of shares in undertakings, but also action which, in various forms, mitigates the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect. (88) 127. It follows that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers, constitutes State aid within the meaning of Article 87(1) EC. (89) 128. In that connection, it is immaterial what legal mechanism is used. (90) The tax benefit may be based on the fact that the legislature has expressly exempted some undertakings from the tax in question, to which they would otherwise be subject. (91) Likewise the tax benefit may arise from the fact that a tax law is asymmetrically formulated in relation to its factual elements or its scope, (92) so that some undertakings are caught as taxpayers while others are not. The latter case applies here: the Sardinian legislation is worded in such a way that non-residents are subject to the tax on stopovers by private aircraft and recreational craft, but residents are not. 129. As resident undertakings are not subject to the regional tax at issue, they enjoy a cost advantage compared to their competitors resident outside Sardinia. This is also pointed out by the Italian Constitutional Court. 130. However, an advantage of that kind is caught by Article 87(1) EC only where it ‘[favours] certain undertakings or the production of certain goods’, that is to say aid which is selective. (93) 131. This selectivity may also be of a regional nature. 132. It is true that regional selectivity cannot be presumed merely because the measure in question was adopted by a regional authority such as Sardinia and therefore applies to only a part of the territory of a Member State. If that regional authority has sufficient autonomy in relation to the State to which it belongs, the area in which the regional authority exercises its powers constitutes the only relevant context for assessing whether the aid is selective. (94) Conversely however, it equally cannot be presumed that advantages conferred by a regional authority upon certain undertakings within the area in which it exercises its powers are not selective and therefore cannot be categorised as aid. (95) 133. With regard to determining whether a measure is selective, it is always necessary to ascertain in any particular case whether certain undertakings are favoured in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question. (96) A differentiation between undertakings in the context of a system of taxation or charges can also be justified not least by reference to the nature or overall structure of that system. (97) 134. In the last resort, therefore, the same questions arise with regard to the law of State aid as with regard to the fundamental freedoms, and there is no reason why the reply in relation to the latter should differ from the reply regarding the former. Rather, to avoid conflicting assessments as between the law of State aid and the law of fundamental freedoms, the same criteria must be applied in both cases. 135. Accordingly the following observations will be closely aligned with those concerning the freedom to provide services in the context of the first and third questions referred to the Court. 136. As I have already explained, according to the Autonomous Region of Sardinia itself, the tax legislation at issue pursues an environmental policy objective, which is to protect and renew environmental resources polluted by tourism, particularly in coastal areas. (98) 137. In relation to that specific aim, resident and non-resident operators of private aircraft and recreational craft find themselves in the same situation because the private aircraft and recreational craft stopping over in Sardinia pollute the environment irrespective of their provenance and the tax domicile of their operators. (99) 138. The differentiation made by the Sardinian regional legislature between resident and non-resident undertakings with regard to the tax liability on stopovers by private aircraft and recreational craft cannot therefore be justified on grounds of environment policy. (100) Nor is it justified, as I have already mentioned, by the nature or the overall structure of the tax system. (101) 139. Consequently tax rules such as those adopted by Sardinia satisfy the condition of a – selective – advantage for the purposes of Article 87(1) EC. 140. The fact that objectives of environmental or regional policy are pursued by that tax legislation does not exclude it from classification as aid for the purposes of Article 87(1) EC and does not prevent it from the outset from being reviewed for compliance with the aid requirements of the EC Treaty. (102) Article 87(1) EC does not make a distinction according to the causes or aims of measures of State intervention but defines them according to their effects. (103) 141. Environmental or regional policy aspects may, if necessary, be taken into account in relation to Article 87(3) EC when considering whether tax rules such as those of Sardinia are compatible with the common market, (104) and here again consistency with other legal areas, in particular the fundamental principles of the EC Treaty such as the freedom to provide services, must be borne in mind. (105) That question, of course, falls within the exclusive competence of the Commission, subject to review by the Community judicature. (106) b) The other criteria underlying the concept of aid within the meaning of Article 87(1) EC 142. I wish to add some brief observations concerning the other criteria underlying the concept of aid within the meaning of Article 87(1) EC. i) Intervention by a Member State or through State resources 143. Intervention by a Member State or through State resources is not necessarily effected by the central State authority of the respective Member State; it may equally be effected by an authority situated below the national level. Intervention by regional and local bodies may also constitute aid within the meaning of Article 87(1) EC. (107) 144. As already mentioned, those favoured by such intervention – in the present case, the undertakings which have their tax domicile in Sardinia – need not necessarily receive a monetary payment from State or regional authority resources. (108) An additional financial burden of any kind for the State or regional body to which the measure is attributable is sufficient for a presumption that it is financed by the State or through State resources. (109) 145. In imposing the tax at issue on non-residents, but not on residents, the Autonomous Region of Sardinia is indirectly renouncing tax revenue. Its revenue from the tax would necessarily be higher if the region taxed all stopovers by private aircraft and recreational craft. The renunciation of tax revenue by confining the tax liability to non-residents is sufficient for the presumption that finance is provided by the State or through State resources for the purposes of Article 87(1) EC. (110) ii) Likelihood of affecting trade between Member States 146. In addition, a measure falls within the scope of Article 87(1) EC only if it is likely to affect trade between Member States. In that connection, it is not necessary to establish that there is a real effect on trade between Member States, but only to examine whether that aid is liable to affect such trade. (111) Even a relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected. (112) 147. With regard to tax legislation, it is always to be presumed that trade between Member State is affected where those favoured by such legislation perform an economic activity in the field of cross-border trade or where it is conceivable that they are in competition with operators established in other Member States. (113) 148. In connection with the first and third questions referred, I have already explained that tax rules such as those of Sardinia have the effect of restricting the freedom to provide services (Article 49 EC), not least with regard to undertakings established in the nearby French island of Corsica. (114) Consequently such rules are also likely to affect trade between Member States for the purpose of Article 87(1) EC. iii) Risk of distortion of competition 149. Finally, a measure falls within the scope of Article 87(1) EC only if it distorts or threatens to distort competition. For that purpose, it is unnecessary to prove actual distortion of competition, but only to examine whether the measure is liable to distort competition. (115) 150. In principle, aid which is intended to release an undertaking from costs which it would normally have had to bear in its day-to-day management or normal activities, distorts the conditions of competition. (116) It is not necessary to carry out an economic analysis of the actual situation on the relevant market or to show the real effect of the aid at issue on prices. (117) 151. Tax legislation such as that of Sardinia spares resident undertakings from the tax on stopovers for tourist purposes by private aircraft and recreational craft. Therefore undertakings established in Sardinia do not have to bear, in the course of their normal business activities, a cost to which all other undertakings which have their tax domicile outside Sardinia are subject when their private aircraft and recreational craft stop over in Sardinia. 152. In view of the amount of the regional tax, which may be up to EUR 1 000 per stopover for aircraft and up to EUR 15 000 per year for boats, (118) the cost benefit for resident, compared with non-resident, undertakings is not exactly trivial. For non-residents it is correspondingly more difficult than for residents to use their private aircraft and recreational craft in order to provide or receive services in Sardinia. (119) 153. As I have already said in relation to the first and third questions referred, that cost advantage for resident undertakings cannot be said to be irrelevant, even taking into account their general tax burden. (120) 154. Overall, therefore, tax provisions such as those adopted by Sardinia are likely to lead to the distortion of competition for the purpose of Article 87(1) EC. 3. Summary concerning the second and fourth questions referred 155. To sum up, therefore, it must be stated that: Regional legislation such as that of the Autonomous Region of Sardinia, which imposes a tax on stopovers for tourist purposes by aircraft and recreational craft only on undertakings which have their tax domicile outside that region constitutes aid within the meaning of Article 87(1) EC in favour of undertakings carrying out the same activity and having their tax domicile within that region. VI – Conclusion 156. Against the background of the foregoing observations, I propose that the Court should reply to the questions referred to it by the Italian Constitutional Court as follows: (1) Article 49 EC precludes legislation of an autonomous region under which a tax, based principally on environmental policy, on stopovers for tourist purposes by aircraft and recreational craft is imposed only on undertakings which have their tax domicile outside that region, but not on undertakings which have their tax domicile within that region. (2) Regional legislation such as that of the Autonomous Region of Sardinia, which imposes a tax on stopovers for tourist purposes by aircraft and recreational craft only on undertakings which have their tax domicile outside that region constitutes aid within the meaning of Article 87(1) EC in favour of undertakings carrying out the same activity and having their tax domicile within that region. 1 – Original language: German. 2 – Also ‘the referring court’. 3 – Regione autonoma della Sardegna. 4 – Sea and Air Navigation Code. 5 – Recreational Sailing Code. 6 – Legislative decree. 7 – Disposizioni varie in materia di entrate, riqualificazione della spesa, politiche sociali e di sviluppo (miscellaneous provisions on revenue, reclassification of costs, social policy and development measures). 8 – The amendments follow from Article 3(3) of Law No 2 of the Region of Sardinia of 29 May 2007, ‘Disposizioni per la formazione del bilancio annuale e pluriennale della Regione – Legge finanziaria 2007’ (Provisions on the annual and long-term budget of the Region – Finance Law 2007). According to the order for reference, the amendments were made ‘with effect from 31 May 2007’ (Article 37 of the last-mentioned Law). 9 – The amendments arise from Article 2(15) of Law No 3 of the Region of Sardinia of 5 March 2008, ‘Disposizioni per la formazione del bilancio annuale e pluriennale della Regione – Legge finanziaria 2008’ (Provisions on the preparation of the annual and long-term budget of the Region – Budget Law 2008). The provisions were then completely repealed by Paragraph 2(15) of Law No 1 of the Region of Sardinia of 14 May 2009, ‘Disposizioni per la formazione del bilancio annuale e pluriennale della Regione – Legge finanziaria 2009’ (Provisions for the preparation of the annual and long-term budget of the Region – 2009 Finance Law). 10 – The proceedings arise from two constitutionality applications, No 91/2006 and No 36/2007, which were originally joined by the Constitutional Court. In the meantime it delivered its judgment No 102/2008 on 13 April 2008, which gives a decision on application No 91/2006 and part of application No 36/2007. The part of the latter which is of interest in the present case was again separated from the rest of the proceedings in the same judgment. 11 – The full wording of the order may be found in Italian on the internet site of the Italian Constitutional Court at www.cortecostituzionale.it (last visited on 28 April 2009). 12 – See Corte costituzionale (Italy), order 536 of 15/29 December 1995 (reproduced in Il Foro Italiano 1996, I, p. 783). That practice of the Italian Constitutional Court attracted some criticism; see in particular A. Tizzano, ‘Ancora sui rapporti tra Corti europee: principi comunitari e c.d. controlimiti costituzionali’, Il Diritto dell’ Unione Europea 3/2007, p. 734 (742 et seq.); and by the same author, ‘Corte e Corte di guistizia’, Il Foro Italiano 2006, p. 348 (352). 13 – Already in quite a number of cases national constitutional courts have referred questions of Community law to the Court for a preliminary ruling. The judgments of 8 November 2001 in Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (‘Adria-Wien Pipeline’) [2001] ECR I-8365, of 8 May 2003, in Case C-171/01 Wählergruppe Gemeinsam [2003] ECR I-4301 and of 20 May 2003, in Joined Cases C-465/00, C-138/01 and C-139/01 Oesterreichischer Rundfunk and Others {2003] ECR I-4989 were delivered at the request of the Austrian Consitutional Court. The judgment of 16 July 1998 in Case C-93/97 Fédération belge des chambres syndicales de médecins [1998] ECR I-4837, the order of 1 October 2004 in Case C-480/03 Clerens, not published in ECR, and the judgments of 26 June 2007 in Case C-305/05 Ordre des barreaux francophones et germanophone and Others[2007] ECR I-5305, of 1 April 2008 in Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I-0000 were delivered or made at the request of the Belgian Consitutional Court; Cases C-73/08 Bressol and Others and C-389/08 Base and Others are still pending. Most recently, at the request of the Lithuanian Consitutional Court (Lietuvos Respublikos Konstitucinis Teismas), the Court of Justice delivered the judgment of 9 October 2008 in Case C-239/07 Sabatauskas and Others [2008] ECR I-0000. 14 – In that connection, the Constitutional Court refers to its case law on the basis of judgments No 7/2004, No 166/2004, No 406/2005, No 129/2006 and No 348/2007. 15 – In order to give the referring court a helpful reply to its request for a preliminary ruling, the Court of Justice may also consider provisions of Community law to which the national court has not referred in its question (Case C-241/89 SARPP [1990] ECR I-4695, paragraph 8, and Case C-275/06 Promusicae [2008] ECR I‑271, paragraph 42). Only where it is clear from the documents before the Court that the referring court deliberately refuses to seek from the Court a ruling on the interpretation of Community law will the Court refrain from considering the provision in question (Case 247/86 Alsatel [1988] ECR 5987, paragraphs 7 and 8). In the present case, however, it is not clear that the Italian Constitutional Court deliberately intended to exclude Article 50 EC from the scope of its request for a preliminary ruling. Rather, the referring court seeks, as does the applicant in the constitutionality proceedings, a comprehensive assessment of the Sardinian tax rules by reference to the criteria of the freedom to provide services. This necessitates examination not only of Article 49 EC, but also Article 50 EC, which supplements and illustrates the former provision. 16 – See also Case C-355/00 Freskot [2003] ECR I‑5263, paragraph 54, and Case C‑281/06 Jundt [2007] ECR I‑12231, paragraph 28. 17 – It should be borne in mind that, in relation to the factual and legal context of the questions referred for a preliminary ruling, the Court has to proceed from the findings of the referring court. It is not for the Court of Justice, in the context of a reference for a preliminary ruling, to rule on the interpretation of national provisions or to decide whether the referring court’s interpretation thereof is correct (settled case-law, see Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 42, and Case C-244/06 Dynamic Medien [2008] ECR I-505, paragraph 19). 18 – This is emphasised by the referring court with its reference to the Community-law definition of ‘business aviation’ in Article 2(1) of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1), as amended by Regulation (EC) No 793/2004 (OJ 2004 L 138, p. 50, which defines ‘business aviation’ as ‘that sector of general aviation which concerns the operation or use of aircraft by companies for the carriage of passengers or goods as an aid to the conduct of their business, where the aircraft are flown for purposes generally considered not for public hire …’ (emphasis added). 19 – Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraphs 10 and 16; Case C-262/02 Commission v France [2004] ECR I‑6569, paragraph 22; Case C-429/02 Bacardi France [2004] ECR I‑6613, paragraph 31; and Case C‑76/05 Schwarz and Gootjes-Schwarz [2007] I‑6849, paragraph 36. 20 – According to settled case-law, tourists have the freedom to go to another Member State in order to receive a service there, see Luisi and Carbone, cited in footnote 19, paragraph 16; Case 186/87 Cowan [1989] 195, paragraph 15; Case C-274/96 Bickel and Franz [1998] I‑7637, paragraph 15 in conjunction with paragraph 4; and Case C-388/01 Commission v Italy [2003] I‑721, paragraph 12. 21 – As the services in question are not transport services, Article 51(1) EC does not preclude the application of Articles 49 EC and 50 EC. In any case, the principle of freedom to provide services applies in the air transport sector (Case C-70/99 Commission v Portugal [2001] ECR I‑4845, paragraphs 21 and 22, and Case C‑92/01 Stylianakis [2003] ECR I‑1291, paragraphs 23 to 25, both with reference to Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8). 22 – See, in particular, the examples of the commercial use of recreational craft set out in Article 2(1) of the Codice della nautica da diporto (reproduced in paragraph 13 of this opinion). 23 – For the classification of leasing as a service, see Case C-294/97 Eurowings Luftverkehr [1999] ECR I‑7447, paragraph 33; for the classification of leasing out a vehicle as a service, Case C-451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 18; for the treatment of a sailing boat used for sport purposes as a form of transport, see Case 51/88 Hamann [1989] ECR 767, paragraphs 16 and 17. 24 – Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraphs 13 and 15; Case C-208/05 ITC [2007] I‑181, paragraph 56; and Case C-380/05 Centro Europa 7 [2008] ECR I‑349, paragraph 65. 25 – Case 52/79 Debauve and Others [1980] ECR 833, paragraph 9, and Case C-41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 37; see, to the same effect in relation to the freedom of movement of persons, Gouvernement de la Communauté française and Gouvernement wallon, cited in footnote 13, in particular paragraph 33. 26 – A similar situation arose in the Gouvernement de la Communauté française and Gouvernement wallon case (cited in footnote 13, see in particular paragraphs 41 and 42), where the legislation of a Belgian regional authority concerning the care insurance scheme distinguished between residents and non-residents. 27 – A similar situation arose in the ITC case (cited in footnote 24, paragraph 56 et seq.), which concerned the procurement by German agencies of employment for German clients in other countries. 28 – See also Case C-381/93 Commission v France [1994] I‑5145, paragraph 15: ‘not only are intra-Community maritime transport services frequently supplied to recipients established in a different Member State from that of the provider of the services, but those services are also by definition offered at least in part on the territory of a Member State other than that in which the provider of the services is established.’ 29 – Case C-398/95 SETTG [1997] I‑3091, paragraph 8. 30 – The same applies to the berths, mooring places and rigged moorings referred to in Article 4(2)(b) of Regional Law No 4/2006. 31 – See what is said at paragraphs 35 and 36 above. 32 – Where the services in question are transport services in the sector of maritime transport, the principle of freedom to provide services would also apply to them (see Articles 51(1) EC and 80(2) EC in conjunction with Article 1(1) of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, OJ 1986, L 378, p. 1). See also Commission v France, cited in footnote 28, paragraph 13; Joined Cases C-430/99 and C‑431/99; Sea-Land Service and Others [2002] ECR I‑5235, paragraphs 30 to 32; Case C‑435/00 Geha Naftiliaki and Others [2002] ECR I‑10615, paragraph 20; and Case C-269/05 Commission v Greece [2007] ECR I-0000, paragraphs 19 to 21. 33 – See, to that effect, Case C-234/01 Gerritse [2003] ECR I‑5933, paragraph 28; compare also Case C-279/93 Schumacker [1995] ECR I‑225, paragraphs 28 and 29; Case C‑29/95 Pastoors and Trans-Cap [1997] ECR I‑285, paragraphs 17 and 18; Case C-224/97 Ciola [1999] I‑2517, paragraph 14; and Case C-332/05 Celozzi [2007] ECR I‑563, paragraph 26. 34 – Similarly Commission v Portugal, cited in footnote 21, paragraphs 26 and 27. Also in Gouvernement de la Communauté française and Gouvernement wallon, cited in footnote 13, paragraphs 45 to 54, the rules of a Belgian regional authority which differentiated according to the place of residence were not regarded as indirect discrimination on the ground of nationality, but examined from the viewpoint of the restriction of fundamental freedoms. 35 – Case C-244/04 Commission v Germany [2006] ECR I‑885, paragraph 31; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 63; and Case C‑518/06 Commission v Italy [2009] ECR I-0000, paragraph 62; see also Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12; Commission v France, cited in footnote 19, paragraph 22; Bacardi France, cited in footnote 19, paragraph 31. 36 – Case C-17/00 De Coster [2001] ECR I‑9445, paragraphs 26 and 27, and Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 36; similarly, Case C‑290/04 FKP Scorpio Konzertproduktionen [2006] ECR I‑9461, paragraphs 46 and 47. 37 – Of course, this may be different if the tax or duty is so prohibitive that, by its nature, it amounts to a prohibition on carrying out an activity; see my Opinion in Viacom Outdoor, cited in footnote 36, paragraph 63. 38 – Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile (‘Mobistar’) [2005] ECR I‑7723, paragraph 31. See further my Opinion in Viacom Outdoor, cited in footnote 36, paragraphs 58 to 67. 39 – This element of the different treatment of cross-border and internal situations distinguishes the present case from, for example, Viacom Outdoor, cited in footnote 36, in particular paragraph 37, and Mobistar, cited in footnote 38, in particular paragraphs 32 and 33. 40 – See paragraph 40 above and the cases cited in footnotes 24 and 25. 41 – For similar situations in connection with other fundamental freedoms, see Gouvernement de la Communauté française and Gouvernement wallon, cited in footnote 13, in particular paragraphs 41 and 42, and Case C-72/03 Carbonati Apuani [2004] ECR I‑8027, in particular paragraph 26; in those cases also the Court assessed by reference to the fundamental freedoms of the internal market measures confined within a single Member State, the scope of which was limited to a part of the territory of that State. 42 – See above, paragraph 47 of this Opinion. 43 – Mobistar, cited in footnote 38, paragraph 30, and Schwarz and Gootjes-Schwarz, cited in footnote 19, paragraph 67; to the same effect, Commission v France, cited in footnote 28, paragraph 17; Case C-158/96 Kohll [1998] ECR I‑1931, paragraph 33; De Coster, cited in footnote 36, paragraph 30; Case C-372/04 Watts [2006] ECR I-4325, paragraph 94; and Centro Europa 7, cited in footnote 24, paragraph 65. 44 – Commission v France, cited in footnote 19, paragraph 23, and Bacardi France, cited in footnote 19, paragraph 32; on justification for imperative reasons relating to the public interest, see Säger, cited in footnote 35, paragraph 15; SETTG, cited in footnote 29, paragraph 21; and Case C-341/05 Laval un Partneri [2007] ECR I‑11767, paragraph 114; to the same effect, Case 33/74 van Binsbergen [1974] ECR 1299, paragraph 12. 45 – The wording of the law has in any case only contained an express reference to the environment since its amendment in 2008 – which is not the subject of these proceedings; the official title of Paragraph 4 of the Regional law No 4/2006 was then changed to the following: ‘Tassa regionale per la tutela e la sostenibilità ambientale’ (Regional tax for environmental protection and sustainability; cf. Paragraph 2(15a) of the Budget Law of 2008 for the Region of Sardinia). In the media, on the other hand, the term ‘luxury tax’ has been coined for the disputed tax rules (see, for example, the article by Pinna, A., in Corriere della Sera, 2 June 2006, entitled ‘Sardegna, tassa del lusso. Gates non prenota’). 46 – The wording of Article 37 of the Charter of Fundamental Rights of the European Union is similar. 47 – See, for example, Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 9; Case C‑2/90 Commission v Belgium [1992] ECR I‑4431, paragraphs 32 to 36; Case C-463/01 Commission v Germany ECR [2004] I-11705, paragraph 75; Case C-309/02 Radlberger Getränkegesellschaft and Others [2004] ECR I‑11763, paragraph 75; Case C-320/03 Commission v Austria [2005] I‑9871, paragraph 70; and Case C-524/07 Commission v Austria [2008] ECR I-0000, paragraph 57. 48 – Settled case-law, see Case C-150/04 Commission v Denmark [2007] ECR I‑1163, paragraph 46; Gouvernement de la Communauté française and Gouvernement wallon, cited in footnote 13, paragraph 55; and Case C-222/07 UTECA [2009] ECR I-0000, paragraph 25; regarding in particular the freedom to provide services, see also Säger, cited in footnote 35, paragraph 15; Commission v France, cited in footnote 19, paragraph 24; Bacardi France, cited in footnote 19, paragraph 33; and Laval un Partneri, cited in footnote 44, paragraph 101. 49 – Case C-500/06 Corporación Dermoestética [2008] ECR I-0000, paragraphs 39 and 40; Case C‑169/07 Hartlauer [2009] ECR I-0000, paragraph 55; also Case C‑531/06 Commission v Italy [2009] ECR I-0000, paragraph 66, and Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-0000, paragraph 42. 50 – On that point, see my Opinion in Case C-254/08 Futura Immobiliare [2009] ECR I‑0000, paragraph 30. 51 – See, to the same effect, my Opinion in Futura Immobiliare, cited in footnote 50, paragraph 66, in which I observed that it would be inconsistent with the ‘polluter pays’ principle to exempt certain groups directly, on the ground of poverty or reduced ability to pay, from the costs incurred by the environmental pollution they cause. 52 – See my Opinion in Future Immobiliare, cited in footnote 50, paragraph 32, and the Opinion of Advocate General Jacobs in Case C-126/01 GEMO [2003] ECR I‑13769, paragraph 66. 53 – Article 4(6)(b) of Regional Law No 4/2006. 54 – Schumacker, cited in footnote 33, paragraphs 30 to 34; Gerritse, cited in footnote 33, paragraphs 43 and 44; Case C-169/03 Wallentin [2004] ECR I‑6443, paragraphs 15 and 16; Case C-346/04 Conijn [2006] ECR I‑6137, paragraph 16; Case C-170/05 Denkavit Internationaal and Denkavit France [2006] ECR I‑11949, paragraphs 23 and 24; Case C-182/06 Lakebrink and Peters-Lakebrink [2007] ECR I‑6705, paragraphs 28 and 29; and Case C-282/07 Truck Center [2008] ECR I‑0000, paragraphs 38 and 39. 55 – Such differences were expressly noted by the Court in, for example, Schumacker, cited in footnote 33, paragraphs 32 and 33, and Truck Center, cited in footnote 54, paragraphs 40 to 50; see also Case C-265/04 Bouanich [2006] ECR I‑923, paragraph 39. 56 – Gerritse, cited in footnote 33, paragraphs 27 and 53; Wallentin, cited in footnote 54, paragraphs 17 to 20; Bouanich, cited in footnote 55, paragraphs. 40 and 41; Conijn, cited in footnote 54, paragraphs 20 and 24; Denkavit Internationaal and Denkavit France, cited in footnote 54, paragraph 25; and Lakebrink and Peters-Lakebrink, cited in footnote 54, paragraphs 30 to 35. 57 – See, to that effect, Case 6/71 Rheinmühlen Düsseldorf [1971] ECR 823, paragraph 14, and Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I‑0000, paragraph 26. 58 – See paragraph 73 of this Opinion. 59 – In that respect the present case differs from, for example, Commission v Belgium, cited in footnote 47, paragraphs 34 to 36, in which an objective distinction was made between domestic and foreign products with regard to certain environmental policy principles recognised at Community level. 60 – The documents before the Court show that the Autonomous Region of Sardinia is entitled to most of the income tax and value added tax revenue raised there. Pursuant to Article 8 of Constitutional Law No 3 of 26 February 1948, as amended by Law No 296 of 27 December 2006, the Special Statute for the Region of Sardinia (Statuto speciale della Regione Sardegna), provides that seven tenths of the income tax from Sardinian taxpayers and nine tenths of the value added tax raised by consumption in the region is appropriated to the region’s budget. 61 – Case 270/83 Commission v France [1986] ECR 273, paragraph 21; Case C-385/00 De Groot [2002] ECR I‑11819, paragraph 97; and Lakebrink and Peters-Lakebrink, cited in footnote 54, paragraph 24; a similar point is made in Carbonati Apuani, cited in footnote 41, paragraph 34. 62 – However, non-residents also make a certain contribution to the tax revenue of the Autonomous Region of Sardinia through the value added tax on their local consumption. This was conceded by the Autonomous Region in the proceedings before the Court. 63 – Corporación Dermoestética, cited in footnote 49, paragraph 37; see also Hartlauer, cited in footnote 49, paragraph 46. 64 – Case C-524/07 Commission v Austria, cited in footnote 47, paragraph 56. 65 – See paragraphs 61 to 90 of this Opinion. 66 – Any such risk would have to be judged according to criteria similar to those relating to a threat to public safety or public policy, see settled case-law, as shown in Orfanopoulos and Oliveri, cited in footnote 17, paragraph 66. 67 – Case C-490/04 Commission v Germany, cited in footnote 35, paragraph 86, and Laval un Partneri, cited in footnote 44, paragraph 117. 68 – Settled case-law since Case C-300/90 Commission v Belgium [1992] ECR I‑305, paragraphs 14 to 21, and Case C-204/90 Bachmann [1992] ECR I‑249, paragraphs 21 to 28; see, more recently, Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 68; Jundt, cited in footnote 16, paragraph 67; Case C-157/07 Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt [2008] ECR I-0000, paragraph 43; and Case C-418/07 Papillon [2008] ECR I-0000, paragraph 43. 69 – Case C-55/98 Vestergaard [1999] ECR I‑7641, paragraph 24; Commission v Italy, cited in footnote 20, paragraphs 23 and 24; Case C-319/02 Manninen [2004] ECR I‑7477, paragraph 42; Commission v Denmark, cited in footnote 48, paragraph 70; Test Claimants in the Thin Cap Group Litigation, cited in footnote 68, paragraph 68; and Jundt, cited in footnote 16, paragraph 68. 70 – Manninen, cited in footnote 69, paragraph 43; earlier, to the same effect, Case C‑9/02 de Lasteyrie du Saillant [2004] ECR I‑2409, paragraph 67. 71 – See paragraph 88 of this Opinion. 72 – For the criterion of a too general and indirect connection, see Jundt, cited in footnote 16, paragraph 70, and Eurowings, cited in footnote 23, paragraph. 42; also similar is Commission v Italy, cited in footnote 20, paragraph. 24 73 – Declaration No 30 of the Final Act of the Treaty of Amsterdam (OJ 1997 C 340, p. 136). 74 – Neophytes and neozoa are animal and plant species which are introduced by humans, consciously or unconsciously, directly or indirectly, into areas where they do not naturally occur. 75 – The economic policy of the Member States and the Community must be in accordance with the principle of an open market economy pursuant to Articles 4(1) EC and 98 EC; see also Case C‑198/01 CIF [2003] ECR I-8055, paragraph 47. 76 – See Case C-35/98 Verkooijen [2000] ECR I‑4071, paragraph 48, and Commission v Italy, cited in footnote 20, paragraph 22; also, specifically in relation to the freedom to provide services, SETTG, cited in footnote 29, paragraph 23, and Kohll, cited in footnote 43, paragraph 41. 77 – See, for example, Case C-209/03 Bidar [2005] ECR I‑2119, paragraphs 56, 57, 59 and 60; Case C-213/05 Geven [2007] ECR I‑6347, paragraphs 29 and 30; Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I‑9161, paragraph 43, and Case C-499/06 Nerkowska [2008] ECR I‑3993, paragraphs 37 to 39; see also my Opinion in Case C-192/05 Tas-Hagen and Tas [2006] ECR I‑10451, paragraphs 60 to 63, and the Opinion of Advocate General Mazák in Case C-103/08 Gottwald [2009] ECR I-0000, paragraphs 58 to 72. 78 – For restrictions on the construction of second homes, see Case C-213/04 Burtscher [2005] ECR I-10309, in particular paragraph 46. 79 – Case 167/73 Commission v France [1974] ECR 359, paragraphs 24 to 32, and Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraphs 44 and 45. 80 – Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraph 9; Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon (‘Salmon’) [1991] ECR I-5505, paragraph 14; Case C‑368/04 Transalpine Ölleitung in Österreich [2006] ECR I‑9957, paragraph 38; Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraphs 51, 52 and 62; and Case C-333/07 Régie Networks [2008] ECR I-0000, paragraph 94, last half-sentence, and paragraph 125. 81 – Steinike & Weinlig, paragraph 14, Salmon, paragraph 10, and Lucchini, paragraph 50, all cited in footnote 80. 82 – Consequently the Court frankly describes the jurisdiction of national courts and, in Lucchini, cited in footnote 80, paragraph 50, first sentence, uses the words ‘in particular’. 83 – Salmon, cited in footnote 80, paragraph 17; Joined Cases C-266/04 to C-270/04, C‑276/04 and C-321/04 to C-325/04, Distribution Casino France and Others [2005] ECR I‑9481, paragraph 30; Case C-526/04 Laboratoires Boiron [2006] ECR I‑7529, paragraph 29, and Transalpine Ölleitung in Österreich, cited in footnote 80, paragraph 40; see also the definition of unlawful aid in Article 1(f) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). 84 – Case C-199/06 Centre d’exportation du livre français [2008] I‑469, paragraphs 40 and 41. 85 – Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg (‘Altmark Trans’) [2003] ECR I‑7747, paragraph 74; Case C-237/04 Enirisorse [2006] ECR I‑2843, paragraph 38; UTECA, cited in footnote 48, paragraph 42; and Case C‑431/07 P Bouygues and Others v Commission [2009] ECR I-0000, paragraph 101; see, to the same effect, Case C-142/87 Belgium v Commission (‘Tubemeuse’) [1990] I‑959, paragraph 25. 86 – Altmark Trans, cited in footnote 85, paragraph 75; Enirisorse, cited in footnote 85, paragraph 39; UTECA, cited in footnote 48, paragraph 42; and Bouygues and Others v Commission, cited in footnote 85, paragraph 102; see, to the same effect but formulated slightly differently, Joined Cases C-393/04 and C-41/05 Air Liquide Industries Belgium [2006] I‑5293, paragraph 28. 87 – Case 173/73 Italy v Commission [1974] ECR 709, paragraph 28, makes it clear that a measure does not fall outside the scope of Article 87 EC (formerly Article 92 EEC) merely because it is possibly of the nature of a tax provision; see also Case C-156/98 Germany v Commission [2000] ECR I‑6857, paragraph 26; Case C‑172/03 Heiser [2005] ECR I‑1627, paragraphs 27 to 58; Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 86; and Case C-487/06 P British Aggregates v Commission [2008] ECR I‑0000, paragraph 92. 88 – Germany v Commission, cited in footnote 87, paragraph 25; Belgium and Forum 187 v Commission, cited in footnote 87, paragraph 86; and Case C-526/04 Laboratoires Boiron [2006] ECR I‑7529, paragraphs 33 to 35; see, to the same effect, Case C-387/92 Banco Exterior de España [1994] ECR I‑877, paragraph 13. 89 – Banco Exterior de España, cited in footnote 88, paragraph 14, and Belgium and Forum 187 v Commission, cited in footnote 87, paragraph 87; see, to the same effect, Germany v Commission, cited in footnote 87, paragraph 26. 90 – British Aggregates v Commission, cited in footnote 87, paragraph 89, last sentence. 91 – Banco Exterior de España, cited in footnote 88, paragraph 14; Case C-6/97 Italy v Commission [1999] ECR I‑2981, paragraph 16; Case C-75/97 Belgium v Commission (‘Maribel’) [1999] ECR I‑3671, paragraphs. 23 and 24; and Belgium and Forum 187 v Commission, cited in footnote. 87, paragraph 87. 92 – Case C-53/00 Ferring [2001] ECR I‑9067, paragraph 20; Laboratoires Boiron, cited in footnote 88, paragraph 34; and British Aggregates v Commission, cited in footnote 87, paragraph 89. 93 – Case C-66/02 Italy v Commission [2005] ECR I‑10901, paragraph 94; Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 52; and British Aggregates v Commission, cited in footnote 87, paragraph 82. 94 – Portugal v Commission, cited in foot-note 93, paragraphs 57, 58, 60 and 61, and Case C-428/06 UGT-Rioja and Others [2008] ECR I-0000, paragraphs 47 and 48. 95 – Portugal v Commission, cited in footnote 93, paragraphs 55, 60 and 62; see, to the same effect, Case 248/84 Germany v Commission [1987] ECR 4013, paragraph 17. 96 – Adria-Wien Pipeline, cited in footnote 13, paragraph 41; Portugal v Commission, cited in footnote 93, paragraph 54; UGT-Rioja and Others, cited in footnote 94, paragraph 46; and British Aggregates v Commission, cited in footnote 87, paragraph 82. 97 – Portugal v Commission, cited in footnote 93, paragraph 52; see, to the same effect, settled case-law since Italy v Commission, cited in footnote 87, paragraph 33, for example, Adria-Wien Pipeline, cited in footnote 13, paragraph 42; Ferring, cited in footnote 92, paragraph 17; Joined Cases C-128/03 and C-129/03 AEM and AEM Torino [2005] ECR I‑2861, paragraph 39; Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 51 and Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraphs 137 and 138. 98 – See paragraphs 62 to 67 above. 99 – See paragraphs 73 and 81 above. 100 – See paragraphs 71 to 77 above and, to the same effect, Adria-Wien Pipeline, cited in footnote 13, paragraph 52. 101 – See above, in particular paragraphs 78 to 90 and 98 to 102. 102 – British Aggregates v Commission, cited in footnote 87, paragraphs 84 and 86; see also, to the same effect in relation to measures based on social policy, Case C‑241/94 France v Commission [1996] ECR I-4551, paragraph 21; Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 23; and Maribel, cited in footnote 91, paragraph 25. 103 – Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 79; France v Commission, cited in footnote 102, paragraph 20; Maribel, cited in footnote 91, paragraph 25; and British Aggregates v Commission, cited in footnote 87, paragraph 85, 87 and 89. 104 – British Aggregates v Commission, cited in footnote 87, paragraph 92. 105 – See my Opinion in Régie Networks, cited in footnote 80, paragraphs 97 and 117. 106 – See the cases cited in footnote 80. 107 – Germany v Commission, cited in footnote 95, paragraph 17, and Portugal v Commission, cited in footnote 93, paragraph 55. 108 – See paragraph 126 above and the cases cited in footnote 88. 109 – Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993] ECR I‑887, paragraph 21; Case C‑200/97 Ecotrade [1998] ECR I‑7907, paragraph 35; Case C-295/97 Piaggio [1999] ECR I‑3735, paragraph 35; and Case C-345/02 Pearle and Others [2004] ECR I‑7139, paragraph 36. 110 – For the renunciation of tax revenue as financing through State resources, see Germany v Commission, cited in footnote 87, paragraphs 26 and 28; see similarly Banco Exterior de España, cited in footnote 88, paragraph 14; Italy v Commission, cited in footnote 91, footnote 16; and Belgium and Forum 187 v Commission, cited in footnote 87, paragraph 87). 111 – Italy v Commission, cited in footnote 93, paragraph 111; Cassa di Risparmio di Firenze, cited in footnote 97, paragraph 140; and Case C-494/06 P Commission v Italy and WAM [2009] ECR I-0000, paragraph 50. 112 – Tubemeuse, cited in footnote 85, paragraph 43; Altmark Trans, cited in footnote 85, paragraph 81; Heiser, cited in footnote 87, paragraphs 32 and 33; and Air Liquide Industries Belgium, cited in footnote 86, paragraph 36. 113 – Commission v Italy and WAM, cited in footnote 111, paragraph 51; see, to the same effect, Heiser, cited in footnote 87, paragraph 35, and Portugal v Commission, cited in footnote 93, paragraph 91. 114 – See paragraphs 48 to 53 above, and – specifically in a cross-border context – paragraphs 40 to 45 above. 115 – See the cases cited in footnote 111 above. 116 – Germany v Commission, cited in footnote 87, paragraph 30; Heiser, cited in footnote 87, paragraph 55; and Commission v Italy and WAM, cited in footnote 111, paragraph 54. 117 – Commission v Italy and WAM, cited in footnote 111, paragraph 58. 118 – For the detailed provisions, see Article 4(5) in conjunction with (4) of Regional Law No 4/2006, set out in paragraph 14 above. 119 – See also paragraphs 52 and 53 above. 120 – See paragraphs 83 to 89 and 98 to 102 above.