Opinion of the Advocate General — ECLI:EU:C:2005:410
Date: 2005-06-28
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Competition – Public undertakings and undertakings to which the Member States grant special or exclusive rights – Creation of a dominant position (Arts 82 EC and 86(1) EC) 2. Preliminary rulings – Jurisdiction of the Court 3. Freedom of movement for persons – Freedom of establishment – Freedom to provide services (Arts 43 EC and 49 EC) 4. State aid – Definition (Art. 87(1) EC) 1. The mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses. (see para. 23) 2. Where, on the reference of a question for a preliminary ruling, the activities at issue in the main proceedings are confined in all respects within a single Member State, a reply might none the less be useful to the national court, in particular if its national law were to require that a national of that Member State must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation. Such a question must therefore be held to be admissible, since it must accordingly be examined whether the Treaty provisions, the interpretation of which is requested, preclude the application of the national legislation at issue in the main proceedings, since it would apply to persons residing in other Member States. (see paras 28-30) 3. Articles 43 EC and 49 EC must be interpreted as precluding national legislation which reserves the right to pursue certain tax advice and assistance activities exclusively to Tax Advice Centres (‘CAF’) which must be constituted in the form of public limited companies carrying on their business under authorisation from the Ministry of Finance and which can be set up only by certain legal entities specified by legislative decree. Such legislation both completely prevents access to the market for the services in question by economic operators established in other Member States and, by restricting the ability to form CAF to certain legal entities meeting strict conditions, or even to some of those entities with their registered office in the Member State concerned, is liable to make more difficult, or even completely prevent, the exercise by economic operators from other Member States of their right to establish themselves in the Member State concerned with the aim of providing the services in question. (see paras 7, 33-34, 50, operative part 1) 4. A measure by which a Member State provides for the payment of compensation from State funds to certain undertakings responsible for helping taxpayers in connection with the completion of tax declarations and filing them with the tax authorities must be classified as State aid within the meaning of Article 87(1) EC, where, first, the level of the compensation exceeds what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations, and, second, the compensation is not determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations. (see para. 72, operative part 2)