Case C‑493/15

Agenzia delle Entrate

v

Marco Identi

(Request for a preliminary ruling from

the Corte suprema di cassazione)

Reference for a preliminary ruling — Taxation — Value added tax — Article 4(3) TEU — Sixth Directive — State aid — Procedure discharging bankrupt natural persons from debts (esdebitazione) — Ineligibility of VAT debts)

Summary — Judgment of the Court (Seventh Chamber), 16 March 2017

Harmonisation of fiscal legislation — Common system of value added tax — Obligations on the Member States to ensure collection of all the value added tax — Insolvency — National procedure discharging bankrupt natural persons from debts — Ineligibility of VAT debts — Lawfulness — Classification as State aid — Not included

(Arts 4(3), TEU; 107(1) TFEU; Council Directive 77/388, Arts 2 and 22)

EU law, in particular Article 4(3) TEU and Articles 2 and 22 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, and the rules on State aid, must be interpreted to the effect that it does not preclude value added tax debts from being declared irrecoverable under national legislation, such as that at issue in the main proceedings, providing for a bankruptcy discharge procedure by means of which a court may, under certain conditions, declare irrecoverable the debts of a natural person which have not been settled by the close of the bankruptcy proceedings initiated against that person.

It is apparent from those considerations that, like the procedure for an arrangement with creditors examined in the judgment of 7 April 2013, Degano Trasporti (C‑546/14, EU:C:2016:206, paragraph 28), the bankruptcy discharge procedure at issue in the main proceedings is subject to strict conditions for its application offering guarantees so far as concerns, inter alia, the recovery of VAT claims and that, having regard to those conditions, it does not constitute a general and indiscriminate waiver of collecting VAT and is not contrary to the obligation on Member States to ensure collection of all of the VAT due on their territory as well as the effective collection of the European Union’s own resources (see judgment of 7 April 2016, Degano Trasporti, C‑546/14, EU:C:2016:206, paragraph 28).

So far as concerns the condition relating to the selectivity of the advantage, which is a constituent factor in the concept of ‘State aid’, within the meaning of Article 107(1) TFEU, it is clear from equally settled case-law of the Court that the assessment of that condition requires a determination whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and who accordingly suffer different treatment that can, in essence, be classified as discriminatory (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54 and the case-law cited). Further, it must be recalled that the fact that only taxpayers satisfying the conditions for the application of a measure can benefit from the measure cannot, in itself, make it into a selective measure (see, to that effect, judgments of 29 March 2012, 3M Italia, C‑417/10, EU:C:2012:184, paragraph 42, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 59).

(see paras 24, 26, 27, 30, operative part)