Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v Paint Graphos Soc. coop. arl (C-78/08), Adige Carni Soc. coop. arl, in liquidation v Agenzia delle Entrate and Ministero dell’Economia e delle Finanze (C-79/08) and Ministero delle Finanze v Michele Franchetto (C-80/08).
Date: 2011-09-08
30. First, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see, inter alia, Joined Cases C‑395/08 and C‑396/08 Bruno and Others  [2010] ECR I‑0000, paragraph 18 and the case-law cited).
31. According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Unon law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22; Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli  [2010] ECR I‑0000, paragraph 27; and Bruno and Others , paragraph 19).
32. It is therefore only in exceptional circumstances that the Court is required to examine the conditions in which the case was referred to it by the national court (see, to that effect, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39). The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (Case C‑112/00 Schmidberger  [2003] ECR I‑5659, paragraph 32 and the case‑law cited).
34. It is settled case‑law that, although the Court may not, in proceedings under Article 267 TFEU, rule upon the compatibility of a provision of domestic law with European Union law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of European Union law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C-292/92 Hünermund and Others [1993] ECR‑I-6787, paragraph 8, and Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani  [2001] ECR I‑9233, paragraph 27).
35. In particular, it has already been held that the Commission’s powers for the purpose of determining whether aid is compatible with the common market do not preclude a national court from referring to the Court of Justice a question on the interpretation of the concept of aid (Case C‑256/97 DM Transport  [1999] ECR I‑3913, paragraph 15). Accordingly, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation of European Union law to enable it to determine whether a national measure may be classified as State aid under that law (Case C‑140/09 Fallimento Traghetti del Mediterraneo  [2010] ECR I‑0000, paragraph 24 and the case‑law cited).
40. With regard to the fourth question referred by the Corte suprema di cassazione, concerning a possible abuse of rights on the part of the cooperatives at issue in the main proceedings, it should be noted that, according to the Court’s established case‑law, European Union law cannot be relied on for abusive or fraudulent ends (see, inter alia, Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 68, and Case C‑16/05 Tum and Dari  [2007] ECR I‑7415, paragraph 64).
45. According to settled case-law, the definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, inter alia, Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 38; Case C‑501/00 Spain  v Commission  [2004] ECR I‑6717, paragraph 90, and the case‑law there cited; and Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 131).
46. Consequently, a measure by which the public authorities grant certain undertakings a tax exemption which, although not involving the transfer of State resources, places the recipients of the exemption in a more favourable financial position than that of other taxpayers amounts to State aid within the meaning of Article 87(1) EC. Likewise, a measure allowing certain undertakings a tax reduction or to postpone payment of tax normally due can amount to State aid ( Cassa di Risparmio di Firenze and Others , paragraph 132).
49. In order to classify a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ regime applicable in the Member State concerned. It is in relation to this common or ‘normal’ tax regime that it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in light of the objective assigned to the tax system of the Member State concerned, are in a comparable factual and legal situation (see, to that effect, Case C‑88/03 Portugal  v Commission  [2006] ECR I‑7115, paragraph 56).
52. It follows from Article 11 of DPR No 601/1973 that a benefit such as that at issue in the main proceedings is not available to all economic operators but is granted on the basis of the undertaking’s legal form, namely whether or not it is a cooperative society (see, to that effect, Cassa di Risparmio di Firenze and Others , paragraph 136).
53. It sho uld also be noted that aid may be selective in the light of Article 87(1) EC even where it concerns a whole economic sector (see, inter alia, Case C-75/97 Belgium  v Commissio n [1999] ECR I-3671, paragraph 33).
55. Cooperative societies, the form taken by the legal entities at issue in the main proceedings, conform to particular operating principles which clearly distinguish them from other economic operators. Both the European Union legislature, in adopting Regulation No 1435/2003, and the Commission, in its Communication on the promotion of cooperative societies in Europe, have highlighted those particular characteristics.
64. If the national court concludes that, in the disputes before it, the condition set out in the preceding paragraph is in fact met, it will still be necessary to determine, in accordance with the Court’s case‑law, whether tax exemptions such as those at issue in the main proceedings are justified by the nature or general scheme of the system of which they form part (see, to that effect, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraph 42).
65. Thus, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system (see Portugal v Commission , paragraph 81).
66. In that context, it is appropriate to provide the referring court with the following guidance with a view to enabling it to give an effective ruling in the disputes before it.
67.  First, the Court has held on numerous occasions that the objective pursued by State measures is not sufficient to exclude those measures outright from classification as ‘aid’ for the purposes of Article 87 EC (see, inter alia, Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑10505, paragraph 84 and the case‑law cited).
68. Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects ( British Aggregates v Commission , paragraph 85 and the case‑law cited).
69. It should also be recalled that a measure which creates an exception to the application of the general tax system may be justified if it results directly from the basic or guiding principles of that tax system. In that context, a distinction must be made between, on the one hand, the objectives attributed to a particular tax regime and which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives (see, to that effect, Portugal v Commission , paragraph 81).
70. Consequently, tax exemptions which are the result of an objective that is unrelated to the tax system of which they form part cannot circumvent the requirements under Article 87(1) EC.
71. Next, as is apparent from paragraph 25 of the notice on direct business taxation, the Commission takes the view that the nature or general scheme of the national tax system may properly be relied on as justification for the fact that cooperative societies which distribute all their profits to their members are not taxed themselves as cooperatives, provided that tax is levied on the individual members.
72. Finally, as submitted in its written observations, the Commission also takes the view that the nature or general scheme of the tax system in question can provide no valid justification for a national measure if it provides that profits from trade with third parties who are not members of the cooperative are exempt from tax or that sums paid to such parties by way of remuneration may be deducted.
73. Moreover, it is necessary to ensure compliance with the requirement that a benefit must be consistent not only with the inherent characteristics of the tax system in question but also as regards the manner in which that system is implemented.
74. It is therefore for the Member State concerned to introduce and apply appropriate control and monitoring procedures in order to ensure that specific tax measures introduced for the benefit of cooperative societies are consistent with the logic and general scheme of the tax system and to prevent economic entities from choosing that particular legal form for the sole purpose of taking advantage of the tax benefits provided for that kind of undertaking. It is for the referring court to determine whether that requirement is met in the main proceedings.
75. In any event, in order for tax exemptions such as those at issue in the main proceedings to be justified by the nature or general scheme of the tax system of the Member State concerned, it is also necessary to ensure that those exemptions are consistent with the principle of proportionality and do not go beyond what is necessary, in that the legitimate objective being pursued could not be attained by less far‑reaching measures.
76. It is in the light of all the guidance on interpretation of European Union law provided by the Court at paragraphs 64 to 75 above that the referring court must determine whether the tax benefits provided for the producers’ and workers’ cooperatives at issue in the main proceedings are justified in the light of the nature and general scheme of the tax system concerned.
The conditions relating to the effect on trade between Member States and the distortion of competition
78. For the purpose of categorising a national measure as State aid, it is necessary, not to establish that the aid in question has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (Case C‑372/97 Italy  v Commission [2004] ECR I‑3679, paragraph 44; Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 54; and Cassa di Risparmio di Firenze and Others , paragraph 140).
79. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra‑Community trade, the latter must be regarded as affected by that aid (see, inter alia, Unicredito Italiano , paragraph 56 and the case-law cited, and Cassa di Risparmio di Firenze and Others , paragraph 141).
80. It is not necessary that the beneficiary undertaking itself be involved in intra‑Community trade. Where a Member State grants aid to an undertaking, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced. Furthermore, the strengthening of an undertaking which, until then, was not involved in intra-Community trade may place that undertaking in a position which enables it to penetrate the market of another Member State ( Unicredito Italiano , paragraph 58, and Cassa di Risparmio di Firenze and Others , paragraph 143).