Commission Decision (EU) 2023/2103 of 3 March 2023 on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy (notified under document C(2023) 1287)
Date: 2023-03-03
Institutions: Directorate-General for Competition, European Commission
Subjects: Italy, State aid, aid to undertakings, control of State aid, local tax, property tax, real property, reimbursement of aid, tax exemption




L_202302103EN.000101.fmx.xml












Official Journal of the European Union


EN
Series L













2023/2103


6.10.2023







            COMMISSION DECISION (EU) 2023/2103
of 3 March 2023
         
on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy


(notified under document C(2023) 1287)


(Only the Italian text is authentic)
(Text with EEA relevance)


THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,


Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,


Having called on interested parties to submit their comments pursuant to the provisions cited above and having regard to their comments,

Whereas:
1.   PROCEDURE







(1)


In 2006 and 2007, the Commission received a number of complaints essentially concerning the following two schemes implemented by Italy:






(1)


an exemption from the municipal tax on real estate (
                                    “imposta comunale sugli immobili”
                                 , “ICI”) for real estate used by non-commercial entities and intended exclusively for social assistance, welfare, health, cultural, educational, recreational, accommodation, sports and religious activities (Article 7(1)(i) of Legislative Decree No 504 of 30 December 1992).










(2)


Article 149 of the Income Tax Code (
                                    “Testo Unico delle Imposte sui Redditi”
                                 , “TUIR”) approved by Presidential Decree No 917 of 22 December 1986, which in their view granted a favourable tax treatment to ecclesiastical institutions and amateur sports clubs.














(2)


By decision of 12 October 2010 (1) (“the Opening Decision”), the Commission initiated the formal investigation procedure laid down in Article 108(2) of the Treaty in respect of the two schemes mentioned in recital (1).










(3)


In January 2012, Italy replaced ICI by the single municipal tax (
                        “Imposta municipale unica”
                     , “IMU”) and introduced new provisions laying down an exemption for non-commercial entities performing specific activities (2).










(4)


Following the publication of the Opening Decision, the Commission received comments from the Italian authorities and from 80 interested parties. The comments of the complainants and of the Italian authorities referred both to the exemption under ICI and to the exemption under the new IMU legislation.










(5)


By Commission Decision 2013/284/EU (3) (“the Final Decision”), the Commission closed the formal investigation procedure. In its Final Decision, the Commission found that the exemption granted under the ICI rules to non-commercial entities carrying on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92 (“the measure” or “the ICI exemption”) constituted State aid that was incompatible with the internal market and had been unlawfully implemented by Italy, in breach of Article 108(3) Treaty on the Functioning of the European Union (TFEU). Further, the Commission considered that, in view of the particular circumstances of the case, it would be absolutely impossible for Italy to recover the unlawful aid. The Commission therefore did not order recovery of the aid. In addition, the Commission found that neither Article 149(4) of the TUIR nor the exemption under the new IMU scheme constituted State aid within the meaning of Article 107(1) TFEU.










(6)


On 16 April 2013, Mr Ferracci and Scuola Elementare Maria Montessori Srl each brought an action for annulment of the Final Decision. The General Court of the European Union (“the General Court”) dismissed the actions in their entirety in its judgments of 15 September 2016 in Case T-219/13 and Case T-220/13 (4).










(7)


By their appeal in Case C-622/16 P, Scuola Elementare Maria Montessori Srl sought to have set aside the judgment of the General Court in Case T-220/13, dismissing as unfounded the action for the annulment of the Final Decision. By its appeals in Cases C-623/16 P and C-624/16 P, the Commission sought to have set aside the judgment in Cases T-219/13 and T-220/13, in so far the General Court declared the actions at first instance admissible.










(8)


In its judgment of 6 November 2018 in Joined Cases C-622/16 P to C-624/16 P (“the Judgment”) (5), the Court of Justice of the European Union (“the Court of Justice”) set aside the judgment of the General Court in Case T-220/13 in so far as it dismissed the action brought by Scuola Elementare Maria Montessori Srl for the annulment of the Final Decision, to the extent that the Commission did not order recovery of the unlawful aid granted by means of the ICI exemption. In addition, the Court of Justice partially annulled the Final Decision to the extent that the Commission did not order recovery of the unlawful aid granted by means of ICI exemption. The Court of Justice dismissed the appeal in Case C-622/16 P as to the remainder; it also dismissed the appeals in Cases C-623/16 P and C-624/16 P.










(9)


Following the Judgment, the Commission resumed the procedure on the point of error of law identified by the Court of Justice. By letter dated 1 February 2019, the Commission invited the Italian authorities to comment on the methods of recovery set out by the applicants before the General Court (using IMU declarations, imposing a self-certification obligation and carrying out on-the-spot checks) (6) and to suggest alternative methods to overcome the difficulties related to the recovery of the aid.










(10)


The Italian authorities replied by letter of 26 March 2019, recalling a number of difficulties which, in their view, would establish an absolute impossibility to recover the aid.










(11)


By letter dated 21 June 2019, the Commission informed the Italian authorities that, based on a preliminary analysis, it considered that the difficulties alleged by the Italian authorities did not create an absolute impossibility to recover the aid. In addition, the Commission invited the Italian authorities to comment on the recovery methods of using self-declarations by the beneficiaries and of relying on other sources of information.










(12)


By letter dated 4 November 2019, the Commission reiterated its request to the Italian authorities to identify and propose alternative methods of recovery.










(13)


A technical meeting between the Commission and the Italian authorities was held on 5 December 2019.










(14)


By letter dated 13 February 2020, the Italian authorities submitted further comments on the recovery methods, insisting on the existence of an absolute impossibility to recover the aid.




2.   SCOPE OF THIS DECISION







(15)


In its Judgment, the Court of Justice of the European Union annulled the Final Decision only in so far as the Commission did not order the recovery of the unlawful aid granted by means of the ICI exemption.










(16)


All other aspects of the Final Decision have become final. This includes in particular the findings that: (i) the ICI exemption constitutes unlawful and incompatible aid, (ii) the IMU exemption and Article 149 of TUIR do not constitute aid, (iii) Italy and aid beneficiaries did not enjoy legitimate expectations that the aid was lawful, and (iv) the information available in the tax and cadastral databases are not sufficient on their own to allow recovery of the aid.










(17)


The purpose of this Decision is to reassess whether recovery of the unlawful aid granted by means of the ICI exemption should be ordered. In this respect, this Decision complements the Final Decision and does not intend to modify any other conclusion reached therein.




3.   DESCRIPTION OF THE ICI EXEMPTION







(18)


The ICI exemption is described in detail in Section 2.1 of the Final Decision. According to Article 7(1)(i) of Legislative Decree No 504/92, real estate used by non-commercial entities exclusively for social assistance, welfare, health, educational and accommodation services and cultural, recreational, sports and religious activities was exempted from ICI.










(19)


According to Article 7(2a) of Decree Law No 203 of 30 September 2005 (7), the exemption provided for by Article 7(1)(i) of Legislative Decree No 504/92 was applicable to the activities listed there, even if they were of a commercial nature. Pursuant to Article 39 of Decree Law No 223 of 4 July 2006 (8), that exemption applied only if the activities in question were not exclusively of a commercial nature.










(20)


The ICI was replaced by the IMU as of 1 January 2012.




4.   GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE







(21)


The grounds for initiating the formal investigation procedure are described in Section 3 of the Final Decision. This Decision is part of the same formal procedure.




5.   COMMENTS FROM THE ITALIAN AUTHORITIES AND INTERESTED THIRD PARTIES ON THE RECOVERY OF THE AID

5.1.   Comments received before the Final Decision







(22)


Pursuant to Article 20(2) of Regulation (EC) No 659/1999 and in response to the invitation published in the Official Journal of the European Union (9), the Commission received comments from the Italian authorities and from 80 interested third parties, which are described in section 4 of the Final Decision. The current section will only summarise the comments received in relation to the recovery of the aid granted by means of the ICI exemption.










(23)


Two of the 80 interested parties (“the two interested parties” or “the complainants”) considered that in any case, the Commission should order the recovery of the aid unlawfully granted under the ICI exemption from 2006 to 2012 (see recital (90) of the Final Decision).










(24)


In their comments on the Opening Decision, the Italian authorities had argued that it is not possible to identify retroactively which real estate belonging to non-commercial entities was used not exclusively for commercial activities (and which therefore benefited from the ICI exemption) (see recital (93) of the Final Decision). The cadastral data do not in fact provide any information on the type of activity performed in a property. Nor is it possible to identify from the other tax databases which real estate was used by non-commercial entities for institutional activities performed on a non-exclusively commercial basis.




5.2.   Comments received after the Judgment







(25)


Following the Judgment, the Commission invited the Italian authorities to comment on the existence of alternative methods to overcome the difficulties related to the recovery of the aid (see recitals (9)-(14)). Specifically, the Commission referred to the following alternative recovery methods: (i) using the declarations submitted under the IMU rules to determine whether or not the real estate could have been used for commercial purposes in the past, (ii) using a self-certification obligation, (iii) carrying out on-the-spot checks using inspection bodies, (iv) using self-declaration from beneficiaries and (v) relying on other sources of information and evidence.










(26)


Regarding the use of self-declarations, the Commission noted that self-declaration seemed to be the method originally used for payment of ICI (absent the exemption). As regards other possible sources of information and evidence, the Commission mentioned, by way of example, the records stemming from regulatory obligations (such as national/regional/municipal activity licenses, declarations of initiation of activity, building/works licenses), records of controls (e.g. license requirements verifications, compliance with specific building regulations, food inspections), detailed description of their activities included in the annual account documents filed by some of the entities, as well as any other information kept at the level of the municipalities or by third parties.










(27)


In addition, the Commission asked the Italian authorities to explain whether there could be other alternative methods to quantify the aid to be recovered and to explain how the Italian authorities intended to carry out ex post checks that the conditions to benefit from the ICI exemption were fulfilled by the beneficiaries during the time that ICI was levied.




5.2.1.   General remarks







(28)


The Italian authorities consider that in its Judgement the Court of Justice clarified that recovery of unlawful aid may be considered to be objectively and absolutely impossible if two cumulative conditions are satisfied: (i) the difficulties pleaded by the Member State concerned are real and (ii) there are no alternative methods of recovery. The Italian authorities argue that these two conditions are met in the case at hand.










(29)


Furthermore, the Italian authorities consider that the information necessary to identify the beneficiaries must enable to establish in objective and absolute terms which real estate belonging to non-commercial entities was used (non-exclusively) for commercial activities of the type indicated in the ICI exemption provisions and to calculate the amount of tax to be recovered.










(30)


The Italian authorities explain that ICI was administered by local authorities, i.e. the approximately 8 000 municipalities in which the country is divided. The tax was due on a yearly basis. Real estate owners were in principle required to submit a declaration unless any of the exemptions under Article 7(1) applied (10). Non-commercial entities carrying out specific activities were covered by Article 7(1)(i). ICI was introduced in 1992; according to the Italian authorities, the non-submission of declarations by entities that were exempted from the payment of that tax responded to a need of administrative simplification. By contrast, IMU, introduced in 2012, provided for electronic declarations and beneficiaries of that exemption had to present a self-declaration in all cases.










(31)


The Italian authorities explain how fulfilment with the conditions of the ICI exemption was verified. The law lays down procedures for the selection, verification and assessment for which the local authorities are competent. Local authorities could rectify incomplete or untrue declarations or partial or delayed payments. In those cases, they proceeded with an automatic assessment of outstanding declarations or payments, by serving the taxpayer a reasoned notice. The time limit for that assessment expired within five years from the time when the payment should have been made. In the reasoned notice, the municipalities could invite taxpayers to produce or submit documents, send questionnaires to the taxpayers and ask them to return them filled in and signed. They could also request information on individual taxpayers from the relevant public authorities. Following the analysis of the evidence gathered, on-the-spot checks could be carried out for the purposes of the final examination. However, the Italian authorities argue that the checks were aimed at verifying compliance with the conditions of the ICI exemption, which would be different from verifying whether individual beneficiaries actually received State aid in the light of the Final Decision.




5.2.2.   Not all beneficiaries of the ICI exemption are undertakings or received an advantage that could distort competition







(32)


At the outset, the Italian authorities argue that not all beneficiaries of the ICI exemption received State aid within the meaning of Article 107 TFEU and that it is not possible to distinguish the beneficiaries that received aid from those that did not.










(33)


First, the Italian authorities submit that not all beneficiaries of the ICI exemption should be considered undertakings, as not all of those beneficiaries carried out economic activities. They recall that the Final Decision did not establish that all activities falling under the ICI exemption were economic. The Final Decision only established that the non-commercial entities benefitting from the ICI exemption were undertakings, in so far as they performed economic activities (see recital (106) of the Final Decision). Furthermore, the Italian authorities indicate that it would be necessary to identify the real estate/portions of real estate in which the entities in question were engaged in economic activities during the period covered by the recovery.










(34)


In addition, the Italian authorities consider that, even in instances where the beneficiaries carried out economic activities, the advantage granted by means of the ICI exemption was not always liable to distort competition.










(35)


Further, the Italian authorities submit that the social objectives pursued by the ICI exemption are intrinsic to the ICI tax system. They point out that ICI is the main source of financing of the municipalities, which are the main players in the social activities covered by the ICI exemption, and that the intervention of philanthropic or cooperative bodies, as recognised by the Constitution, is supplementary to public intervention. The purpose of the ICI exemption was to facilitate activities meeting social needs that are not always met by public bodies and are often outside the sphere of action of private operators.










(36)


The Italian authorities also argue that it could be assumed that the majority of the recipients of the aid would fall within the scope of the de miminis Regulations: (i) Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid and (ii) Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest.










(37)


The Italian authorities argue that only a limited subset of beneficiaries of the ICI exemption received State aid within the meaning of Article 107 TFEU and that recovery cannot be ordered from beneficiaries that did not receive State aid. Further, the Italian authorities consider that it is not possible, on the basis of available evidence, to distinguish beneficiaries of the ICI exemption which received State aid from those that did not.




5.2.3.   The rights of taxpayers and objective evidence







(38)


The Italian authorities argue that any effective recovery method must be based on conclusive and objective information. Recovery must be carried out in full compliance with the principles of legal certainty, legitimate expectations and right to be heard of the taxpayers, as expressly recognised in the Charter of Fundamental Rights. In their view, circumstantial evidence cannot be used to identify the aid beneficiaries and the recovery amounts. The Italian authorities consider that it is not possible to carry out a tax assessment on the basis of mere presumptions.










(39)


Furthermore, the taxpayers cannot be asked to prove that they did not receive aid. According to the Italian authorities, the taxpayers would not have the necessary information for the checks to be carried out, in particular when the record keeping obligations might have expired. (11) According to the Italian authorities, it cannot be considered that the taxpayers did not act in good faith, by not keeping the relevant records, as the Final Decision, establishing the impossibility to recover, was to be regarded as legitimate in all respects until 8 November 2018, date when the Judgment of the Court of Justice was delivered.




5.2.4.   Tax and cadastral databases







(40)


The Italian authorities consider that it has already been acknowledged by the Commission in its Final Decision and confirmed by the judgments of the General Court and the Court of Justice, that the information in tax and cadastral databases cannot be used as a recovery method. The Italian authorities also recall, in essence, the arguments and explanations already provided and assessed in the Final Decision (see recital (93) of the Final Decision).




5.2.5.   The IMU declarations







(41)


According to the Italian authorities, the IMU, introduced as from 2012, is different from the ICI and therefore the eligibility conditions for non-commercial entities to benefit from the tax exemption do not overlap (12). IMU declarations only show whether commercial activities were carried out in a specific year (as from 2012). (13) Since the eligibility conditions of the ICI exemption require determining the actual activity carried out in the real estate at the time the exemption was granted and the actual use of the real estate may change from one year to another, the information in the IMU declarations cannot be projected backwards to identify either the beneficiaries of the ICI exemption or the actual use of the real estate. For these reasons, the information contained in the IMU declarations could at best provide presumptive evidence that would not be appropriate in itself to provide the necessary legal certainty that the real estate was used on a commercial basis in the years the unlawful ICI exemption was in force, i.e. the years relevant for the recovery. Furthermore, no information would be available on beneficiaries from the ICI exemption that ceased or modified their activity or no longer own the property.




5.2.6.   Carrying out on-the-spot checks







(42)


According to the Italian authorities, carrying out on-the-spot checks can provide information in relation to the present but not in relation to the past, unless they are limited to the documentation retained under legal obligations.










(43)


Further, this would be an extremely long and invasive process, as these checks should be carried out by each of the almost 8 000 municipalities, within the limits of their competences.










(44)


In addition, on-the-spot checks would require prior identification of the persons and information to be checked and could not be used to identify the entities that are no longer present on the territory of a given municipality or are no longer non-commercial entities.




5.2.7.   Other sources of information







(45)


The Italian authorities acknowledge that the type of activities eligible for the ICI tax exemption were subject to administrative authorisations. However, they submit that the commercial or non-commercial way of carrying out the activities cannot be inferred from the authorisation. They add that the authorisation to carry out the activity is not necessarily linked to the use of the individual property. Furthermore, it is necessary to determine the actual activity carried out in the real estate, including the specific manner in which that activity is conducted. Thus, this information cannot be inferred exclusively from documents attesting the intended use of a property.




5.2.8.   The expiry of record-keeping obligations







(46)


The Italian authorities argue that accounting documentation could not provide information on the actual use of the real estate either. Moreover, most of the documentation would not be traceable if the relevant retention periods have expired (usually 10 years). In that regard, the Italian authorities note that the Commission has acknowledged in past decisions that the expiry of the retention periods leads to an absolute impossibility to carry out the recovery. (14) Furthermore, the Italian authorities consider that the examination of accounting documentation presupposes the prior identification of the persons to be checked and cannot be used to identify those persons. In any event, the Italian authorities consider that recovery cannot cover aid that has become time-barred due to the 10 year limitation period provided under Article 17 of Council Regulation (EU) No 2015/1589 (15) (“Procedural Regulation”).




5.2.9.   The identification of religious entities







(47)


In light of press articles suggesting that the beneficiaries of the ICI exemption were mostly entities belonging to the Catholic Church, the Italian authorities deem it necessary to explain that religious affiliation cannot be used to identify the recipients of aid. They submit that the Italian Constitution and the Charter of Fundamental Rights of the European Union prohibit discrimination based on religion, thus it is not possible to identify the beneficiaries based on religious affiliation. The Circular 2/DF of 26 January 2009 mentions 
                              “ecclesiastical bodies belonging to the Catholic Church and other religious denominations”
                            among the entities that can be covered by the exemption at stake (see recitals (26)-(29) of the Final Decision). However, according to the Italian authorities, religious affiliation was not a criterion to determine the subjective scope of application of the ICI exemption. Circular 2/DF of 26 January 2009 clarified the notion of non-commercial entities and identified the criteria that the relevant activities performed by these entities should have fulfilled to benefit from the ICI exemption. Further, they point out that belonging to the Catholic Church was not a condition to benefit from the ICI exemption.




5.2.10.   Self-certification and self-declarations







(48)


The Italian authorities acknowledge that, in theory, it would be possible to identify some aid beneficiaries by imposing a self-certification (16) or self-declaration obligation. Those methods would not entail excessive costs or invasiveness.










(49)


However, those methods are not sufficient on their own to ensure recovery. A self-certification presupposes that the public administration already knows or is able to know what is being self-certified. Thus self-certification cannot be used for facts that no public authority knows or is able to know.










(50)


A self-declaration presupposes that the administration is able to check what is being self-declared. According to the Italian authorities, no administration in Italy would be able to check and verify the information declared or certified. This would therefore give rise to an irrefutable presumption that what is being self-declared or self-certified is accurate, without any possibility of planning and verifying the effectiveness of recovery.










(51)


In addition, there would be a risk of endorsing ex ante partial recovery addressed only to those who would decide to declare that they have benefited from the aid. The Italian authorities would have no recourse to investigate the entities who intentionally or unintentionally omit to declare. In the view of the Italian authorities, this would lead to a situation of unfairness and unequal treatment.




5.2.11.   A combination of the recovery methods







(52)


The Italian authorities conclude that none of the methods or even a combination of those methods could lead to a “neutral” and fully verifiable recovery of the aid. In their opinion, based on a combination of the recovery methods suggested, it could be possible to obtain some information for statistical purposes. However, the information could not be used for the recovery of the aid as this procedure must allow to identify with certainty the aid beneficiaries. Even in the event that certain information could be found, it would only be a fortuitous outcome.










(53)


In any event, the Italian authorities consider that the recovery procedure would be extremely difficult to coordinate in view of the number of municipalities which are the competent administration to implement recovery orders for the tax at issue, the lack of harmonised information and the overwhelming number of potential beneficiaries. Recovery would therefore be disproportionate to the aims pursued by the provisions of the Treaty on State aid.




6.   EXISTENCE OF UNLAWFUL AND INCOMPATIBLE AID







(54)


The assessment of the measure is described in recitals (96)-(150) of the Final Decision. In recitals (96)-(136) of the Final Decision, the Commission assessed the existence of State aid and concluded that the measure fulfils all the conditions laid down in Article 107(1) of the Treaty. In particular, in recitals (96)-(108) of the Final Decision, the Commission found that it could not be ruled out that some of the activities benefitting from the measure had an economic nature. The Commission also noted that, in order to classify a scheme as State aid, it is not necessary to demonstrate that all individual grants of aid under that scheme qualify as State aid. In recitals (137)-(142) of the Final Decision, the Commission established that the measure should be classified as new aid. In recitals (143)-(150) of the Final Decision, the Commission concluded that the measure is incompatible with the internal market.










(55)


As already stated in recitals (15)-(17), this Decision only deals with the recovery of that aid. All other aspects of the previous Final Decision have become final and it is not the purpose of this Decision to modify any of those conclusions.




7.   RECOVERY

7.1.   Assessment







(56)


In accordance with the first sentence of Article 16(1) of the Procedural Regulation, where the Commission finds that a Member State has granted unlawful aid, it must order that Member State to take all necessary measures to recover the aid. (17) It is settled case-law that the adoption of an order to recover unlawful aid is the logical and normal consequence of a finding that it is unlawful. The principal objective of such an order is to eliminate the distortion of competition caused by the competitive advantage conferred by the unlawful aid. (18)











(57)


However, pursuant to the second sentence of Article 16(1) of the Procedural Regulation, the Commission is not to require the recovery of the aid if this would be contrary to a general principle of Union law, such as the principle that ‘no one is obliged to do the impossible’. (19) The Commission may therefore not adopt a recovery order, which, from the moment of its adoption, is objectively and absolutely impossible to implement. (20)











(58)


The Court of Justice has clarified the conditions of application of this exception in its Judgment. According to the Court of Justice, where a Member State encounters difficulties in recovering the aid concerned, it must submit those difficulties to the Commission for consideration and cooperate in good faith with the Commission with a view to overcoming them, in particular by suggesting alternative methods allowing recovery, if only in part, of the aid. (21)











(59)


The Commission is required to undertake a detailed examination of the difficulties pleaded and the suggested alternative methods of recovery. Only if the Commission finds, following such a detailed examination, that there are no alternative methods allowing even partial recovery of the unlawful aid in question, that recovery may be considered to be objectively and absolutely impossible to carry out. (22)











(60)


In the case at hand, the Italian authorities had already argued the impossibility to carry out the recovery on the basis of the lack of the relevant information in the tax and cadastral databases (see recital (24)). The Commission considered that, in those circumstances, it was not possible to obtain the necessary information to calculate the amount of tax to be recovered and thus the recovery would be impossible in objective and absolute terms (see recitals (93), (182) and (191)-(198) of the Final Decision).










(61)


However, the Court of Justice considered that “the condition of absolute impossibility of implementation is not satisfied where the [...] Member State does no more than inform the Commission of the internal difficulties of a legal, political or practical nature, attributable to the national authorities’ own acts or omissions, raised by implementation of the decision at issue, without taking real steps to recover the aid from the undertakings concerned and without suggesting to the Commission alternative methods of implementing the decision which would allow those difficulties to be overcome” (par. 91 of the Judgment).










(62)


In their comments submitted following the Judgment (see recitals (25)-(53)), the Italian authorities have further developed their arguments that there is an absolute impossibility to recover the aid.










(63)


In the following sections, the Commission will therefore examine the difficulties and arguments pleaded by the Italian authorities. In particular, the Commission will assess whether there are no alternative methods allowing even partial recovery of the unlawful aid such that recovery may be considered to be objectively and absolutely impossible to carry out.




7.1.1.   General remarks







(64)


Legislative Decree No 504/92 introduced ICI, a real estate tax administered by local administrations. All physical and legal persons in possession of real estate were liable to pay the tax, which was calculated on the cadastral value (see recital (22) of the Final Decision). The Italian authorities explain that taxpayers were in principle required to submit a declaration to fulfil their obligations under ICI, with the exception of the beneficiaries of the exemption under Article 7(1) (including non-commercial entities carrying out specific activities laid down by Article 7(1)(i)).










(65)


The local authorities enjoyed powers to verify taxpayers’ compliance with the conditions of the ICI exemption. Within five years from the due date for the payment of the tax, they could (i) invite taxpayers to produce or submit documents, (ii) send questionnaires to taxpayers relating to specific information, (iii) request information on individual taxpayers from other relevant public authorities, (iv) analyse the evidence gathered, and (v) carry out on-the-spot checks for the final assessment.










(66)


The Commission considers that the powers conferred on the local authorities to verify the compliance with the conditions of the ICI exemption are not significantly different from the recovery methods on which the Commission invited the Italian authorities to comment. Verification of the compliance with the conditions of the ICI exemption required, in particular, that the powers conferred on the local authorities would enable them to obtain information on the nature of the activities carried out in the real estate and to verify that those activities were not exclusively of a commercial nature. Since local authorities could use their powers within a five-year period from the due date for the payment of the tax, it is clear that the Italian legislator considered feasible for local authorities to obtain relevant evidence even several years after the reference period in question, i.e. at a time where the nature of the activity could have changed.




7.1.2.   Not all beneficiaries of the ICI exemption are undertakings or received an advantage that could distort competition







(67)


The Italian authorities argue that not all beneficiaries of the ICI exemption received State aid. In particular, not all beneficiaries qualify as undertakings, as not all beneficiaries exercised economic activities, and the individual advantage granted through the ICI exemption was not in each case liable to distort competition. Further, they submit that the majority of the recipients of the aid would fall within the scope of the de miminis Regulations: (i) Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid or (ii) Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest. In addition, they argue that the objectives pursued by the ICI exemption are inherent to the ICI tax system (see recitals (32)-(37)).










(68)


The Commission agrees that there may be situations where the individual advantage granted through the ICI exemption does not qualify as State aid because the beneficiaries did not exercise economic activities. In its Final Decision, the Commission did not find – as it did not need to – that all activities covered by the scheme were economic in nature. The Commission found that at least some of these activities were economic and that some individual applications of the scheme involved State aid (see recitals (96)-(108) of the Final Decision and recital (54) of this Decision). The conclusions of the Final Decision therefore do not run contrary to the possibility that individual applications of the ICI exemption do not fulfil all the conditions to constitute aid within the meaning of Article 107(1) TFEU. Such situations should not be subject to recovery.










(69)


At the same time, as clarified by the case law, the identification of the concrete situations where the application of the measure involved State aid belongs to the recovery stage (23). The Italian authorities do not raise any specific difficulty to carry out the recovery, other than the need to assess whether each individual situation fulfils the conditions to constitute aid within the meaning of Article 107(1) TFEU. The Commission considers that this argument in itself is not sufficient to establish an absolute impossibility to recover.










(70)


The same applies for instances where a beneficiary of the ICI exemption exercised both non-economic and economic activities in the same real estate, and it will be necessary, in the recovery procedure, to identify the real estate/portions of real estate that are used for economic activities and those that are used for non-economic activities.










(71)


As regards the possibility that individual applications of the ICI exemption may not be liable to distort competition or have an effect on trade between Member States, the Commission has already assessed in its Final Decision the arguments of the Italian authorities and other interested parties. The Commission found that at least some of the sectors from the ICI exemption were exposed to competition and trade within the Union (see recitals (133) and (134) of the Final Decision). As the Commission did not assess each individual application under the scheme, it is not a priori excluded to find individual situations that do not lead to a distortion of competition or do not have an effect on trade (24). At the same time, it should be clear that the identification of these situations belongs to the recovery stage.










(72)


The above is without prejudice to the consideration of the individual aids under the applicable de minimis Regulations (25), when the conditions of those Regulations are fulfilled.




7.1.3.   Rights of taxpayers and objective evidence







(73)


The Italian authorities argue, in essence, that the recovery of the aid cannot be carried out if the beneficiary of the aid and the aid amount cannot be determined on the basis of objective evidence and respecting taxpayers’ rights, such as the right to be heard, as recognised in the Charter of Fundamental Rights, and without imposing a disproportionate burden of proof on the taxpayers.










(74)


The Commission agrees that the recovery of the aid must be carried out respecting taxpayers’ rights, in particular those enshrined in the Charter of Fundamental Rights of the European Union. However, the Italian authorities have not demonstrated that recovery of the unlawful aid would necessarily lead to a breach of those rights. The Commission considers that the argument put forward by the Italian authorities is relevant for the assessment of individual situations in the implementation of the recovery of the aid. However, the risk of breach of fundamental rights cannot be accepted as leading to an absolute impossibility to recover the aid in all cases, without taking real steps to recover the aid from the undertakings concerned.










(75)


In accordance to Article 16(3) of the Procedural Regulation, recovery shall be effected following the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. The Commission cannot agree that circumstantial evidence can be a priori discarded. In this respect, the Italian authorities must take into account all types of evidence available in each individual case, with a view to achieving effective recovery.










(76)


The Italian authorities also refer to the principles of legitimate expectations and legal certainty. In particular, they consider that the taxpayers cannot be put in a situation to bear the burden of proving that they did not receive the aid, especially when the record keeping obligations could have expired. This argument will be examined in section 7.2.




7.1.4.   Tax and cadastral databases







(77)


The Italian authorities consider that it has already been established by the Commission and confirmed by the judgments of the General Court and of the Court of Justice that the information in tax and cadastral databases cannot be used as a recovery method. The Commission acknowledges that the information available in the tax and cadastral databases are not sufficient on their own to allow recovery of the aid (see recital (16)).




7.1.5.   IMU declarations







(78)


The Italian authorities argue, in essence, that IMU is different from ICI so that IMU declarations cannot be projected backwards in time to identify the beneficiaries and to determine the actual use of the real estate. The use of information in IMU declarations could at best provide presumptive evidence.










(79)


The Commission agrees that the information contained in the IMU declarations would not be sufficient in itself to establish the actual use of the real estate before 2012, as the actual use can change from year to year and because the eligibility conditions of the ICI exemption are different from those of the IMU exemption. Therefore this recovery method could not be used alone to recover the aid.










(80)


At the same time, the Commission considers that the information in the IMU declarations could provide information about the activities carried out in the real estate as from 2012 (i.e. from the first year of application of IMU, replacing ICI), and thus it could help identifying at least an indicative list of potential beneficiaries of the ICI exemption. If that information is consistent with other relevant elements, it may help to establish a body of evidence.




7.1.6.   Carrying out on-the-spot checks







(81)


According to the Italian authorities, basing the recovery on on-the-spot checks would be extremely long, invasive and would require the prior identification of the subjects to be checked by means of another method. In addition, in their view, carrying out on-the-spot checks by inspection bodies can provide information in relation to the present but not in relation to the past. The quality of information obtained during on-the-spot checks may not allow to establish the use of the real estate to the required legal standard.










(82)


The Commission recognises that on-the-spot checks can be burdensome both for the administrations and for the taxpayers. However, whenever objectively and legally feasible, on-the-spot checks could provide information in relation to the actual use of the real estate in the past, in particular if the quality of the information obtained by different means will not meet the required legal standard to carry out the recovery. The information that on-the-spot checks can provide will vary from case to case. While it is reasonable to assume that the efficacy of on-the-spot checks decreases with the time elapsed from the facts that need to be established, it is not possible to conclude that none of the on-the-spot checks could provide objective evidence to the required legal standard. For example, it cannot be excluded that some beneficiaries kept accounting documentation even beyond record keeping limitation periods and that they would make this accounting documentation available to the authorities. The effectiveness of on-the-spot checks will generally be linked to the prior identification of potential beneficiaries by means of other recovery methods or to other consistent elements, to establish a body of evidence.




7.1.7.   Other sources of information







(83)


The Italian authorities acknowledge that the type of activities eligible for the ICI tax exemption are subject to administrative authorisations (see recital (45)). However, they explain that the commercial or non-commercial way of carrying out the activities is not subject to authorisation and that the authorisation to carry out those activities is not necessarily linked to the actual use of the property.










(84)


The Commission considers that even if those records could not be sufficient to establish conclusively the actual use of a real estate, it cannot be excluded that they could provide useful information in preparation of the list of potential beneficiaries, to be further confirmed through other recovery methods.




7.1.8.   The expiry of record-keeping obligations







(85)


The Italian authorities explain that accounting documents could not provide information on the actual use of the real estate. The Italian authorities explain that the expiry of the retention periods (usually 10 years) has been acknowledged by the Commission as an absolute impossibility to carry out the recovery in its Decision of 14 August 2015 on the measures SA.33083 and SA.35083 (26). In their view, the examination of accounting documentation presupposes the prior identification of subjects to be checked and cannot be used for their identification.










(86)


The Commission acknowledges that the expiry of record-keeping obligations could raise difficulties in obtaining information from the beneficiaries. However, each case should be assessed on the basis of its own merits and the expiry of record-keeping obligations does not create in the present case an absolute impossibility of recovery.










(87)


The situation assessed by the Commission in its Decision C(2015) 5549 final of 14 August 2015 on the measures SA.33083 and SA.35083 is, in any event, not transposable to the recovery in the case at hand. In the very specific circumstances of those cases, which, unlike the present case, related to damages caused to undertakings by natural disasters, individual beneficiaries eligible for aid deemed compatible with the internal market under Article 107(2)(b) TFEU could no longer have at their disposal the documents needed to provide evidence of the damage caused by the natural disaster and to demonstrate whether or not they already received compensation for (all or part of) the damage suffered. Furthermore, such natural disasters had happened more than 10 years before the date of adoption of Decision C(2015) 5549 final, on 14 August 2015 (27).










(88)


Furthermore, the beneficiaries of the ICI exemption were aware, or at least should have been aware of the adoption of the 2010 Opening Decision (see recital (2)), expressing doubts on the lawfulness and compatibility of the measure with the internal market, of the 2012 Final Decision (see recital (5)), concluding that the measure amounted to unlawful incompatible aid, as well as of the pending litigation before the General Court, where the absolute impossibility to recover the unlawful and incompatible aid was challenged (see recitals (6)-(7)). Similarly, the beneficiaries of the ICI exemption were aware, or at least should have been aware, that in its Judgment of 2018 the Court of Justice had partially annulled the Final Decision in so far as it did not order recovery (see recital (8)), and that the Commission is required to undertake a detailed examination of the difficulties pleaded and the existence of alternative methods of recovery (see recital (59)).










(89)


In such circumstances, reasonably wise beneficiaries might have kept their accounts.










(90)


Moreover, as explained in Section 7.1.11 of this Decision, it cannot be excluded that the identification of the potential beneficiaries of unlawful aid in this case may be achieved through means other than the beneficiaries’ records. Finally, the Commission cannot accept the argument of the Italian authorities that recovery may have become time-barred (see recital (46)). According to Article 17(1) and (2) of the Procedural Regulation, recovery ordered by the Commission is subject to a limitation period of 10 years, which begins on the day on which the unlawful aid is awarded to the beneficiary. Any action taken by the Commission with regard to the unlawful aid shall interrupt the limitation period and each interruption shall start time running afresh. In the case at hand, the Commission sent requests for information to the Italian authorities on 5 May 2006, 5 November 2007 and 24 November 2008 (see recitals (2), (8), (12) of the Opening Decision). The Commission initiated the formal investigation procedure on 12 October 2010 (see recital (2)) and adopted the Final Decision on 19 December 2012 (see recital (5)). Furthermore, in accordance to Article 16(2) of the Procedural Regulation, the limitation period was suspended during proceedings before the Union Courts (see recitals (6)-(7)), until the date of delivery of the Judgment on 6 November 2018 (see recital (8)). After the Judgment, the Commission sent further requests for information to the Italian authorities on 1 February 2019, 21 June 2019 and 4 November 2019 (see recitals (9), (11) and (12)). In view of this, the limitation period of 10 years was never reached without being interrupted by an action of the Commission or the suspension derived from the pending proceedings before the Union Courts.




7.1.9.   The identification of religious entities







(91)


According to the Italian authorities, religious affiliation cannot be used to identify the recipients of aid as it could breach the Italian Constitution and the Charter of Fundamental Rights of the European Union.










(92)


The Commission considers that ordering the recovery of the aid neither constitute a breach of the Italian Constitution nor of the Charter of Fundamental Rights. The characteristics that allow the identification of the beneficiaries are determined by the scope of the ICI exemption, as laid down and applied by the Italian authorities. Furthermore, as explained in recitals (68)-(72), the recovery of the aid depends on the nature of the activities engaged by the entity. In so far as the activities in question may be classified as economic, the fact that they are carried out by a religious entity does not preclude the application of State aid rules (28).




7.1.10.   Self-certification and self-declarations







(93)


The Italian authorities indicate that it would be possible to identify aid beneficiaries by imposing a self-certification or a self-declaration obligation and that this method would not entail excessive costs or invasiveness. However, they argue that self-certification requires that the public administration already knows or is able to know what is being self-certified; and self-declaration requires the possibility of checking what is being self-declared. In both cases, there would otherwise be a risk of endorsing ex ante a partial recovery encompassing only those who may decide to declare that they have benefited from the aid, leading to a situation of unfairness and unequal treatment.










(94)


In addition, the Italian authorities already explained that the Italian tax system is based on the obligation for taxpayers to submit tax declarations (see recital (92) of the Final Decision and recitals (30)-(31) of this Decision) and on the duty by the tax authority (or, the relevant public body in charge) to carry out ex post checks of these declarations.










(95)


The Commission observes that there is a risk that some taxpayers may abuse the system by not self-declaring the actual nature of their activities in the relevant years. However, the risk of abuse is inherent to any tax system based on self-declarations. The provisions regulating ICI already laid down measures to mitigate the risk of abuse, inter alia, through the imposition of fines and by providing for ex post checks on the self-declarations. The Commission considers that the verifications and controls required to implement recovery of the unlawful aid do not differ substantially from those that should have been performed to verify if taxpayers met the conditions to benefit from the ICI exemption. Other methods (e.g. the IMU declarations) could be used together with the self-declarations to identify at least some of the potential beneficiaries thus further reducing the risk of abuse.










(96)


The Commission considers that the fact that some taxpayers may try to provide incorrect information in their self-declarations does not imply endorsing a partial recovery ex ante that would lead to a situation of unfairness and unequal treatment. According to settled case law, there is discrimination (i) where comparable situations are treated differently or (ii) where different situations are treated in the same way. (29) A beneficiary that makes a fraudulent self-declaration or a beneficiary that cannot retrieve the information to be declared is not in the same situation as a beneficiary who can provide the required information and is willing to do so. Further, a beneficiary that makes a fraudulent self-declaration runs the risk of being caught during additional verifications and ex post checks and may be subject to fines on top of reimbursing the unlawful aid received.










(97)


In addition, the Commission observes that the Court of Justice accepted the possibility of a partial recovery in its Judgment, in which it held that recovery could be considered to be objectively and absolutely impossible only if 
                              “there are no alternative methods allowing even partial recovery of the unlawful aid”
                           . (30) Lastly, the purpose of the recovery of unlawful aid is to restore a level playing field between competitors. Not ordering recovery where it would have been possible, even if partially, would maintain a situation where some undertakings have been unduly favoured compared to their competitors and thus to a greater discrimination.




7.1.11.   A combination of the recovery methods







(98)


The Italian authorities consider that none of the methods or even a combination of those methods could lead to a recovery of the aid. They consider that the available information cannot be used to identify the aid beneficiaries with certainty, and, even in the event that certain information could be found, it would only be a fortuitous outcome.










(99)


The Commission acknowledges the existence of difficulties to carry out the recovery of the unlawful aid. However, the difficulties pleaded by the Italian authorities are not sufficient to demonstrate an absolute impossibility to recover the aid, at least partially. The arguments put forward by the Italian authorities do not completely rule out the possibility of achieving at least a partial recovery, for example by using information from IMU declarations and/or requesting self-declarations from potential beneficiaries. Other methods (e.g. on-the-spot checks) may potentially be available to complement or verify the information collected through the above recovery methods.










(100)


The Commission also considers that implementing a partial recovery, should a full recovery not be possible, does not lead to a situation of unequal treatment.










(101)


Finally, the Commission considers that, while recovery raises certain difficulties and will probably require a combination of recovery methods, it is not disproportionate. As explained by the Court in its judgment of 29 April 2004 in case C-372/97, recovery is the logical consequence of a finding that a measure constitutes unlawful aid. (31) The Commission therefore does not exceed its powers by ordering recovery of unlawful aid, save in exceptional circumstances. In that regard, the Court has ruled that internal difficulties faced by a Member State do not constitute exceptional circumstances that would render recovery disproportionate. (32) The Commission therefore considers that the internal difficulties raised by the Italian authorities do not make recovery disproportionate in the case at hand.




7.2.   Legitimate expectations







(102)


For the reasons already explained in the Final Decision (see recitals (183)-(190) of the Final Decision), Italy and the 78 interested parties were not given any assurance by any institution of the Union that could justify legitimate expectations that the aid was lawful.










(103)


Nor could the conclusion of the Final Decision that recovery was absolutely impossible (see recitals (191)-(200) of the Final Decision) justify legitimate expectations that the aid would not be recovered. Indeed, an action against the finding of absolute impossibility to recover was brought before the Union Courts shortly after the Final Decision (33), which resulted in its partial annulment by the Judgment.




7.3.   Scope of recovery







(104)


The Union Courts have consistently held that the obligation on a Member State to abolish aid incompatible with the internal market is designed to re-establish the previously existing situation. (34) This objective is attained once the recipient has repaid the amounts granted by way of unlawful aid (including the recovery interest), thus forfeiting the advantage that it had enjoyed over its competitors on the internal market, and the situation prior to the payment of the aid is restored. (35)











(105)


Given that the ICI exemption was implemented in breach of Article 108(3) Treaty, and is to be considered as unlawful and incompatible aid, it shall be recovered in order to re-establish the situation that existed on the internal market prior to its granting. Recovery shall cover the time from the date when the aid was put at the disposal of the beneficiary until effective recovery. The amount to be recovered shall bear interest until effective recovery.










(106)


According to settled case-law, the Commission is not required to identify all beneficiaries of an aid scheme and to look at the individual situations of each of them in its recovery order. (36) Further, the Italian authorities have not provided the Commission with any information that would allow it to draw a list of the beneficiaries from which aid must be recovered. The identification of the aid recipients must therefore take place during the implementation of the recovery.










(107)


The scope of the measure was already established in the Final Decision. The amount of the aid to be recovered corresponds to the amount of the tax exemption enjoyed by the beneficiaries, i.e. the amount of ICI which non-commercial entities carrying on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92, to the extent that those activities are of economic nature, would have been obliged to pay in absence of the measure.










(108)


Given that the Commission assessed an aid scheme (see recitals (107) and (129) of the Final Decision), the Italian authorities are required to identify the beneficiaries and to examine in each individual case whether the individual advantages granted through the ICI exemption constitute aid within the meaning of Article 107(1) TFEU. In particular, the Italian authorities should examine whether individual awards concerned economic activities, are capable of distorting competition and affecting trade between Member States or meet all the conditions to fall under the applicable de minimis Regulations (see recitals (68)-(72)), an approved aid scheme or an exemption regulation.




8.   CONCLUSION







(109)


The State aid consisting in the municipal real estate tax exemption granted to non-commercial entities carrying on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92, unlawfully put into effect by Italy in breach of Article 108(3) of the Treaty, is incompatible with the internal market, as established in the Final Decision.










(110)


The Commission finds that the Italian authorities did not demonstrate an absolute impossibility to recover the unlawful aid granted by means of the ICI tax exemption. In those circumstances, recovery is the normal consequence of the finding of unlawful State aid in the Final Decision,




HAS ADOPTED THIS DECISION:



Article 1
Italy shall recover from the beneficiaries the incompatible aid granted under the measure referred to in Article 1 of Decision 2013/284/EU, i.e. the municipal real estate tax (ICI) exemption granted to non-commercial entities carrying on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92.


Article 2
Individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it is granted, it fulfils the conditions laid down by a regulation adopted pursuant to Article 2 of Council Regulation (EU) 2015/1588 (37) or pursuant to Article 2 of Council Regulation (EC) No 994/98 (38) which is applicable at the time the aid is granted.


Article 3
Individual aid granted under the scheme referred to in Article 1 which, at the time it is granted, fulfils the conditions laid down by a Regulation adopted pursuant to Article 1 of Regulation (EU) 2015/1588 or pursuant to Article 1 of Regulation (EC) No 994/98 or by any other approved aid scheme is compatible with the internal market, up to maximum aid intensities applicable to that type of aid.


Article 4

(1)   The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery.


(2)   The interest shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004 and to Regulation (EC) No 271/2008 amending Regulation (EC) No 794/2004.



Article 5

(1)   Recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective.


(2)   Italy shall ensure that this Decision is implemented within four months following the date of notification of this Decision.



Article 6

(1)   Within two months following notification of this Decision, Italy shall submit the following information:






(a)


the list of beneficiaries that have received aid under the scheme referred to in Article 1 and the total amount of aid received by each of them under the scheme;










(b)


the total amount (principal and recovery interests) to be recovered from each beneficiary;










(c)


a detailed description of the measures already taken and planned to comply with this Decision;










(d)


documents demonstrating that the beneficiaries have been ordered to repay the aid.






(2)   Italy shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted under the scheme referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries.



Article 7
This Decision is addressed to the Italian Republic.
The Commission may publish the identity of the beneficiaries of incompatible aid and the amounts of aid and recovery interest recovered in application of this decision, without prejudice to Article 30 of Council Regulation (EU) 2015/1589.




Done at Brussels, 3 March 2023.


For the Commission

Margrethe VESTAGER
            

Member of the Commission






(1)  
            OJ C 348, 21.12.2010, p. 17.

(2)  Law No 27 of 24 March 2012, complemented by an implementing regulation adopted on 19 November 2012.

(3)  Commission Decision 2013/284/EU of 19 December 2012 on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy (OJ L 166, 18.6.2013, p. 24).

(4)  Judgment of 15 September 2016, Pietro Ferracci v European Commission, T-219/13, EU:T:2016:485. Judgment of 15 September 2016, Scuola Elementare Maria Montessori Srl v European Commission, T-220/13, EU:T:2016:484.

(5)  Judgment of 6 November 2018, Scuola Elementare Maria Montessori Srl v European Commission, European Commission v Scuola Elementare Maria Montessori Srl and European Commission v Pietro Ferracci, C-622/16 P to C-624/16 P, EU:C:2018:873.

(6)  See judgment of 15 September 2016, Pietro Ferracci v European Commission, T-219/13, EU:T:2016:485, paragraphs 107-112, and judgment of 15 September 2016, Scuola Elementare Maria Montessori Srl v European Commission, T-220/13, EU:T:2016:484, paragraphs 104-109.

(7)  Converted into Law No 248 of 2 December 2005.

(8)  Converted into Law No 248 of 4 August 2006.

(9)  See footnote 1.

(10)  Article 7(1) of Legislative Decree No 504 of 30 December 1992 covered, inter alia, immovable property held by local or regional public authorities and used exclusively for institutional, buildings with specific destinations (e.g. stations, bridges, cemeteries); cultural property (e.g. museums, archives, old libraries) and buildings intended exclusively for worship activities.

(11)  The Italian authorities consider that the situation is similar to that referred to in judgment of 13 November 2008, Commission v France, C-214/07, EU:C:2008:619, paragraphs 13 and 22.

(12)  IMU declarations differ from ICI also in relation to other aspects. The IMU declarations allow to identify portions of real estate used for commercial and non-commercial activities.

(13)  The Italian authorities explain that Article 13(12ter) of Decree-Law No 201/2011 provides that taxable persons must submit the IMU declaration by 30 June of the year following the year in which they took possession of the property or changes relevant to determining the tax took place. The declaration is also valid for subsequent years, provided the information declared does not change.

(14)  Commission Decision of 14 August 2015 on the measures SA.33083 (2012/C) (ex 2012/NN) (implemented by Italy and relating to tax and contributions linked to natural disasters (all sectors not including agriculture)) and SA.35083 (2012/C) (ex 2012/NN) (implemented by Italy and related to the tax and contribution advantages linked to the 2009 earthquake in Abruzzo (all sectors not including agriculture)), recital (160).

(15)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9–29).

(16)  The Italian authorities explain that self-certification is a simplification tool governed by Presidential Decree No 445 of 28 December 2000. By means of self-certification, citizens declare, under their own responsibility, facts and qualities that can be documented and certified by public authorities, introducing a presumption. When the conditions imposed by the law are satisfied, a self-certification has the same validity of a certificate released by the relevant authority.

(17)  Judgment of 6 November 2018, Scuola Elementare Maria Montessori Srl v European Commission, European Commission v Scuola Elementare Maria Montessori Srl and European Commission v Pietro Ferracci, C-622/16 P to C-624/16 P, paragraph 76.

(18)  
            Ibid., paragraph 77.

(19)  
            Ibid., paragraphs 78 and 79.

(20)  
            Ibid., paragraph 82.

(21)  
            Ibid., paragraph 92.

(22)  
            Ibid., paragraph 92.

(23)  Judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and others v European Commission and others, C-71/09 P, C-73/09 P and C-76/09 P, C-71/09 P, EU:C:2011:368, paragraph 63.

(24)  See to that effect ibid. paragraph 115.

(25)  Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (OJ L 10, 13.1.2001, p. 30). Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ L 379, 28.12.2006, p. 5). Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest (OJ L 313 10.12.2018, p. 2).

(26)  Commission Decision C(2015) 5549 final of 14.8.2015 on the measures SA.33083 (2012/C) (ex 2012/NN) (implemented by Italy and relating to tax and contributions linked to natural disasters (all sectors not including agriculture)) and SA.35083 (2012/C) (ex 2012/NN) (implemented by Italy and related to the tax and contribution advantages linked to the 2009 earthquake in Abruzzo (all sectors not including agriculture)), recital (160).

(27)  See recital 148-150 of Decision C(2015) 5549 final.

(28)  See to that effect ruling of 27 June 2017, Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe, C-74/16, EU:C:2017:496, paragraph 41.

(29)  See for example the judgment of 11 December 2014, Austria v Commission, T-251/11, EU:T:2014:1060, paragraph 124, the judgment of 3 March 2016, Spain v Commission, C-26/15 P, EU:C:2016:132, paragraph 63 and judgment of 13 December 1984, Sermide SpA v Cassa Conguaglio Zucchero, C-106/83, EU:C:1984:394, paragraph 28.

(30)  Judgment of 6 November 2018, Scuola Elementare Maria Montessori Srl v European Commission, European Commission v Scuola Elementare Maria Montessori Srl and European Commission v Pietro Ferracci, C-622/16 P to C-624/16 P, EU:C:2018:873, paragraph 92.

(31)  Judgment of 29 April 2004, Italy v Belgium, C-372/97, EU:C:2004:234, paragraph 103.

(32)  
            Ibid., paragraph 105.

(33)  See to that effect, judgment of 12 February 2008, CELF et Ministre de la Culture et de la Communication, C-199/06, EU:C:2008:79, paragraph 68.

(34)  Judgment of 21 March 1990, Belgium v Commission, C-142/87, EU:C:1990:125, paragraph 66.

(35)  Judgment of 17 June 1999, Belgium v Commission, C-75/97, EU:C:1999:311, paragraphs 64 and 65.

(36)  Judgment of 7 March 2002, Italy v Commission, C-310/99, EU:C:2002:143, paragraph 91; judgment of 13 February 2014, Mediaset, C-69/13, EU:C:2014:71, paragraph 22.

(37)  Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (OJ L 248, 24.9.2015, p. 1–8).

(38)  Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid (OJ L 142, 14.5.1998, p. 1–4).


ELI: http://data.europa.eu/eli/dec/2023/2103/oj
ISSN 1977-0677 (electronic edition)