Case C-216/04: Reference for a preliminary ruling by the Consiglio di Stato in sede guirisdizionale, Sezione Quinta, by order of that court of 27 January 2004 in the case of SABA Italia SpA against the Comune di Bolzano and SEAB SpA
Date: 2004-07-24
Institutions: Court of Justice
Subjects: EU law - national law, Trentino-Alto Adige, award of contract, company with share capital, interpretation of the law, parking area, services contract

C 190/8

EN

Official Journal of the European Union

24.7.2004

Reference for a preliminary ruling by the Consiglio di
Stato in sede guirisdizionale, Sezione Quinta, by order of
that court of 27 January 2004 in the case of SABA Italia
SpA against the Comune di Bolzano and SEAB SpA

(Case C-216/04)

(2004/C 190/13)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato in sede
guirisdizionale (Council of State sitting as a court) of 27
January 2004, received at the Court Registry on 24 May 2004,
for a preliminary ruling in the case of SABA Italia SpA against
the Comune di Bolzano and SEAB SpA on the following ques-
tion:

‘Is the direct award, that is to say,
in derogation from the
procedures for the selection of contractors laid down in Direc-
tive 92/50/EEC (1), of the management of public pay car parks
to a public limited company the entire capital of which is
publicly owned within the meaning of paragraph 6(b) of
Article 44 of Law No 1 of the Region of Trentino-Alto Adige
of 4 January 1993, as amended by Article 10 of Regional Law
No 10 of 23 January 1998, compatible with Community law,
in particular with the freedom to provide services, the prohibi-
tion of discrimination and the obligation to guarantee equal
treatment, transparency and free competition referred to in
Articles 12, 45, 46, 49 and 86 of the EC Treaty?’

(1) OJ L 209 of 24.07.1992, p. 1.

Reference for a preliminary ruling by the Corte Suprema
di Cassazione – Sezione Quinta Civile – by order of that
court of 23 March 2004 in the case of Ministero dell'Eco-
nomia e delle Finanze against Cassa di Risparmio di
Firenze S.p.A., Fondazione Cassa di Risparmio di San
Miniato e Cassa di Risparmio di San Miniato S.p.A.

(Case C-222/04)

(2004/C 190/14)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Corte Suprema di Cassa-
zione – Sezione Quinta Civile – (Supreme Court of Cassation –
Fifth Civil Chamber), Italy, of 23 March 2004, received at the
Court Registry on 28 May 2004.

(a) Must a group of bodies (namely banking foundations),
created on the basis of Law No 218/90 and Legislative
Decree No 356/90, as subsequently amended, be consid-
ered to be subject to the Community rules on competition
– even where they are assigned objects of social benefit –
as a result of owning controlling holdings in companies
engaged in banking activity and as a result of administering
those holdings, in relation to a very large number of bodies
the
operating on the market, with the proceeds of
controlled undertakings devolving to the latter? With
regard to the rules introduced by Legislative Decree No
153/99, does the possibility afforded those entities of using
the proceeds of the disposal of such holdings to acquire
and manage substantial shareholdings in other undertakings
– including banking undertakings – for different purposes,
including the economic development of the system, simi-
larly constitute a commercial activity for the purposes of
the application of Community law on competition?

(b) Consequently, are those entities, under the rules contained
in Law No 218/90 and Legislative Decree No 356/90, as
subsequently amended, as well as the reform contained in
Law No 461/98 and Legislative Decree No 153/99, subject
to the Community rules on State aid (Articles 87 to 88 of
in relation to a preferential tax regime
the EC Treaty),
which applies to them?

(c) If question (b) above is answered in the affirmative, does or
does not
tax relief on dividends
received, which is at issue in this case, constitute State aid,
within the meaning of Article 87 of the EC Treaty?

the system of direct

(d) Again, if question (b) above is answered in the affirmative,
is the Decision of the European Commission of 22 August
2002 (1), in which the rules on State aid were held to be
inapplicable to the foundations of banking origin, valid,
having regard to the issues of lawfulness and the lack and/
or inadequacy of reasoning set out in this order for refer-
ence?

(e) Leaving out of consideration the question whether the rules
on State aids are applicable, does according more favour-
able tax treatment to the distribution of the profits of the –
exclusively national – conferred banking undertakings,
controlled by the foundations, and received by the latter, or
of those undertakings in which holdings were acquired
using the proceeds
from the disposal of holdings in
conferred banking companies, constitute discrimination
against the undertakings invested in as compared with the
other undertakings operating on the market and, at the
same time, infringe the principles of freedom of establish-
ment and the free movement of capital, in relation to Arti-
cles 12, 43 et seq and Article 56 et seq of the EC Treaty?

For a preliminary ruling in the case of Ministero dell'Economia
e delle Finanze against Cassa di Risparmio di Firenze S.p.A.,
Fondazione Cassa di Risparmio di San Miniato e Cassa di
Risparmio di San Miniato S.p.A. on the following questions:

(1) OJ L 55, 1.3.2003, p. 56.