Case C-417/10

Ministero dell’Economia e delle Finanze and Agenzia delle Entrate

v

3M Italia SpA

(Reference for a preliminary ruling

from the Corte suprema di cassazione)

‛Direct taxation — Conclusion of proceedings pending before the court giving judgment at final instance in tax matters — Abuse of rights — Article 4(3) TEU — Freedoms guaranteed by the Treaty — Principle of non-discrimination — State aid — Obligation to ensure the effective application of European Union law’

Summary of the Judgment

Member States — Obligations — Obligation of sincere cooperation — Implementation of European Union law — Principle of the prohibition of abuse of rights — Free movement of capital — Principle of non-discrimination — Rules on State aid — Direct taxation of the Member States

(Art. 4(3) TEU; Arts 63 TFEU and 107(1) TFEU)

European Union law, in particular the principle of the prohibition of abuse of rights, Article 4(3) TEU, the freedoms guaranteed by the FEU Treaty, the principle of non-discrimination, the rules on State aid and the obligation to ensure the effective application of European Union law, must be interpreted as not precluding the application, in a case relating to direct taxation of a Member State, of a provision of national law which provides for proceedings pending before the court giving judgment at final instance in tax matters to be concluded in return for payment of a sum equivalent to 5% of the value of the claim, where those proceedings originate in an application made at first instance more than 10 years before the date of entry into force of that provision and the tax authorities have been unsuccessful at first and second instance.

In any event, no general principle exists in European Union law which might entail an obligation of the Member States to combat abusive practices in the field of direct taxation and which would preclude the application of such a national provision where the taxable transaction proceeds from such practices and European Union law is not involved.

Moreover, such a provision cannot be classified as State aid within the meaning of Article 107(1) TFEU. Advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid. Even supposing that the application of that provision may in a particular situation lead to an advantage for a beneficiary of that provision, the provision applies generally to all taxpayers who are parties to tax proceedings pending before the court of final instance, whatever the nature of the tax at issue, where those proceedings originate in an application at first instance made more than 10 years before the date of the entry into force of that provision and the tax authorities have been unsuccessful at first and second instance. The fact that only taxpayers satisfying those conditions can benefit from the measure cannot in itself make it into a selective measure. Persons unable to claim its benefit are not in a comparable factual and legal situation to those taxpayers from the point of view of the national legislature’s objective of ensuring compliance with the principle that judgment must be given within a reasonable time.

In the absence of an infringement of European Union law, it cannot be considered that such a provision, in that its consequence, like that of any other provision providing for proceedings to be terminated before a decision is made on their substance, is to prevent the national court of final instance from exercising its power of review of lawfulness in the proceedings concerned in accordance with European Union law, possibly after making a reference to the Court under Article 267 TFEU, is contrary to the obligation on national courts of final instance to ensure, within their respective jurisdictions, the effective application of European Union law.

(see paras 32, 39, 41, 42, 44, 46, 47, operative part)

Case C-417/10

Ministero dell’Economia e delle Finanze and Agenzia delle Entrate

v

3M Italia SpA

(Reference for a preliminary ruling

from the Corte suprema di cassazione)

‛Direct taxation — Conclusion of proceedings pending before the court giving judgment at final instance in tax matters — Abuse of rights — Article 4(3) TEU — Freedoms guaranteed by the Treaty — Principle of non-discrimination — State aid — Obligation to ensure the effective application of European Union law’

Summary of the Judgment

Member States — Obligations — Obligation of sincere cooperation — Implementation of European Union law — Principle of the prohibition of abuse of rights — Free movement of capital — Principle of non-discrimination — Rules on State aid — Direct taxation of the Member States

(Art. 4(3) TEU; Arts 63 TFEU and 107(1) TFEU)

European Union law, in particular the principle of the prohibition of abuse of rights, Article 4(3) TEU, the freedoms guaranteed by the FEU Treaty, the principle of non-discrimination, the rules on State aid and the obligation to ensure the effective application of European Union law, must be interpreted as not precluding the application, in a case relating to direct taxation of a Member State, of a provision of national law which provides for proceedings pending before the court giving judgment at final instance in tax matters to be concluded in return for payment of a sum equivalent to 5% of the value of the claim, where those proceedings originate in an application made at first instance more than 10 years before the date of entry into force of that provision and the tax authorities have been unsuccessful at first and second instance.

In any event, no general principle exists in European Union law which might entail an obligation of the Member States to combat abusive practices in the field of direct taxation and which would preclude the application of such a national provision where the taxable transaction proceeds from such practices and European Union law is not involved.

Moreover, such a provision cannot be classified as State aid within the meaning of Article 107(1) TFEU. Advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid. Even supposing that the application of that provision may in a particular situation lead to an advantage for a beneficiary of that provision, the provision applies generally to all taxpayers who are parties to tax proceedings pending before the court of final instance, whatever the nature of the tax at issue, where those proceedings originate in an application at first instance made more than 10 years before the date of the entry into force of that provision and the tax authorities have been unsuccessful at first and second instance. The fact that only taxpayers satisfying those conditions can benefit from the measure cannot in itself make it into a selective measure. Persons unable to claim its benefit are not in a comparable factual and legal situation to those taxpayers from the point of view of the national legislature’s objective of ensuring compliance with the principle that judgment must be given within a reasonable time.

In the absence of an infringement of European Union law, it cannot be considered that such a provision, in that its consequence, like that of any other provision providing for proceedings to be terminated before a decision is made on their substance, is to prevent the national court of final instance from exercising its power of review of lawfulness in the proceedings concerned in accordance with European Union law, possibly after making a reference to the Court under Article 267 TFEU, is contrary to the obligation on national courts of final instance to ensure, within their respective jurisdictions, the effective application of European Union law.

(see paras 32, 39, 41, 42, 44, 46, 47, operative part)