Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v 3M Italia SpA.
Date: 2012-03-29
19. It must be recalled that a reference for a preliminary ruling made by a national court may be declared inadmissible only where it is quite obvious that the interpretation of European Union 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 (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61, and Case C‑450/09 Schröder  [2011] ECR I‑0000, paragraph 17).
20. With regard more specifically to the information that must be provided to the Court in a reference for a preliminary ruling, that information not only serves to enable the Court to provide answers which will be of use to the referring court, it must also enable the Governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is settled case-law that, for those purposes, it is necessary, first, that the national court should define the factual and legislative context of the questions which it is asking or, at the very least, explain the factual circumstances on which those questions are based. Secondly, the order for reference must set out the precise reasons why the national court is unsure as to the interpretation of European Union law and considers it necessary to refer questions to the Court for a preliminary ruling (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 40 and the case-law cited).
25. It should be recalled that, in accordance with settled case-law, while direct taxation falls within the competence of the Member States, they must none the less exercise that competence consistently with European Union law (see, inter alia, Case C‑182/08 Glaxo Wellcome  [2009] ECR I‑8591, paragraph 34 and the case-law cited).
33. It follows that the principle of the prohibition of abuse of rights and Article 4(3) TEU, under which the Member States are required to take any appropriate measure, general or particular, to ensure fulfilment of the obligations resulting from European Union law and to refrain from any measure which could jeopardise the attainment of the Union’s objectives, cannot in principle preclude the application, in a case such as that in the main proceedings, of a provision of national law such as Article 3(2 bis )(b) of Decree-Law No 40/2010.
35. Since those freedoms are the specific expression, in their respective fields, of the general principle of the prohibition of all discrimination on grounds of nationality (see, to that effect, Case C‑384/08 Attanasio Group  [2010] ECR I‑2055, paragraph 31), that principle does not preclude either the application, in a case relating to direct taxation, of a provision of national law such as Article 3(2 bis )(b) of Decree-Law No 40/2010.
36. Thirdly, as regards the rules on State aid, the Court has held on numerous occasions that the objective pursued by State measures is not sufficient to exclude those measures from classification as ‘aid’ for the purposes of Article 107 TFEU. That article does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (see Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑10515, paragraphs 84 and 85 and the case-law cited).
37. It is settled case-law that classification as State aid requires all the following conditions to be fulfilled. First, there must be intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between Member States. Thirdly, it must confer an advantage on the recipient. Fourthly, it must distort or threaten to distort competition (Case C‑140/09 Fallimento Traghetti del Mediterraneo  [2010] ECR I‑5243, paragraph 31 and the case-law cited).
38. With respect to the third condition, it should be recalled that a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places those to whom it applies in a more favourable financial position than other taxpayers constitutes State aid within the meaning of Article 107(1) TFEU (see Case C‑66/02 Italy  v Commission  [2005] ECR I‑10901, paragraph 78).
39. On the other hand, advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of that article (see Italy  v Commission , paragraph 99).
40. To assess whether a measure is selective, it must be examined whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation. However, the concept of State aid does not refer to measures which differentiate between undertakings and are therefore a priori selective where that differentiation arises from the nature or scheme of the system of which they form part (see British Aggregates  v Commission , paragraphs 82 and 83 and the case-law cited).
42. The fact that only taxpayers satisfying those conditions can benefit from the measure cannot in itself make it into a selective measure. It is clear that persons unable to claim its benefit are not in a comparable factual and legal situation to those taxpayers from the point of view of the national legislature’s objective of ensuring compliance with the principle that judgment must be given within a reasonable time.