Presidente del Consiglio dei Ministri v Regione Sardegna.
Date: 2009-11-17
23. In that regard, it should be borne in mind that, according to the case-law of the Court, the concept of ‘services’ within the meaning of Article 50 EC implies that they are ordinarily provided for remuneration and that the remuneration constitutes consideration for the service in question and is agreed upon between the provider and the recipient of the service (see Case 263/86 Humbel and Edel  [1988] ECR 5365, paragraph 17; Case C-109/92 Wirth  [1993] ECR I‑6447, paragraph 15; and Case C-355/00 Freskot [2003] ECR I‑5263, paragraphs 54 and 55).
25. It follows from well-established case-law that, whilst the third paragraph of Article 50 EC refers only to the active provision of services – where the provider moves to the beneficiary of the services – that also includes the freedom of the persons for whom the services are intended, including tourists, to go to another Member State, where the provider is, in order to enjoy the services there (see, inter alia, Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraphs 10 and 16; Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I‑6849, paragraph 36; and Case C-318/05 Commission  v Germany  [2007] ECR. I‑6957, paragraph 65).
29. With regard to the question whether the legislation at issue in the main proceedings constitutes a restriction on the freedom to provide services, it should be borne in mind at the outset that, in the field of freedom to provide services, a national tax measure restricting that freedom may constitute a prohibited measure, whether it was adopted by the State itself or by a local authority (see, inter alia, Joined Cases C‑544/03 and C-545/03 Mobistar and Belgacom Mobile  [2005] ECR I-7723, paragraph 28 and the case-law cited).
30. In the present case, it is common ground that the regional tax on stopovers is imposed on operators of aircraft or recreational craft having their tax domicile outside the territory of the region and that the chargeable event for tax purposes is the stopover of the aircraft or recreational craft in that territory. Even though, admittedly, that tax is applicable only in a particular part of a Member State, it applies to stopovers by the aircraft and recreational craft in question irrespective of whether they come from another region of Italy or from another Member State. In those circumstances, the regional character of the tax does not mean by definition that it cannot impinge on the freedom to provide services (see, by analogy, Case C-72/03 Carbonati Apuani  [2004] ECR I-8027, paragraph 26).
32. Such legislation introduces an additional cost for stopovers made by aircraft or boats operated by persons having their tax domicile outside the territory of the region and established in other Member States, and thus creates an advantage for some categories of undertaking established in that territory (see Case C-353/89 Commission  v Netherlands  [1991] ECR I‑4069, paragraph 25; Case C-250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraph 37; and Case C-212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 50).
34. In that regard, the Court has indeed accepted, in relation to direct taxation, that the situation of residents and the situation of non-residents in a given Member State are not generally comparable, since there are objective differences between them, both from the point of view of the source of the income and from the point of view of their ability to pay tax or the possibility of account being taken of their personal and family circumstances (see, inter alia, Schumacker , paragraphs 31 to 33, and Case C-527/06 Renneberg [2008] ECR I‑7735, paragraph 59).
35. However, in order for the comparison of the situation of the taxpayers to be carried out, the specific characteristics of the relevant tax must be taken into account. Accordingly, a difference in treatment as between residents and non-residents may constitute a restriction on the freedom to provide services prohibited by Article 49 EC where there is no objective difference in the situation, with regard to the tax levy in question, which would justify different treatment between the various categories of taxpayer (see, to that effect, Renneberg , paragraph 60).
42. In that regard, it should be borne in mind that, according to settled case-law, irrespective of the existence of a legitimate objective which serves overriding reasons relating to the public interest, a restriction on the fundamental freedoms guaranteed by the EC Treaty may be justified only if the relevant measure is appropriate to ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective (see Case C-150/04 Commission  v Denmark  [2007] ECR I–1163, paragraph 46; Government of the French Community and Walloon Government,  paragraph 55; and Case C-222/07 UTECA [2009] ECR I-0000, paragraph 25). Furthermore, national legislation is appropriate to ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (Case C‑169/07 Hartlauer [2009] ECR I-0000, paragraph 55).
47. In that regard, it should be borne in mind that the Court has acknowledged that the need to preserve the cohesion of a tax system may justify a restriction on the fundamental freedoms guaranteed by the Treaty, but has pointed out that such a justification requires a direct link between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see, inter alia, Case C-303/07 Aberdeen Property Fininvest Alpha  [2009] ECR I-0000, paragraphs 71 and 72).
52. It should be recalled at the outset that, according to the case-law of the Court, for a measure to be categorised as State aid within the meaning of the Treaty, each of the four cumulative conditions laid down in Article 87(1) EC must be fulfilled. First, there must be an 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 (see, in particular, Case C-237/04 Enirisorse  [2006] ECR I‑2843, paragraphs 38 and 39 and the case-law cited).
56. In that regard, it should be noted that, according to settled case-law of the Court, the notion of aid can encompass not only positive benefits such as subsidies, loans or direct investment in the capital of enterprises, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect (see Case C-156/98 Germany  v Commission  [2000] ECR I‑6857, paragraph 25, and Joined Cases C‑341/06 P and C-342/06 P Chronopost and La Poste  v UFEX and Others  [2008] ECR I‑4777, paragraph 123 and the case-law cited).
57. As stated by the Commission, tax legislation such as that at issue in the main proceedings, which grants certain undertakings exclusion from the obligation to pay the tax in question, constitutes State aid, even if it does not involve the transfer of State resources, since it involves the renunciation by the authorities concerned of tax revenue which they would normally have received ( Germany  v Commission , paragraphs 26 to 28).
60. In that regard, it does indeed follow from the case-law relied upon by the defendant in the main proceedings that, with regard to a measure adopted not by the national legislature, but by an infra-State body, such a measure is not selective for the purposes of Article 87(1) EC solely on the ground that it confers an advantage only in the part of the national territory in which the measure applies (see Portugal  v Commission , paragraphs 53 and 57, and Joined Cases C‑428/06 to C‑434/06 UGT-Rioja and Others  [2008] ECR I‑6747, paragraphs 47 and 48).
61. However, it also follows from that case-law that, in order to determine whether a measure is selective, where it is adopted by an infra-State body which enjoys autonomy vis-à-vis the central government of the kind enjoyed by the Region of Sardinia, it is necessary to determine whether, with regard to the objective pursued by that measure, it constitutes an advantage for certain undertakings as compared with others which, within the legal framework in which that body exercises its competences, are in a comparable legal and factual situation (see Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I‑8365, paragraph 41, and Portugal  v Commission , paragraphs 56 and 58).