Order — ECLI:EU:C:2019:331
Date: 2019-04-30
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Translation C-26/19 - 1 
Case C-26/19 
Request for a preliminary ruling 
Date lodged: 
15 January 2019 
Referring court: 
Commissione tributaria provinciale di Modena (Italy) 
Date of the decision to refer: 
25 October 2018 
Applicant: 
Azienda USL di Modena 
Defendant: 
Comune di Sassuolo 
  
THE COMMISSIONE TRIBUTARIA PROVINCIALE 
DI MODENA  
(PROVINCIAL TAX COURT, MODENA, ITALY)  [...] 
[...] 
makes the following 
ORDER 
- in Case No 882/2017 
[...] 
- contesting TAX ASSESSMENT NOTICE No. [...] 
against: 
COMUNE DI SASSUOLO 
EN 
REQUEST FOR A PRELIMINARY RULING OF 25.10.2018 – CASE C-26/19 
 
2  
[...] 
brought by the applicant: 
AZIENDA U.S.L. DI MODENA 
[...] 
represented by: 
[...] 
- in action No 883/2017 
[...] 
- contesting TAX ASSESSMENT NOTICE No. [...] 
against: 
COMUNE DI SASSUOLO 
[...] 
brought by the applicant: 
AZIENDA U.S.L. DI MODENA 
[...] 
[Or.2] 
[...] 
[Or.3] 
 
(A) FACTS AND SUBJECT MATTER OF THE DISPUTE 
1. The Azienda Unità Sanitaria Locale di Modena (‘the AUSL’) — a public 
body which provides healthcare services — is the owner of a property in Sassuolo 
[...] called ‘Nuovo Ospedale’ (New Hospital), which was leased at EUR 2 181 
600.00 per annum to the company ‘Ospedale di Sassuolo S.p.A.’. 
2. The ‘Ospedale di Sassuolo S.p.A.’, which has mixed public and private 
ownership (51% of its capital is public, held by the AUSL, with the remaining 
49% made up of private capital), provides, in the building called ‘Nuovo 
AZIENDA USL DI MODENA 
 
3 
Ospedale’, healthcare services both independently and under an agreement with 
the AUSL. 
3. The Comune di Sassuolo (Municipality of Sassuolo), the local authority to 
which the tax is due, sent to AUSL, as the owner of the building ‘Nuovo 
Ospedale’, two tax assessment notices for the recovery of unpaid Imposta 
Municipale Unica (single municipal tax; ‘IMU’) for the years 2012 and 2013. 
4.  It should be noted that the IMU is a wealth tax for which the chargeable 
event — in accordance with Article 1(2) of Decreto Legislativo 14 marzo 2011 n. 
23 (Legislative Decree No 23 of 14 March 2011) which established it — is the 
‘possession of real estate other than one’s principal place of residence’. 
5. By separate actions — later joined before the Commissione Tributaria 
Provinciale di Modena (Provincial Tax Court, Modena, Italy) — the AUSL 
challenged the two tax assessments, claiming that it did not owe the tax claimed 
on account of Article 9(8) of the abovementioned Legislative Decree No 23, 
which provides for a specific exemption for real estate belonging to ‘bodies of the 
national health service, which is intended to be used exclusively for the 
performance of statutory tasks’ and because the Comune di Sassuolo did not 
respond to the ‘ordinary’ tax ruling sought previously under Article 11 of Legge. 
27 luglio 2000 n. 212 (Law No 212 of 27 July 2000), the Comune thereby being 
bound by the interpretation of the tax provision that favours the tax payer. 
(B) RELEVANT LAW 
[Or.4] 
1. According to the Commissione (Provincial Tax Court, Modena), it seems, 
however, entirely uncertain whether the applicant, AUSL, is entitled to the 
exemption set out in Article 9(8) Legislative Decree No 23, cited above; 
2. It seems, that the claim that the property ‘Ospedale Nuovo’ is intended to be 
used for ‘statutory tasks’ of the AUSL is highly questionable when in fact the 
AUSL receives annual rent of EUR 2 181 600.00 for that property, paid by a 
commercial company which runs a business in that building providing healthcare 
services. 
3. This is also the case in the light of the case-law concerning ICI — the 
Imposta Comunale sugli Immobili (Municipal Tax on Immovable Property), 
which also concerned property and, essentially, was replaced by the IMU) — 
case-law which is therefore easily transposable to this case [...] [citation of Corte 
di Cassazione (Court of Cassation, Italy) judgments]. 
4. However, as has been noted, AUSL had previously sought an ‘ordinary’ tax 
ruling from the Comune di Sassuolo under Article 11 of Law No 212 cited above, 
to which it did not receive a response. 
REQUEST FOR A PRELIMINARY RULING OF 25.10.2018 – CASE C-26/19 
 
4  
5. In that regard, it seems useful to clarify that Article 11 of Law No 212 
governs typical situations involving a tax ruling whereby — as far as directly 
concerns us here — when the authority to which the request is made to does not 
give a response within the period established by law, that authority is bound to the 
‘solution proposed by the tax payer’ (Article 11(3) of Law No 212). 
6. Therefore, the joined actions of the AUSL — by which the application of the 
IMU for the years 2012 and 2013 has been contested — will have to be upheld by 
the Commissione (Provincial Tax Court, Modena) without it being able to 
ascertain whether that taxpayer is eligible for the exemption under Article 9(8) of 
Legislative Decree No 23. 
(C) The questions referred for a preliminary ruling 
1. In the present case, the combination of the events described and the laws 
mentioned could, in the view of the Commissione (Provincial Tax Court, 
Modena), give rise to an infringement of Article 107 TFEU, which prohibits State 
aid ‘in any form’. 
[Or.5] 
2. This is because it would permit a publicly-owned commercial company to 
obtain a tax exemption to which it may not be entitled, particularly in the light of 
the abovementioned national case-law, giving it, as a result, an unfair competitive 
advantage over hospitals managed by companies that are also commercial but are 
entirely privately owned. 
3. The questions to be referred for a preliminary ruling are, therefore, the 
following: 
3.1. ‘Is Article 9(8) of Legislative Decree No 23, which allows Italian national 
health service bodies an exemption from IMU [single municipal tax] for real 
estate which they own and whose intended purpose is exclusively the performance 
of statutory tasks, consistent with Article 107 TFEU, which prohibits State aid “in 
any form”, if that national legislation is interpreted as meaning that the tax 
advantage is also available to an AUSL [a local public body providing healthcare 
services] which leased a property to a public-private commercial company (51% 
owned by that body) which, in that property, provides healthcare services in 
competition with other hospitals that are entirely privately owned, thus giving rise 
to a tax advantage which may be classified as State aid that distorts the rules of the 
free market?’ 
3.2. ‘Does the Italian tax ruling provided for by Article 11 of Law No 212 — 
which precludes an interpretation of Article 9(8) of Legislative Decree No 23, by 
analogy with the case-law of the Italian Supreme Court concerning the ICI 
[Municipal Tax on Immovable Property], to the effect that the IMU exemption 
does not apply to an AUSL when the property is used by a public limited 
AZIENDA USL DI MODENA 
 
5 
company in which that public body also has a holding and which provides 
healthcare services there in competition with other entirely privately owned 
commercial companies which also provide healthcare services, thus giving rise to 
a tax advantage which may be classified as State aid that distorts the rules of the 
free market — comply with the Treaty, specifically Article 107 TFEU, which 
prohibits State aid “in any form”?’ 
[Or.6] 
The Commissione [tributaria provinciale] (Provincial Tax Court, Modena), having 
regard to Article 267 of the Treaty on the Functioning of the European Union, 
refers the questions set out above on the interpretation of EU law to the Court of 
Justice of the European Union for a preliminary ruling. [...] [standard wording] 
Modena, [...] 25 October 2018 
[...]