Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA, Fondazione Cassa di Risparmio di San Miniato and Cassa di Risparmio di San Miniato SpA.
Date: 2006-01-10
63. According to settled case-law, the Court has no power, within the framework of Article 234 EC, to give preliminary rulings on the interpretation of rules pertaining to national law (Case 75/63 Hoekstra  ( née Unger)  [1964] ECR 177, 186 and Case C-341/94 Allain  [1996] ECR I-4631, paragraph 11). The jurisdiction of the Court is confined to considering provisions of Community law only (Case C‑307/95 Max Mara [1995] ECR I-5083, paragraph 5). It is for the national court to assess the scope of the national provisions and the manner in which they must be applied (Case C-45/94 Cámara de Comercio , Industria y Navegación de Ceuta  [1995] ECR I-4385, paragraph 26).
75. Nevertheless, it must be recalled that, according to settled case-law, the Court may decide not to give a preliminary ruling determining the validity of a Community act where it is quite obvious that that determination, requested by the national court, bears no relation to the actual facts of the main action or its purpose (Case C-451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 16).
99. As regards the fifth question, it is appropriate to recall that the general prohibition of all discrimination on grounds of nationality laid down by Article 12 EC applies independently only to situations governed by Community law for which the Treaty lays do wn no specific rules of non‑discrimination (see, in particular, Joined Cases C-397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 38). However, in relation to the right of establishment and the free movement of capital, the principle of non-discrimination was implemented by Articles 43 EC and 56 EC respectively. The fifth question must therefore be read as referring only to the latter provisions.
107. According to settled case-law, in the field of competition law, the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser  [1991] ECR I-1979, paragraph 21, and Joined Cases C-264/01, C-306/01, C-354/01 and C‑355/01 AOK Bundesverband and Others  [2004] ECR I-2493, paragraph 46).
108. Any activity consisting in offering goods or services on a given market is an economic activity (see, in particular, Case C-35/96 Commission  v Italy  [1998] ECR I-3851, paragraph 36, and Joined Cases C-180/98 to C-184/98 Pavlov and Others  [2000] ECR I‑6451, paragraph 75).
112. On the other hand, an entity which, owning controlling shareholdings in a company, actually exercises that control by involving itself directly or indirectly in the management thereof must be regarded as taking part in the economic activity carried on by the controlled undertaking.
114. If that is not the case, the simple separation of an undertaking into two different entities, the first of which pursues directly the former economic activity and the second of which controls the first, being fully involved in its management, would be sufficient to deprive the Community rules relating to State aid of their practical effect. It would enable the second entity to benefit from subsidies or other advantages granted by the State or by means of State resources and to use them in whole or in part for the benefit of the former, in the interest, also, of the economic unit formed by the two entities.
116. In the context of that regime:
– a banking foundation controlling the capital of a banking company, while it cannot engage directly in the banking activity, must ensure the ‘operational continuity’ between itself and the controlled bank;
– to that end, provisions must require that the members of the management committee or the banking foundation’s equivalent body are appointed to the board of directors and members of the controlling body to the supervisory committee of the banking company;
– the banking foundation must transfer a defined proportion of the income from the shareholdings in the banking company to a special reserve to be used for subscribing to increases in capital of that banking company;
– it may invest the reserve, in particular, in securities of the controlled banking company.
117. Such rules reveal a function of banking foundations going beyond the simple placing of capital by an investor. They make possible the exercise of functions relating to control, but also to direction and financial support. They illustrate the existence of organic and functional links between the banking foundations and the banking companies, which is confirmed by the maintenance, particularly under a provision like Article 14 of Decree No 356/90, of supervision by the Minister for the Treasury.
118. To see whether the banking foundation which is a defendant in the main proceedings is to be classed as an ‘undertaking’, it is for the national court to determine whether it not only held controlling shareholdings in a banking company, but, in addition, actually exercised that control by involving itself directly or indirectly in the management of the latter.
122. On the other hand, where a banking foundation, acting itself in the fields of public interest and social assistance, uses the authorisation given it by the national legislature to effect the financial, commercial, real estate and asset operations necessary or opportune in order to achieve the aims prescribed for it, it is capable of offering goods or services on the market in competition with other operators, for example in fields like scientific research, education, art or health.
123. On that hypothesis, which is subject to the national court’s assessment, the banking foundation must be regarded as an undertaking, in that it engages in an economic activity, notwithstanding the fact that the offer of goods or services is made without profit motive, since that offer will be in competition with that of profit-making operators.
131. 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, in particular, 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-66/02 Italy  v Commission  [2005] ECR I‑0000, paragraph 77).
132. 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 in a more favourable financial position than 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 ( Italy  v Commission , paragraph 78).
135. A measure such as that in question in the main proceedings does not apply to all economic operators. It cannot therefore be considered to be a general measure of tax or economic policy ( Italy  v Commission , paragraph 99, and Case C-148/04 Unicredito Italiano  [2005] ECR I‑0000, paragraph 49).
136. As the Commission correctly maintains, the tax advantage concerned is accorded on account of the undertaking’s legal form, a legal person governed by public law or a foundation, and of the sectors in which that undertaking carries on its activities.
140. For the purpose of categorising a national measure as State aid, it is necessary, not to establish that the aid 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; Italy  v Commission , cited in paragraph 131 above, paragraph 111, and Unicredito Ital iano , paragraph 54).
141. 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 ( Italy  v Commission , cited in paragraph 131 above, paragraph 115, and Unicredito Italiano , paragraph 56, and the case-law there cited).
142. In that regard, the fact that an economic sector has been liberalised at Community level may serve to determine that the aid has a real or potential effect on competition and affects trade between Member States (see Case C‑409/00 Spain  v Commission  [2003] ECR I‑1487, paragraph 75; Italy  v Commission , cited in paragraph 131 above, paragraph 116, and Unicredito Italiano , paragraph 57) .
143. In addition, it not necessary that the beneficiary undertaking itself be involved in intra-Community trade. Aid granted by a Member State to an undertaking may help to maintain or increase domestic activity, with the result that undertakings established in other Member States have less chance of penetrating the market of the Member State concerned. 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 ( Italy  v Commission , cited in paragraph 131 above, paragraph 117, and Unicredito Italiano , paragraph 58).
145. Without prejudice to that determination, it may be observed that:
– the financial services sector has been involved in an important liberalisation process at Community level, enhancing the competition that may already have resulted from the free movement of capital provided for in the Treaty ( Italy  v Commission , cited in paragraph 131 above, paragraph 119, and Unicredito Italiano , paragraph 60);
– a tax advantage such as that in question in the main proceedings can strengthen, in terms of financing and/or funding, the position of the economic unit, active in the banking sector, formed by the banking foundation and the banking company;
– it can also strengthen the banking foundation’s position in an activity carried on, in particular, in the social, scientific or cultural field.