Servizi Ausiliari Dottori Commercialisti Srl v Giuseppe Calafiori.
Date: 2006-03-30
23. It must also be made clear that the mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (Case C-475/99 Ambulanz Glöckner  [2001] ECR I-8089, paragraph 39).
24. Consequently, the question arises not only as to whether the national legislation has had the effect of granting CAF special or exclusive rights within the meaning of Article 86(1) EC, but also as to whether such legislation can have led to abuse of a dominant position.
29. In that regard, it should be pointed out that a reply might none the less be useful to the national court in particular if its national law were to require, in proceedings such as those in this case, that an Italian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation (see order in Case C-250/03 Mauri  [2005] ECR I-1267, paragraph 21).
31. At the outset, it must be borne in mind that Articles 43 EC and 49 EC require the elimination of restrictions on the freedom of establishment and the freedom to provide services and that all measures which prohibit, impede or render less attractive the exercise of such freedoms must be regarded as constituting such restrictions (see, in particular, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 22).
33. So far as the freedom to provide services is concerned, such national legislation, by reserving those activities to the CAF, completely prevents access to the market for the services in question by economic operators established in other Member States.
34. As regards the freedom of establishment, such legislation, by restricting the ability to form CAF to certain legal entities meeting strict conditions and, as follows from the information provided, to some of those entities with their registered office in Italy, is liable to make more difficult, or even completely prevent, the exercise by economic operators from other Member States of their right to establish themselves in Italy with the aim of providing the services in question.
36. The provisions of the national legislation which restrict the ability to form CAF to certain legal entities already established in Italy are discriminatory. Such provisions can be justified only on the grounds of public interest, public safety or public health, under Articles 46 EC and 55 EC, which have not been invoked in this case (Case C-263/99 Commission v Italy  [2001] ECR I-4195, paragraph 15).
37. By contrast, the provisions of the national legislation at issue which apply to any person or undertaking carrying on an activity in the territory of the host Member State may be justified where they serve overriding requirements relating to the public interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see Case C-79/01 Payroll and Others  [2002] ECR I-8923, paragraph 28, and the case-law there cited).
38. In that regard, it must be observed that the public interest in the protection of recipients of the services in question against harm which they could suffer as a result of services provided by persons without the necessary professional or personal qualifications can justify a restriction on the freedom of establishment and on the freedom to provide services (see, to that effect, Case C-76/90 Säger [1991] ECR I-4221, paragraphs 15 to 17).
45. In that regard, it must be remembered that, as derogations from the fundamental rule of freedom of establishment, Articles 45 EC and 55 EC must be interpreted in a manner which limits their scope to what is strictly necessary for safeguarding the interests which those provisions allow the Member States to protect (Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7, and Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 34).
46. Thus, according to settled case-law, derogation under those articles must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (Case 2/74 Reyners  [1974] ECR 631, paragraph 45; Case C-42/92 Thijssen [1993] ECR I-4047, paragraph 8; Commission  v Spain , paragraph 35; and Case C-283/99 Commission  v Italy  [2001] ECR I-4363, paragraph 20).
47. It must be held that checking that the information given in the tax declaration is consistent with the documents annexed to it, even though it is in fact rarely questioned by the tax authorities, is not directly and specifically connected with the exercise of official authority but a measure intended to prepare for or facilitate the accomplishment of the tasks for which the tax authorities are responsible.
54. It must therefore be stated that, by its third question, the referring court is asking, in essence, whether remuneration such as that received by CAF for the completion and filing of a tax declaration in accordance with Articles 34(4) and 38(1) of Legislative Decree No 241/97 constitutes State aid within the meaning of Article 87(1) EC.
55. At the outset, it must be recalled that, according to settled case-law, classification as ‘State aid’ requires that all the conditions set out in that provision are fulfilled (see Case C-142/87 Belgium v Commission (‘Tubemeuse’)  [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain v Commission  [1994] ECR I-4103, paragraph 20; Case C-482/99 France v Commission  [2002] ECR I-4397, paragraph 68; and Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I-7747, paragraph 74).
56. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.
59. As regards the third and fourth conditions, it must be observed that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or must be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 84).
60. On the other hand, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than their competitors, such a measure is not caught by Article 87(1) EC ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 87).
61. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88).
62. First, the undertaking receiving such compensation must actually have public service obligations to discharge, and the obligations must be clearly defined ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 89).
64. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 90).
66. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92).
67. Fourth, it should be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 93).
69. In that regard, it must be recalled that the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 453, 459; Case 51/74 Van der Hulst  [1975] ECR 79, paragraph 12; Case C-320/88 Shipping and Forwarding Enterprise Safe  [1990] ECR I-285, paragraph 11; Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro  [1999] ECR I-6881, paragraph 38; and Case C-282/00 RAR  [2003] ECR I-4741, paragraph 47).
71. In that context, it must also be made clear that the national court has no jurisdiction to determine the compatibility of State aid measures or of a State aid scheme with the common market. That assessment falls within the exclusive competence of the Commission of the European Communities, subject to review by the Community judicature (see Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon  [1991] ECR I-5505, paragraph 14; Case C-39/94 SFEI and Others  [1996] ECR I-3547, paragraph 42; and Case C-295/97 Piaggio  [1999] ECR I-3735, paragraph 31).
72. Having regard to the foregoing, the reply to the third question must be that a measure by which a Member State provides for the payment of compensation from State funds to certain undertakings responsible for helping taxpayers in connection with the completion of tax declarations and filing them with the tax authorities must be classified as State aid within the meaning of Article 87(1) EC, where:
– the level of the compensation exceeds what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations, and
– the compensation is not determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.
Costs