62003CC0451_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Italian legal system entrusts a number of special-purpose entities, which in certain cases it remunerates from public funds, with the performance of specified services in the operation of income tax on some categories of taxpayer.
2. The Corte d’Appello (Court of Appeal), Milan, questions whether that arrangement is compatible with Community law and has therefore made a reference to the Court of Justice to dispel the doubt; it asks three questions. It asks whether that system constitutes an abuse of a dominant position (the first question), whether it infringes the freedom of establishment and the freedom to provide services (the second question) and, lastly, whether it is actually authorising State aid (the third question).
I – Community Law
A – Free competition
3. The objectives set out in Article 2 EC must, as stated in Article 4 EC and Article 98 EC, be achieved through the development of an economy with free competition, within the framework of sincere cooperation referred to in Article 10 EC.
4. In accordance with those plans, Article 82 EC (formerly Article 86 of the EC Treaty), prohibits abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it to the extent that it may affect intra-Community trade.
5. Article 86 EC (formerly Article 90 of the EC Treaty) prohibits the Member States from maintaining or enacting, in the case of public undertakings and undertakings enjoying special or exclusive rights, measures contrary to the Treaty and, as regards the present case, free competition.
6. A necessary prior condition is added to that requirement by the prohibition on public aid ‘which distorts or threatens to distort competition’ by favouring certain undertakings or the production of certain goods, when the aid has an effect on trade between Member States. The prohibition is laid down in paragraph 1 of Article 87 EC (formerly Article 92 of the EC Treaty). Paragraph 2 lists those incentives of this kind which, by way of exception, are permitted and paragraph 3 lists those which may be considered compatible with the common market.
B – Freedom of establishment; freedom to provide services
7. Article 43 EC (formerly Article 52 of the EC Treaty) lays down the freedom of establishment of nationals of a Member State in the territory of another, which includes the right to take up and pursue occupations as self-employed persons and to set up and manage undertakings, in particular companies or firms. This provision prohibits restrictions on that freedom, including also those which hinder the setting-up of agencies, branches or subsidiaries in any other country of the Community.
8. However, activities connected, even occasionally, with the exercise of official authority are excluded, under Article 45 EC (formerly Article 55 of the EC Treaty), and also, pursuant to Article 46 EC (formerly Article 56 of the EC Treaty), domestic provisions prescribing special treatment for foreign nationals on grounds of public policy, public security or public health.
9. Companies and firms are guaranteed that right, by Article 48 EC (formerly Article 58 of the EC Treaty), provided they are formed in accordance with the law of a Member State and have their registered office, central administration or principal place of business within the Community. For these purposes, ‘companies or firms’ means those constituted under civil or commercial law, cooperatives, and legal persons governed by public or private law, except those which are non-profit-making.
10. Article 49 EC (formerly Article 59 of the EC Treaty) protects the freedom to provide services, that is, pursuant to Article 50 EC (formerly Article 60 of the EC Treaty), those provided for remuneration and, specifically, the activities of the professions.
II – Relevant Italian provisions
11. Law 413 of 30 December 1991 (2) allows employed workers, retired persons and those treated as such (3) to assess income tax by submitting a simplified declaration (form 730) as an alternative to the ordinary process (form 740), enabling them to obtain any refunds quickly, directly through the employer or entity from which income is received, as appropriate.
12. Article 78 of that Law introduced Tax Advice Centres (known by the acronym ‘CAF’), for which regulations were subsequently made in Legislative Decree 241 of 9 July 1997, (4) which reserves the power of establishing these bodies to:
(a) Employer organisations
for sectors of activity of ten years standing, represented in the National Economic Council or, if not so, whose importance is recognised by the Ministry of the Treasury because they comprise at least 5% of the employers listed in the register of the Chamber of Commerce and have some form of establishment in at least 30 provinces; this right is also granted to subsidiaries of these, acting under powers given [Article 32(1)(a), (b) and (c)]. This category (hereinafter ‘Employer Centres’) advises undertakings (Article 34(1)).
(b) Workers’ unions
and area branches of these with not fewer than 50 000 members, workers’ associations promoting ‘istituti di patronato’ (charitable institutions), with the same number of members, and also entities, with the same number of employees, paying wage incomes liable to income tax ( taxpayers’ substitutes) [Article 32(1)(d), (f) and (e)]. These bodies (hereinafter ‘Worker Centres’) assist those who do not receive income from self-employed work or from business activities (Article 34(2)), meaning employed workers and persons treated as such, who qualify to use form 730. (5)
13. Under Article 33, a Centre adopts the form of a company with share capital, commencing operations upon authorisation from the Ministry of the Treasury, with its object restricted to tax advice pursuant to Article 34; responsibility for that advice lies with one or more professionals appointed for the purpose from among the members of the associations of auditors or accountants and empowered to discharge their function as employees of the entity.
14. The individual activities, undertaken at the request of the user, are described in Article 34(3) and (4).
15. Worker Centres, which give advice regarding form 730, check that the particulars given are accurate, give the taxpayer a copy of the draft assessment, notify the taxpayer’s representatives of the outcome for them to clear withholdings on account and send the declaration to the Tax Administration (Article 34(4)). (6) At the request of the individual concerned, the consultant certifies that the figures given on the printed form match those found in the documentation attached (Article 35(2)). For each form 730 which is processed, these Centres receive remuneration of EUR 13.98, revised under a predetermined procedure (Article 38). (7)
16. In the discharge of their functions, Employer Centres perform the same tasks as the Worker Centres and also prepare tax returns and keep the books of the undertakings that they assist (Article 34(3)), marking the ‘stamp of conformity’ on these items also (Article 35(1)). They are not remunerated from public funds.
III – Facts in the main action; the questions referred
17. The company Servizi Ausiliari Dottori Commercialisti s.r.l. (hereinafter ‘ADC Servizi’) was established on 4 July 2002 to offer accounting and administrative consultancy. The extraordinary general meeting held on 25 February 2003 extended the object of the company, including tax consultancy to undertakings and workers, pursuant to Legislative Decree 241 of 1997.
18. Notary Giuseppe Calafiori, responsible for writing the minute of the meeting, refused to register the modifying resolution at the Companies Registry because Article 34 of the Legislative Decree reserves those occupations to Tax Advice Centres, and ADC Servizi does not have that status.
19. The company applied to the Tribunale (District Court), Milan, for the registration denied by the public officer; the court dismissed the application by decision of 15 May 2003, rejecting the argument that the Italian legislation was incompatible with Community law as weak and for failing to state its grounds.
20. ADC Servizi appealed to the Corte d’Appello, Milan, reiterating the conflict between the two legal systems; in order to settle the dispute, the Corte d’Appello made a reference to the Court of Justice, pursuant to Article 234 EC, asking the following questions:
‘1. Must Articles 4 EC, 10 EC, 82 EC, 86 EC and 98 EC be interpreted as precluding national rules such as those laid down in Legislative Decree No 241 of 9 July 1997, as amended by Legislative Decree No 490 of 28 December 1998, read together with the consolidated law (8) on income tax (Decree of the President of the Republic No 917 of 22 December 1986) and Law No 413 of 30 December 1991, which exclusively reserves the right to provide certain types of tax advice to a single category of operators, namely the Centri di Assistenza Fiscale (or CAFs), and denies other economic operators in the sector who are nevertheless professionally qualified to provide tax and accounting advice (commercial accountants, lawyers and work consultants) the opportunity of providing, on the same terms and conditions, the type of advice reserved to the CAFs?
2. Must Articles 43 EC, 48 EC and 49 EC be interpreted as precluding national rules such as those laid down in Legislative Decree No 241 of 9 July 1997, as amended by Legislative Decree No 490 of 28 December 1998, read together with the consolidated law on income tax (Decree of the President of the Republic No 917 of 22 December 1986) and Law No 413 of 30 December 1991, which exclusively reserves the right to provide certain types of tax advice to a single category of operators, namely the Centri di Assistenza Fiscale (or CAFs), and denies other economic operators in the sector who are nevertheless professionally qualified to provide tax and accounting advice (commercial accountants, lawyers and work consultants) the opportunity of providing, on the same terms and conditions, the type of advice reserved to the CAFs?
3. Must Article 87 EC be interpreted as meaning that a measure such as that arising from the rules laid down in Legislative Decree No 241 of 9 July 1997, and in particular Article 38 thereof, which provides for payment to be made to CAFs from State funds in respect of the activities referred to in Articles 34(4) and 37(2) of that legislative decree, constitutes State aid?’
IV – The proceedings before the Court of Justice
21. The Commission, the Italian Government and ADC Servizi submitted observations within the period specified in Article 20 of the EC Statute of the Court of Justice.
22. At the hearing, which was on 25 May 2005, the representatives of those participating in the written procedure appeared and made their submissions orally.
V – Analysis of the questions referred
A – Two preliminary explanations
23. The Commission considers it necessary to substantiate the admissibility of these preliminary ruling proceedings, which nobody has discussed and which, in the light of Community case-law, does appear irrefutable. As the Commission itself recalls, each of the judgments in Job Centre II (9) and in Payroll and Others, (10) settled a reference from the Corte d’Appello, Milan, without questioning admissibility, in appeals against decisions by the Tribunale, Milan, withholding recognition from company resolutions.
24. The Corte d’Appello does not specify whether the questions referred relate to all Tax Advice Centres or only to those which I have described as ‘worker centres’. Certainly, the third question only applies to the latter, the only ones which receive payment at the cost of the State. Therefore, the analysis of the first two questions refers to all Tax Advice Centres without distinction whilst the analysis of the last is restricted to that particular category of Centres.
B – First question: Tax Advice Centres and their position in the market
25. The reference in this question to Articles 4 EC, 10 EC and 98 EC has to be considered as the access-point to the essence of the uncertainty felt by the Corte d’Appello in making its interpretation. As ADC Servizi notes, these provisions are programmatic: they define the fundamental principles of economic public policy of the Community system and establish the climate for Articles 82 EC and 86 EC, the true subject of the interpretation sought.
26. It seeks to establish whether the exclusive assignment of specified tax-advice activities creates an abuse, prohibited by Article 82 EC, applicable here by virtue of Article 86(1) EC. The point is, therefore, to elucidate whether the Italian rules described create a system which leads the Tax Advice Centres to engage in conduct contrary to Article 82 EC.
27. The thread of argument must bring together two assertions not discussed in the preliminary ruling proceedings: for the Treaty, the Centres count as undertakings (11) and the reservation to them of certain tax assistance services can be described as a special right. (12)
28. Similarly it should be noted that, although Article 82 EC covers organisations within the public sector or those with exclusive or special rights as referred to in paragraph [1] of Article 86 EC, that paragraph prohibits the Member States from maintaining in force in respect of that class of organisation any measure contrary to the rules contained in this Treaty, in particular the rules provided for in Articles 81 EC to 89 EC. As a consequence, any legislation which creates a situation where such undertakings are in a position to infringe Article 82 EC and to reduce its effectiveness is incompatible with Community law. (13)
29. We must next inquire whether the Tax Advice Centres, among which users may choose freely, (14) are in a dominant position. According to the details available in the proceedings, the number of these entities has increased and there are now more than 70, (15) and no one entity would be in a position to dominate the Italian market by itself. However, the statutory monopoly which they enjoy does, if they are taken all together, give them that privileged position, (16) which would affect a substantial part of the common market. (17)
30. According to Article 82 EC, such a status can be held by ‘one or more undertakings’, an expression referring to the possibility that it is held by two or more companies or firms, legally independent of each other, provided that from the economic point of view they act or present themselves together within a given sector. This creates the concept of the ‘collective dominant position’, when the organisations constitute a unit, (18) adopt a common line of conduct and act independently of competitors, their customers and also of consumers, (19) and those particulars must be sufficiently substantiated.
31. But, in this case, it has not been shown that such links exist among the various Tax Advice Centres, (20) which include very different entities: employers’ organisations, trade unions and workers’ charitable institutions or taxpayers’ substitutes.
32. To begin with, the first category advises undertakings whilst the other two give advice to employees, the retired and persons treated as such, so that there is no link between them.
33. Within the last category, and in mediation for the assessment of income tax using form 730, which, according to the Italian Government, is used by some 14 million taxpayers, the firms capable of setting up Centres bring together differing social interests and areas, since trade-union and worker-protection activity has nothing in common with the payment of ‘wage incomes liable to tax’, which defines the taxpayers’ substitute. Within each group, the likelihood of cooperating in order to procure a benefit to abuse does seem illusory. The major Italian trades unions, (21) as the Commission notes, compete in ideological and political terms for the defence of the workers and it is not reasonable to believe that they would form a common front, to the prejudice of their members, in abusing any alleged collective dominant position in the market for advice on the simplified assessment of income tax. Such arguments may also be used as regards the employer organisations. Among the taxpayers’ substitutes each employer, pursuant to Article 37(1) of Legislative Decree 241 of 1997, affords tax assistance to his own employees and, in principle, there are therefore no links on which to base any unity of action.
34. Thus, there is no evidence of sufficiently strong bonds among the Tax Advice Centres to point to a position of collective dominance. In view of that, the Commission proposes that the Court of Justice should not answer the first question and submits that the order for reference does not give the requisite details on the matter. However, in the light of the judgment in Sodemare and Others
(paragraph 49), it should be declared that Articles 82 EC and 86 EC do not apply to national legislation such as that at issue in this case.
C – Second question: Tax Advice Centres, freedom of establishment and freedom to provide services
1. Admissibility
35. The Italian Government submits that ADC Servizi, having no link with companies or firms of other Member States, may not rely on these freedoms, since all the points of dispute are domestic. But that viewpoint, which is opposed by the Commission, overlooks the point that the domestic rules apply without distinction to Italian and to foreign companies so that, if any of the latter should intend to set up in Italy and offer tax-mediation services, it would encounter the obstacle that certain services are reserved to the Tax Advice Centres.
36. But, since all the relevant objective and subjective elements are Italian, there arises the question whether the Corte d’Appello, Milan, needs an interpretation of the Treaty articles that it refers to in the second question. The Court has consistently held that it is for the court making the reference to assess the relevance of a preliminary ruling in giving judgment, unless the interpretation of Community law is irrelevant to the facts or the subject-matter of the main action, in which case the Court of Justice may dismiss it at the outset. In this case, however, even were one to consider that the legislation at issue does infringe those freedoms and that, therefore, it is not proper for it to prevent companies established in other Member States from providing the services which it assigns to these Centres, because of the principle of equality that is set out in Article 3 of the Constitution of the Italian Republic, (22) the ruling of the Court of Justice would be useful in resolving the dispute. (23)
37. It is therefore proper to consider whether the provisions of the Treaty for which the Corte d’Appello, Milan, is seeking an interpretation preclude the national rules where these apply to persons and companies established in other Member States.
2. Identifying its subject-matter
38. The Italian court asks whether the system of Tax Advice Centres fulfils the requirements inherent in the freedom of establishment and the freedom to supply services, considering that both stand on the same basis and have the same purpose, to the extent that Article 55 EC states that the provisions set out in Articles 45 EC to 48 EC in respect of the former shall apply to the latter.
39. If the main action relates to the approval of a draft amendment to the statutes of a company, which is able indirectly ( à rebours ) to benefit from the regime of the Treaty relating to the right of establishment (Article 43 EC), it appears irrelevant for the Court of Justice to rule regarding the guarantee in Article 49 EC (24) although, as the Commission submits, that does not preclude the arguments from being transposed, subject to the necessary changes, from one freedom to the other. (25)
3. Freedom of establishment
(a) Obstructing performance
40. It is settled case-law, (26) subject always to the exceptions and the conditions which I refer to below, that this right, conferred on both natural persons and legal persons, includes the right to take up and pursue any kind of self-employed activity in the territory of any other Member State, to set up and manage undertakings and to set up agencies, branches or subsidiaries.
41. Consequently, national measures liable to place companies from other Community countries in a less favourable factual or legal situation than companies from the State of establishment constitute a restriction in breach of Articles 43 EC and 48 EC. (27)
42. In my opinion, the tax-advice rules at issue are contrary to this freedom, for two types of reasons.
43. Firstly, because the terms for setting up a Tax Advice Centre (described in point 13 of this Opinion) are fulfilled only by Italian entities, leaving foreign entities subject to indirect discrimination. (28)
44. Secondly, because the rules grant those Centres an exclusive right to provide certain types of advice (described in points 15 and 16 of this Opinion) which, according to the Autorità Garante della Concorrenza e del Mercato in its decision of 10 November 1999, (29) creates two sectors, one with open access and the other restricted to these organisations and denied to other operators with the relevant professional qualifications, whether they are Italian or from other Member States. In so restricting the scope of their activities, Legislative Decree 241 of 1997 hinders the freedom of foreign companies to become established in Italy. A taxpayer will not readily put a foreign adviser in charge of completing the simplified declaration knowing that that professional cannot endorse it or send it to the officer in charge of making him the relevant refund of sums withheld on account and, in short, cannot send it to the Administration, tasks for which a Tax Advice Centre has exclusive approval.
a) An unjustified restriction
45. On the first point, that of indirect discrimination by nationality, the legislation at issue is inadmissible whichever way one looks at it, since the only public-interest grounds capable of excusing it, those in Article 46(1) EC, (30) that is, the grounds of public policy, public security and public health, are not relevant to the case.
46. On the second point, the national measure would be compatible with Article 43 EC if: (a) it is justified by overriding requirements in the general interest, (b) it is appropriate to the objective pursued and (c) it does not go beyond what is necessary for that purpose. (31)
47. The objective pursued by the Tax Advice Centres is to assist employees and small businessmen in some of their fiscal obligations. From this point of view one would understand the restriction on the basis of protection of workers, a factor which the Court of Justice has repeatedly taken into account, (32) or on the need to ensure a minimum level of professional qualification or quality in the service. (33)
48. But, if we look with care at the content of the activities which Italian legislation subjects to an oligopoly, it becomes clear that it is not appropriate to those purposes.
49. Some of these tasks are simply management and do not require any special training: giving the person concerned a copy of the declaration, notifying this to the taxpayers’ substitutes for them to assess withholdings on account and sending these to the tax administration. (34)
50. However, other tasks are more significant: certifying that the data supplied are accurate, preparing tax assessments or keeping the firms’ account books. Nonetheless, there is no excuse for the restriction in respect of these duties either. The Corte d’Appello, Milan, is right in noting in the order for reference (section 3, paragraph 5) that the organisations authorised to set up Centres ‘have no specific professional qualification’. The Italian statutory requirements do not give any guarantee of special fitness or particular competence, and only set quantitative parameters regarding the number of members or employees, which do not assume any greater ability, for a high level of representativity does not involve any higher level of training.
51. Certifying the accuracy of the data supplied and of the data entered in firms’ books falls to the responsible individuals appointed by the Centres and, as I have explained, they must be professional auditors or accountants who, because of their particular knowledge, are especially qualified for that task but who, none the less, are prohibited from doing so on their own account. Thus the Centres act simply as agents between taxpayers and experts to whom, according to the Commission (in point 42 of its written observations), there is thus opened a window to enter where the door has been closed against them.
52. Briefly, like the advisors in the Säger
case the Centres only carry out tasks of simple administration and intermediation, which do not require any special provision, so that there is no excuse for the restriction on the freedom of establishment imposed by the legislation at issue in the main action. In other words, protection of the interests of workers and small firms, as persons liable to income tax, and the need to ensure a minimum quality in the supply of services do not require the services to be removed from the free market and entrusted to a number of entities without specific ability to supply them.
53. Being persuaded that the national measure is not appropriate to attainment of the objective of protection capable of affording it cover, I see no need for any consideration of whether it is proportionate.
54. None the less, it would be regarded as legitimate, pursuant to Article 45 EC, if it were held that it affects an activity connected with the exercise of official authority but, in my opinion, it cannot be regarded thus. The Tax Advice Centres have an auxiliary and preparatory role and, at a later stage, it falls to the Administration to verify compliance with the duty of contributing to public expenditure; (35) through the tax-management, -inspection and -assessment services, (36) the Administration performs its primary function, which is a manifestation of the authority of the State; however, the Centres have no such direct connection with the powers of government and restrict themselves to the role of simply quantifying and reporting the fiscal debt, which is still subject to further checking and, as appropriate, correction. (37)
55. In the light of the considerations above, I propose that, in reply to the second question from the Corte d’Appello, Milan, the Court of Justice should declare that Article 43 EC precludes legislation by a Member State to reserve the right to provide certain types of tax advice and certification to a specified category of organisations and deny exercise thereof to operators of other Community countries who have the requisite professional qualification to provide tax advice and intend to become established in that country to undertake and engage in the same activities.
D – The third question: remuneration for services relating to the simplified declaration
56. In the last question, the court making the reference inquires whether the sums received by Tax Advice Centres from public funds for the activities relating to form 730 constitute State aid, prohibited by Article 87 EC.
57. This concept, which is well-established in Community case-law, (38) requires the four conditions laid down in Article 87(1) EC to be met: (1) action by the State or through State funds, (2) capable of affecting intra-Community trade, (3) conferring an advantage on the recipient, (4) that distorts or threatens to distort competition.
58. There is no doubt that the Italian rules contain evidence of the first condition for, simply by reading Article 38(1) and (2) of Legislative Decree 241 of 1997, one sees that payment is effected by a charge on the State budget.
59. The second condition also is met in that, as the Commission notes in its written observations, the remuneration is paid for the supply of services which, taking account of the reply which I am proposing for the second question referred, (39) could also have been supplied by companies of other Member States, although these latter would have received no payment from Italian State funds. (40) The free market would thus be distorted, so meeting the fourth condition since, by means of that public remuneration, the position of the Centres would be strengthened and they would be able to supply the services at no cost at all to the users. (41)
60. It appears more complicated to examine the third condition, concerned with whether the State intervention signifies an advantage for the recipient company. Conceptually, the idea of ‘advantage’ means that the financial sacrifice incurred by the social community has no counterpart or it is merely symbolic. The result of that view, as in Altmark Trans and Regierungspräsidium Magdeburg, is that compensation for services to discharge public service obligations, reduced to offset the additional costs which they involve, in a manner that does not confer any competitive privilege, has been ruled not to be State aid.
61. The following factors must apply, however, for that to happen: (1) the recipient company must undertake to discharge clearly defined public service obligations; (2) the parameters for calculation of the compensation must be established in advance in an objective and transparent manner; (3) the compensation cannot exceed the maximum amount of the costs plus a reasonable profit; and (4) if the undertaking has not been chosen pursuant to a public procurement procedure capable of finding the candidate tendering the service most advantageous to the community, the level of compensation must be determined from the costs that a typical, well-run undertaking would have incurred in discharging the public service obligations (see paragraphs 87 to 93 of the judgment in Altmark ). (42)
62. There is no doubt that the first two factors are found in the Italian legislation. The services described in points 16 and 17 of this Opinion and that the Tax Advice Centres have to provide in respect of the simplified declarations do seem to be precisely defined and there is nothing to prevent a Member State from describing them as public service obligations, since they are intended to assist citizens in their basic duty of supplying funds to the State and of contributing to the support of public expenditure. Moreover, the remuneration is set in the law, which also lays down the channel by which it is to be revised (in Article 38(3) of Legislative Decree 241 of 1997).
63. Consideration of the third factor, however, is not within the jurisdiction of the Court of Justice but within that of the Corte d’Appello, Milan, since the point is examination of issues of fact proper to the main action and the judicial authority by which a ruling must be given. Something similar is found in the second part of the last of the factors because it is a matter of common knowledge that the bodies which set up the Centres were not selected through a public procurement process and it is for the national court to verify whether the remuneration received was quantified in accordance with the criteria referred to above.
64. I will end this discussion of the arguments by noting that the system in dispute cannot be covered by any of the exceptions set out in Article 87(2) or (3) EC and, furthermore, there is no record of Italy’s communication on this to the Commission, pursuant to Article 88 EC.
65. The considerations above lead me to suggest to the Court of Justice that, in respect of the last question referred, it should indicate that a measure such as that at issue in the main action, providing for payment of remuneration, from State funds, to the undertakings which supply specified services of tax advice and certification does constitute State aid if they were not appointed in a public procurement process to select the candidates capable of offering them at least cost to the community and the level of compensation was not determined from the costs that a typical undertaking, well run for the purposes of meeting the public service requirements, would have incurred in discharging those obligations, taking into account a reasonable profit.
VI – Conclusion
66. Having regard to all of the foregoing, I propose that the Court of Justice should answer the questions referred by the Corte d’Appello, Milan, for preliminary ruling by declaring that:
(1) Articles 82 EC and 86 EC do not apply to circumstances such as those produced by the national rules at issue in the main action.
(2) Article 43 EC must be interpreted as precluding legislation by a Member State to reserve the right to provide certain types of tax advice and certification to a specified category of organisations and deny exercise thereof to operators of other Community countries who are professionally qualified to provide tax advice and intend to become established in that country to undertake and engage in the same activities.
(3) Pursuant to Article 87 EC, a measure such as that at issue in the case giving rise to the present proceedings, providing for payment of remuneration, from State funds, to the undertakings which supply specified services of tax advice and certification does constitute State aid where they were not appointed in a public procurement process to select the candidates capable of offering them at least cost to the community and the level of compensation was not determined from the costs that a typical undertaking, well run for the purposes of meeting the public service requirements, would have incurred in discharging those obligations, taking into account a reasonable profit.
(1) .
(2)  –	Gazzetta Ufficiale della Repubblica Italiana
(Official Gazette of the Italian Republic) (hereinafter ‘GURI’) No 305 of 31 December 1991.
(3)  –	Legislative Decree 490 of 28 December 1998 (GURI No 15 of 20 January 1999) extended this benefit to taxpayers ‘treated as employed workers’ and referred to in Article 49(2)(a) of the Consolidated Law on Income Tax, approved in Presidential Decree 917 of 22 December 1986 (GURI No 302 of 31 December 1986).
(4)  –	GURI No 174 of 28 July 1997. This Legislative Decree also has been amended by Legislative Decree 490 of 1998. The implementing regulations to this were subsequently approved by Ministerial Decree 164 of 31 May 1999 (GURI No 135 of 11 June 1999).
(5)  – Under Article 34(2), ‘Centres established by those qualifying under Article 32(1)(d), (e) and (f) shall provide tax assistance to taxpayers not receiving income from self-employed work or from business activity as specified in Article 49(1) and Article 51 of the Consolidated Law on Income Tax ...’.
(6)  –	In accordance with this paragraph, ‘in respect of the annual tax declaration by recipients of income from employed work and those treated as such and specified in Article 46 and Article 47(1)(a), (d) and (g), except for allowances received by Members of the European Parliament, and at (1) in the Consolidated Law on Income Tax, ..., and also the income specified at Article 49(2)(a) of the Consolidated Law, Centres set up by the persons referred to in Article 32(d), (e) and (f) shall carry out the activities in paragraph 3(c) to (f)’ of Article 34. Article 37(2) uses similar terms to describe the functions of Centres set up by taxpayers’ substitutes, which assist their own employees.
(7)  –	This provision refers to the sum of ITL 25 000; the Corte d’Appello has reported that, on 15 October 2003 – the date on which the order for reference was approved – the payment stood at EUR 13.98.
(8)  – The original version of the order for reference uses the abbreviation ‘T.U.’, which has been translated into Spanish as ‘Texto único’ (Single Law), but I believe that the term ‘Texto refundido’ (Consolidated Law) is more meaningful.
(9)  –	Case C-55/96 [1997] ECR I-7119.
(10)  –	Case C-79/01 [2002] ECR I-8923.
(11)  –	Starting with the judgment in Case C-41/90 ( Höfner and Elser
[1991] ECR I-1979), it has been held that this concept encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (paragraph 21). In the light of that criterion, it was held that a public employment agency may be classified as an undertaking (paragraph 23), and that assessment was repeated in Job Centre II
(paragraph 25). The judgment in Case C-35/96 ( Commission v Italy
[1998] ECR I-3851) did the same regarding the customs agents of that Member State (paragraph 37) and, more recently, the judgment in Case C-475/99 ( Ambulanz Glöckner
[2001] ECR I-8089) attached the same status to the German medical aid organisations, to which the public authority delegates emergency transport services and patient transport services (paragraph 22). And registered members of the Bar in the Netherlands count as undertakings for the purposes of the Treaty, according to the judgment in Case C-309/99 ( Wouters and Others
[2002] ECR I-1577, paragraph 49).
(12)  –	To entrust certain services to one or more organisations, passing over others, is sufficient to identify an exclusive or special right, since it confers protection on a limited number of undertakings, affecting the ability of all other undertakings to exercise the activity in question in the same geographical area under substantially equivalent conditions (see paragraph 24 in Ambulanz Glöckner ). In Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (OJ 2000 L 193, p. 75), Article 2(1)(f) defines exclusive rights as those that are granted by a Member State to one undertaking through any legislative, regulatory or administrative instrument, reserving it the right to provide a service or undertake an activity within a given geographical area and subparagraph (g) defines special rights as those granted, for the same purpose, ‘otherwise than according to objective, proportional and non-discriminatory criteria’, to a small number of companies.
(13)  –	This idea, expressed for the first time in the judgment in Case 13/77 ( Inno
[1977] ECR 2115, in paragraphs 31 and 32), would be repeated later in Höfner and Elser
(paragraph 26) and in Job Centre II
(paragraph 28).
(14)  –	This was stated in the public hearing by the Italian Government’s representative, in answer to a question from the President of the Chamber.
(15)  –	The record of the hearing shows that, of this number, seven are employer centres, ten are worker centres, some fifty are centres for undertakings treated as taxpayers’ substitutes and five are subject to professional associations or collegiate professional bodies.
(16)  –	Judgments in Höfner and Elser
(paragraph 28) and in Job Centre II
(paragraph 30) and those cited there.
(17)  –	For these purposes, one Member State may constitute an essential part of the Community [judgment in Case 322/81 Michelin v Commission
[1983] ECR 3461, paragraph 28].
(18)  –	Judgments in Case C-393/92 ( Almelo and Others
[1994] ECR I-1477, paragraph 42) and in Case C-70/95 ( Sodemare and Others
[1997] ECR I-3395, paragraph 46).
(19)  –	Confirmed by the judgments in Joined Cases C-68/94 and C-30/95 ( France and Others v Commission
[1998] ECR I-1375, paragraph 221) and in Joined Cases C-395/96 P and C‑396/96 P ( Compagnie Maritime Belge Transports and Others v Commission
[2000] ECR I‑1365, paragraph 39).
(20)  –	The Corte d’Appello, Milan, establishes clearly that ‘the mechanism brought in by the national legislature places the [Centres] in a privileged position, in that they can exercise an exclusive right by virtue of a law which, in fact, prevents the development of normal and proper competition in the market’ (section 3, paragraph 13, of the order for reference).
(21)  –	The Confederazione Generale Italiana del Lavoro, with its 5 500 000 affiliated members, offers tax-advice services through CAF-CGIL, the Confederazione Italiana Sindacati Lavoratori, with 4 300 000 registered members, has organised CAF-CSIL and the Unione Italiana del Lavoro, with 1 915 237 union members, has CAF-UIL.
(22)  –	The Commission cites two judgments of the Italian Constitutional Court which reject discrimination suffered by national workers compared with other Community producers. These are judgments No 249 of 16 June 1995 (GURI special series No 26) and No 443 of 30 December 1997 (GURI special series No 1).
(23)  –	This position is implicit in the judgment in Case C-448/98 ( Guimont
[2000] ECR I‑10663, paragraphs 18 to 24), on the free movement of goods; it is found again shortly afterwards in the judgment in Joined Cases C-515/99, C-519/99 to C-524/99 and C‑526/99 to C-540/99 ( Reisch and Others
[2002] ECR I-2157, paragraphs 24 to 27), on the free movement of capital, and the judgment in Case C-300/01 ( Salzmann
[2003] ECR I‑4899, paragraphs 32 to 36). The judgment in Case C-6/01 ( Anomar and Others
[2003] ECR I-8621) extended the doctrine to a matter of supply of services (paragraphs 39 to 42). The ruling in Case C-250/03 ( Mauri
[2005] ECR I‑0000) lays stress on the same approach (paragraph 21).
(24)  –	The literature shows that both rights have the same substantive content, non-employed economic activity (Calvo Caravaca, A.L., and Carrascosa González, J., Mercado único y libre competencia europea, Editorial Colex, Madrid, 2003, p. 115), and are subject to the same legal requirements, but the residual nature of the freedom to provide services is more marked, applying as it does in circumstances which cannot be covered by any of the other freedoms of movement (López Escudero, M., ‘La jurisprudencia del Tribunal de Justicia sobre el derecho de establecimiento y la libre prestación de servicios’, in ‘Derecho Comunitario. Presente y perspectiva’, Cuadernos de Derecho Judicial, No XXXII, Consejo General del Poder Judicial, 1995, pp. 15-53, particularly pp. 19 and 29).
(25)  –	The judgment in Payroll and Others, resolving a reference made by the Corte d’Appello, Milan, for preliminary ruling in a very similar situation, adopts that approach (especially paragraph 38).
(26)  –	Judgment in Payroll and Others, paragraph 24.
(27)  –	The judgment in Case C-255/97 ( Pfeiffer
[1999] ECR I-2835, paragraph 19) follows a settled line of case-law in this respect.
(28)  –	Employer organisations, trade unions and workers’ charitable institutions are, by definition, established in Italy. Only a major firm from another Member State and with more than 50 000 employees in that Community country could set up a Centre using its status as a taxpayers’ substitute.
(29)  –	Bollettino dell’Autorità Garante della Concorrenza e del Mercato, year IX, No 43, p. 70.
(30)  –	On this, see paragraph 15 in the judgment in Case C-263/99 ( Commission
v Italy
[2001] ECR I‑4195).
(31)  –	Judgments in Pfeiffer
(paragraph 19) and Payroll and Others
(paragraph 29).
(32)  –	In Payroll and Others, paragraph 31 cites seven cases, the first resolved in 1981 and the latest in 2002.
(33)  –	The judgment in Case C-76/90 ( Säger
[1991] ECR I-4221) held that, in principle, the safeguarding of appropriate advice on patents was able to protect the demand for special requirements to engage in and pursue that occupation.
(34)  –	The Säger
judgment stated that the restriction was unjustified because, in fact, the professional person considered did not give technical advice to the clients but only advised them of the time of payment of fees to renew a patent, in order to prevent it lapsing. The judgment in Payroll and Others
states that, given the purely executive nature of the functions assigned to the centres for computerised processing of data, in the case being heard, there appeared to be no need to entrust them to organisations which brought together employment consultants or similar professionals.
(35)  –	Article 53(1) of the Constitution of the Italian Republic provides that ‘all citizens are required to defray public costs in proportion to their ability to contribute’.
(36)  –	Tax Advice Centres are subject to the Administration’s supervision and power to impose penalties (Articles 9 and 26 of the Enforcement Regulations approved by Ministerial Decree 164 of 1999 and also Article 39 of Legislative Decree 241 of 1997).
(37)  –	Since its judgment in Case 2/74 ( Reyners
[1974] ECR 631), the case-law has given a restrictive interpretation of the safeguard provision in Article 45 EC (see paragraphs 42 to 47). The judgment in Case C-42/92 ( Thijssen
[1993] ECR I-4047) ruled that the function of approved commissioner for the Belgian Insurance Control Service was not connected with the exercise of official authority ( passim ). More recently, the judgments in Case C‑114/97 ( Commission v Spain
[1998] ECR I-6717, paragraphs 34 to 39), in Case C‑355/98 ( Commission v Belgium
[2000] ECR I-1221, paragraphs 24 to 26) and in Case C‑283/99 ( Commission v Italy
[2001] ECR I-4363, paragraphs 19 to 22) have ruled that private security undertakings and private security staff are not directly and specifically involved in the exercise of such authority.
(38)  –	The judgments in Case C-280/00 ( Altmark Trans and Regierungspräsidium Magdeburg
[2003] ECR I-7747) and in Case C-345/02 ( Pearle and Others
[2004] ECR I-0000) summarise the position on this arrangement, with many citations from the case-law.
(39)  –	Article 43 EC has direct effect (judgment in Reyners, paragraph 10).
(40)  –	By way of exception, only foreign firms with at least 50 000 employees in Italy could, as taxpayers’ substitutes, open a Tax Advice Centre and, upon providing service pursuant to Article 37(2) of Legislative Decree 241 of 1997, receive public remuneration under Article 38(2).
(41)  –	The expression in Article 87 EC (‘distort or threaten to distort’) reveals the intention of preventing actual or potential distortions of competition. Calvo Caravaca, A.L., and Carrascosa González, J. (at p. 737 in the work cited above) maintain that the hypothesis of a legal fact arises simply upon a real and concrete possibility that falsification occurs.
(42)  –	The judgment in Joined Cases C-34/01 to C-38/01 Enirisorse
[2003] ECR I-14243 repeats this idea, in paragraphs 31 et seq.