Provisional text
JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
20 December 2023 (*)
(State aid – Taxation of port authorities in Italy – Exemption from corporate income tax – Decision declaring aid incompatible with the internal market – Existing aid – Concept of ‘undertaking’ – Concept of ‘economic activity’ – Advantage – Selectivity – Distortion of competition – Effect on trade between Member States – Equal treatment)
In Case T‑166/21,
Autorità di sistema portuale del Mar Ligure occidentale, established in Genoa (Italy), and the other applicants whose names are set out in the annex, (1) represented by F. Munari, I. Perego, G.M. Roberti and S. Zunarelli, lawyers,
applicants,
supported by
Associazione Porti Italiani (Assoporti), established in Rome (Italy), represented by F. Munari, I. Perego, G.M. Roberti and S. Zunarelli, lawyers,
intervener,
v
European Commission, represented by B. Stromsky and F. Tomat, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of S. Papasavvas, President, O. Porchia, L. Madise, P. Nihoul and S. Verschuur (Rapporteur), Judges,
Registrar: P. Nuñez Ruiz, Administrator
having regard to the written part of the procedure,
further to the hearing on 19 April 2023,
gives the following
Judgment
1 By their action based on Article 263 TFEU, the applicants, Autorità di sistema portuale del Mar Ligure occidentale (Port System Authority of the Western Ligurian Sea, Italy) and the other applicants whose names are set out in the annex, seek the annulment of Commission Decision (EU) 2021/1757 of 4 December 2020 on the aid scheme SA.38399 – 2019/C (ex 2018/E) which Italy implemented – Corporate Taxation of Ports in Italy (OJ 2021 L 354, p. 1; ‘the contested decision’).
Legal framework
Italian legislation on the administration of Italian ports
2 Article 28 of the codice della navigazione (Navigation Code) provides that the shore, beach, harbours and roadsteads belonging to the State under Article 822 of the codice civile (Civil Code) constitute State-owned maritime property.
3 Legge No 84 – Riordino della legislazione in materia portuale (Law No 84 reforming port legislation) of 28 January 1994 (Ordinary Supplement to GURI No 28 of 4 February 1994; ‘Law No 84/94’) governs port activities and regulates the tasks and functions of the autorità di sistema portuale (Port System Authorities; ‘PSA’).
4 PSA are non-economic public entities with legal personality which administer one or more ports of national or international importance in Italy. Law No 84/94 establishes 16 PSA covering the 57 main ports of Italy (including Trieste, Genoa, Livorno, Cagliari and Gioia Tauro).
5 Article 6(4)(a) of Law No 84/94 provides that PSA are responsible for the exclusive administration of maritime areas and property within their district.
6 Under Article 6(5) of Law No 84/94, PSA are subject to special regulations and have administrative, organisational, regulatory, budgetary and financial autonomy. Paragraphs 7, 8 and 9 of that article provide, respectively, that PSA are subject to the guidance and supervisory powers of the Italian Minister for Infrastructure and Transport, that their accounting and financial management is governed by a decree approved by that minister in agreement with the Italian Minister for Economic Affairs and Finance, and that their financial management is subject to audit by the Corte dei conti (Court of Auditors, Italy).
7 Under Article 6(4) of Law No 84/94, PSA carry out a number of tasks, including the management, programming, coordination, regulation and control of port operations, such as the loading, unloading, transhipping, storage and general movement of goods and all other items carried out in the port area (‘port operations’).
8 Article 6(11) of Law No 84/94 provides that PSA cannot carry out port operations and closely related activities, either directly or through companies with which they are involved.
9 According to Article 16(2) of Law No 84/94, PSA regulate and supervise the carrying out of port operations by third parties, namely undertakings, and the application of the tariffs made public by each undertaking. In that connection, PSA regularly report to the Minister for Infrastructure and Transport.
10 Under Article 16(3) and (4) of Law No 84/94, PSA are responsible for issuing authorisations to carry out port operations in the ports managed by them. Those authorisations are granted to undertakings which fulfil the conditions laid down by decree of the Minister for Infrastructure and Transport. The undertakings authorised to carry out port operations are entered in registers kept by PSA and are subject to the payment of an annual fee and the provision of a security.
11 Moreover, under Article 36 of the Navigation Code, PSA may grant concessions to undertakings for the occupation and use of State-owned property for a specified period. Those concessions relate to State-owned areas and docks within the port area (for example the leasing to third-party undertakings of port land and infrastructures).
12 Article 37 of that code further provides that, in the event of multiple applications for a concession, preference is to be given to the applicant offering the best guarantee of profitable use of the concession and planning to put it to a use which serves the highest public interest.
13 PSA have various financial resources at their disposal, including:
– anchorage dues and dues on goods unloaded and loaded paid by vessels in return for the grant of access to ports (‘port fees’);
– income received in return for the grant of authorisations for port operations (‘authorisation fees’);
– fees charged in return for the grant of concessions for State-owned areas and docks (‘concession fees’).
14 To cover the costs of the works they carry out, PSA may, under Article 5(8) of Law No 84/94, increase concession fees or port fees by imposing surcharges on the goods loaded or unloaded.
15 In addition, Article 13(1)(d) and (e) of Law No 84/94 provides that PSA are to receive contributions from regions, local authorities and other public bodies, as well as other revenues.
Italian corporate income tax legislation
16 Title II of decreto del Presidente della Repubblica n. 917 – Approvazione del testo unico delle imposte sui redditi (Decree of the President of the Republic No 917 approving the consolidated law on income tax) of 22 December 1986 (Ordinary Supplement to GURI No 302 of 31 December 1986; ‘the TUIR’) contains the rules applicable to corporate income tax (‘IRES’).
17 Article 73(1) of the TUIR provides that the following are subject to IRES:
‘(a) joint-stock companies and limited partnerships, limited liability companies, cooperative companies and mutual insurance companies, as well as European companies … and European Cooperative Societies …, established in the territory of the State;
(b) public and private entities other than companies, …, established in the territory of the State, which have as their exclusive or principal object the exercise of commercial activities;
(c) public and private entities other than companies, … which do not have as their exclusive or principal object the exercise of commercial activities, established in the territory of the State;
(d) companies and institutions of any kind, … with or without legal personality, which are not established in the territory of the State.’
18 Article 74(1) of the TUIR exempts from IRES a large number of State entities and public bodies, such as State bodies and administrations, including those with an autonomous organisation, regions, provinces, municipalities, mountain communities and bodies managing ‘collective property’.
19 Article 74(2)(a) of the TUIR states that State activities do not constitute commercial activities.
20 The Italian authorities considered that PSA constituted bodies managing collective property, within the meaning of Article 74(1) of the TUIR, and concluded that they engaged exclusively in State, and therefore non-economic, activities. On that basis, they exempted PSA from IRES (‘the IRES exemption’).
Background to the dispute
Administrative procedure
21 By letter of 3 July 2013, the European Commission sent a comprehensive questionnaire to all Member States on the corporate taxation of ports as well as possible other forms of State support for different types of investment connected with ports or with the operation of ports.
22 The Italian Republic responded to that questionnaire by letters of 12 September and 1 October 2013. In 2014 and 2017, the Commission requested further information, which was sent by the Italian authorities.
23 By letter of 30 April 2018, the Commission, in accordance with Article 21 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), informed the Italian Republic that it considered the IRES exemption to be an existing aid scheme which was incompatible with the internal market and invited the Italian Republic to submit its comments.
24 Several meetings were subsequently held between the Commission and the Italian Republic and exchanges of questions and answers took place during 2018.
25 On 8 January 2019, the Commission proposed to the Italian Republic that it take appropriate measures under Article 22 of Regulation 2015/1589 to end the IRES exemption for the economic activities of PSA and, consequently, ensure that they would be subject to IRES in the same way as other undertakings. Moreover, the Commission invited the Italian authorities to inform it in writing, and within two months from the receipt of that proposal, of the acceptance of the proposed measures in accordance with Article 23(1) of Regulation 2015/1589.
26 On 7 March 2019, the Italian Republic rejected the Commission’s proposal.
27 Since the Italian authorities did not accept the appropriate measures proposed, the Commission decided, on 15 November 2019, to initiate the procedure provided for in Article 108(2) TFEU, pursuant to Article 23(2) of Regulation 2015/1589. In that context, the Commission invited the Italian Republic and the interested parties to submit their comments.
28 The Italian authorities sent their comments to the Commission by letter of 4 February 2020. Subsequently, the Commission also received comments from several interested parties.
29 The formal investigation procedure was closed with the adoption of the contested decision.
Contested decision
30 In the contested decision, first, the Commission finds that PSA engage in both economic and non-economic activities.
31 More specifically, the Commission regards three activities of PSA as being of an economic nature (recitals 85 to 129 of the contested decision):
– the grant, in return for remuneration, of access to ports (that is to say, anchorage dues and dues on goods unloaded and loaded; ‘the grant of access to ports’);
– the grant, in return for remuneration, of authorisations for the port operations referred to in Article 16 of Law No 84/94 (‘the grant of authorisations for port operations’);
– the grant, in return for remuneration, of concessions relating to the leasing of land and port infrastructures in State-owned areas and docks in port areas within the region (‘the grant of concessions for State-owned areas and docks’).
32 Secondly, the Commission argues that the IRES exemption gives rise to a loss of tax revenues equivalent to the consumption of State resources in the form of fiscal expenditures, which constitutes a transfer of State resources (recitals 130 to 134 of the contested decision).
33 Thirdly, the Commission argues that the IRES exemption constitutes an advantage vis-à-vis other undertakings not benefiting from such an exemption even though they pursue economic activities in Italy (recitals 135 to 138 of the contested decision).
34 Fourthly, the Commission considers that the IRES exemption is likely to strengthen the competitive position of PSA, since they may compete with one other and with other ports in Europe. Consequently, that exemption is capable of affecting trade between Member States and could distort competition (recitals 139 to 157 of the contested decision).
35 Fifthly, the Commission considers that the measure is selective. The IRES exemption derogates without valid justification from the principle of the Italian corporate tax system that IRES applies to all types of income generated by companies or by public or private entities other than companies which carry on economic activities. Consequently, PSA are favoured over other companies which carry on economic activities in Italy (recitals 158 to 174 of the contested decision).
36 For those reasons, the Commission concludes that the IRES exemption constitutes State aid within the meaning of Article 107(1) TFEU (recitals 175 and 176 of the contested decision).
37 Lastly, the Commission finds that the IRES exemption cannot be declared compatible with the internal market, whether on the basis of Article 93, Article 106(2) or Article 107(2) and (3) TFEU (recitals 177 to 194 of the contested decision).
38 Since the tax regime applicable to Italian port authorities prior to 1958, that is to say, before the entry into force of the FEU Treaty, was exactly the same as the IRES exemption, and those port authorities have never been subject either to IRES or to the corporate tax in force before IRES, the Commission concluded that it was an existing aid scheme for the purposes of Article 1(b) of Regulation 2015/1589 (recitals 195 to 198 of the contested decision). The Commission therefore ordered the abolition of the IRES exemption (Article 2 of the contested decision).
39 The operative part of the contested decision reads as follows:
‘Article 1
The [IRES] exemption in favour of [PSA] constitutes an existing aid scheme which is incompatible with the internal market.
Article 2
[The Italian Republic] shall remove the [IRES] exemption referred to in Article 1. The measure by which [the Italian Republic] fulfils its obligations shall be adopted within 2 months of the date of notification of this Decision. This measure shall apply as of the start of the fiscal year following its adoption and at the latest in 2022.
Article 3
[The Italian Republic] shall inform the Commission, within 2 months of the date of notification of this Decision, of the measures taken to comply with it.
Article 4
This decision is addressed to the Italian Republic.’
Forms of order sought
40 The applicants, supported by the Associazione Porti Italiani (Assoporti), intervener in the present case, claim that the Court should:
– annul Articles 1, 2, 3 and 4 of the contested decision;
– order the Commission to pay the costs.
41 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
42 In support of their action, the applicants, supported by the intervener, put forward four pleas in law.
43 First, the Commission is alleged to have infringed Articles 107 and 296 TFEU by classifying PSA as undertakings. Secondly, the Commission is alleged to have infringed Article 107 TFEU by considering that the IRES exemption gave rise to a transfer of State resources. Thirdly, the Commission is alleged to have infringed Article 107 TFEU by considering that the IRES exemption conferred a selective advantage on PSA. Fourthly, the Commission is alleged to have infringed Article 107 TFEU by considering that the IRES exemption could distort competition and affect trade between Member States.
The first plea in law, alleging infringement of Articles 107 and 296 TFEU as a result of the classification of PSA as undertakings
44 The first plea is divided into four parts.
45 In the first part, the applicants and the intervener submit that the Commission made an error of assessment with regard to the legal status of PSA in the Italian legal order. In the second part, they dispute the economic nature of the port activities of PSA and allege a breach of the principles of equal treatment, sound administration and legal certainty. In the third part, they challenge the Commission’s assessment of the nature of the port fees. In the fourth part, they rely, in turn, on infringement of several Treaty provisions and an alleged misuse of powers.
46 It is necessary to reject from the outset the argument raised on several occasions by the applicants in the first plea, alleging a failure to state reasons in the contested decision concerning the classification of PSA as undertakings.
47 In that regard, it should be noted that, in accordance with the case-law, a plea based on infringement of Article 296 TFEU is separate from one alleging that the contested decision is unfounded. While the former plea, which alleges absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of an essential procedural requirement within the meaning of Article 263 TFEU, and, involving a matter of public policy, must be raised by the EU judicature of its own motion, the latter plea, which goes to the substantive legality of a decision, is concerned with the infringement of a rule of law relating to the application of the Treaty, again within the meaning of Article 263 TFEU, and can be examined by the EU judicature only if it is raised by the applicant. The obligation to state reasons is thus a separate question from that of the merits of those reasons (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraph 52).
48 In the present case, as the Commission rightly points out, not only have the applicants and the intervener failed to identify the parts of the contested decision in respect of which they criticise the Commission for allegedly infringing Article 296 TFEU, but the fact remains that the contested decision is sufficiently reasoned. The Commission devoted recitals 85 to 129 of that decision to the classification of PSA as undertakings, with the result that the decision enabled, first, the applicants and the intervener to ascertain the reasons for the measure taken in that regard, as is clear from the examination of the various pleas which they raised, and, secondly, the Court to exercise its power of review.
49 Accordingly, the applicants’ argument alleging an infringement of Article 296 TFEU must be rejected.
50 As regards the other arguments raised by the applicants and the intervener in the first plea, it is appropriate, first of all, to examine the arguments raised in the fourth part of that plea.
The fourth part, alleging infringement of several Treaty provisions and a misuse of powers
51 The applicants, supported in that regard by the intervener, argue that the Commission infringed Article 345 TFEU by disregarding the fact that the EU and TFEU Treaties permitted Member States to retain their public property, including port infrastructures, and to reserve the regulation and administration thereof exclusively to infra-State entities, such as PSA. Sectors which have not been opened up to the market do not fall within the scope of the State aid rules.
52 Moreover, the applicants claim that the Commission infringed Article 3 TEU and Article 7 and Article 121(1) TFEU by restricting State prerogatives in matters of economic and industrial policy and by making Member States’ tax regimes subject to its prior authorisation.
53 Furthermore, the applicants submit that the Commission misused its powers by pursuing harmonisation through the application without distinction of State aid rules to Member States whose methods of managing port infrastructures have characteristics different from those of Italy. They claim that the contested decision also infringes the principles of proportionality, proximity, subsidiarity, separation of powers and democratic decision-making.
54 The Commission disputes those arguments.
55 In that regard, it should be noted that the applicants argue, in essence, that the Commission, in adopting the contested decision, is making the entire economic and industrial policy of the Member States subject to its prior authorisation, thereby infringing a number of rules and principles of EU law.
56 Contrary to what the applicants and the intervener claim, the contested decision leaves the Italian Republic entirely free to organise and regulate the Italian port sector as it considers appropriate, subject, inter alia, to compliance with EU law. The contested decision does not require the Italian Republic to liberalise or privatise its port sector and imposes no change in the legal status or ownership of PSA. The contested decision merely requires that the activities of PSA which are economic in nature be taxed in the same way as economic activities in other sectors. In that context, it should be noted that Article 345 TFEU does not exempt entities governed by public law from the State aid rules (see, to that effect, judgment of 19 December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph 67).
57 It follows that the Commission did not infringe Article 3 TEU, Article 7 and Article 121(1) TFEU or the principles of proportionality, proximity, subsidiarity, separation of powers and democratic decision-making.
58 Lastly, as regards the applicants’ argument based on an alleged misuse of powers, it is settled case-law that there is a misuse of powers where an act is adopted with the exclusive or main purpose of achieving an end other than that stated (see judgment of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 49 and the case-law cited). In the contested decision, the Commission merely applied the relevant State aid rules to the tax treatment of PSA in Italy, requiring that that treatment be modified, without using its powers to achieve other objectives.
59 In the light of the foregoing, the fourth part of the first plea must be rejected.
The first part, alleging an error in the assessment of the legal status of PSA
60 The applicants, supported in that regard by the intervener, submit that the Commission erred in its assessment in failing to take account of the fact that, under Italian law, PSA are regarded as infra-State entities, that is to say, non-economic public entities of national relevance which act on behalf of the State solely in the general interest.
61 PSA are equivalent to other local bodies entrusted with public service missions and were established to carry out tasks typical of a public authority, such as awarding State concessions and collecting taxes.
62 Accordingly, the Italian legislature chose to prohibit PSA from engaging in any economic activity. Because of the particular features of their status, PSA are non-profit-making.
63 Moreover, the State alone is responsible for their operation and economic viability. PSA are entities which cannot go bankrupt in so far as their indebtedness constitutes a debt of the State, which, under Italian law, cannot go bankrupt. Those specific features of PSA have been confirmed on several occasions by Italian case-law and administrative practice.
64 The Commission disputes those arguments.
65 In that regard, it should be recalled that the concept of an ‘undertaking’ encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (judgment of 23 April 1991, Höfner and Elser, C‑41/90, EU:C:1991:161, paragraphs 21 and 22; see, also, judgment of 3 March 2011, AG2R Prévoyance, C‑437/09, EU:C:2011:112, paragraph 41 and the case-law cited).
66 It is settled case-law that any activity consisting in offering goods and services on a given market is an economic activity (judgment of 16 June 1987, Commission v Italy, 118/85, EU:C:1987:283, paragraph 7; see, also, judgment of 11 June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa, C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraph 29 and the case-law cited).
67 By contrast, activities which are connected with the exercise of powers of a public authority are not of an economic nature, so that those activities do not fall within the scope of the State aid rules (see, to that effect, judgments of 19 January 1994, SAT Fluggesellschaft, C‑364/92, EU:C:1994:7, paragraph 30, and of 24 March 2022, GVN v Commission, C‑666/20 P, not published, EU:C:2022:225, paragraph 70).
68 The fact that, for the exercise of part of its activities, an entity is vested with official powers does not, in itself, prevent it from being characterised as an undertaking provided that it engages in other activities of an economic nature (see, to that effect, judgments of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraphs 74 and 75, and of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 37). In so far as a public entity carries on an economic activity which can be separated from the exercise of its public powers, that entity, in relation to that activity, acts as an undertaking (judgments of 7 November 2019, Aanbestedingskalender and Others v Commission, C‑687/17 P, not published, EU:C:2019:932, paragraph 18, and of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 82).
69 Accordingly, in State-aid matters, the legal status of an entity under national law is irrelevant for the purposes of its classification as an undertaking. Even a body which is integrated into the State administration and does not have legal personality separate therefrom may be characterised as an undertaking (see, to that effect, judgment of 16 June 1987, Commission v Italy, 118/85, EU:C:1987:283, paragraph 13). Moreover, the fact that an entity cannot go bankrupt on account, for example, of an unlimited State guarantee cannot invalidate its classification as an undertaking.
70 Similarly, the fact that the offer of goods and services is made on a not-for-profit basis does not prevent those operations on the market from being considered economic activities, since that offer exists in competition with that of other operators which do seek to make a profit (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 46 and the case-law cited).
71 Accordingly, the applicants and the intervener have failed to show that the Commission erred in its assessment of the legal status of PSA.
72 The first part of the first plea must therefore be rejected.
The second part, alleging an error of law in the assessment of the economic nature of the activities of PSA
73 In the second part of the first plea, which comprises two complaints, the applicants, supported in that regard by the intervener, argue that the Commission infringed Article 107(1) TFEU in considering that PSA carried out economic activities by engaging in the three activities referred to in paragraph 31 above, namely the grant of concessions for State-owned areas and docks, the grant of access to ports and the grant of authorisations for port operations.
– The first complaint, alleging a breach of the principle of equal treatment on the basis of the reference to earlier decisions concerning Belgian, French and Netherlands ports
74 The applicants, supported in that regard by the intervener, argue that the Commission infringed the principle of equal treatment, since it referred to earlier decisions concerning Belgian, French and Netherlands ports in support of its conclusion that PSA carried out certain economic activities.
75 The managing bodies of the ports in the Member States concerned by those decisions were joint-stock companies providing goods and services for remuneration. Moreover, in those cases the port operations and services (such as the loading, unloading, transhipping, storage and handling of goods) were provided directly by ports on the basis of market considerations. In disregarding those fundamental differences, the Commission infringed the principle of equal treatment.
76 The Commission disputes those arguments.
77 In that regard, it should be recalled that the principle of equal treatment, which is enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55).
78 In essence, the applicants and the intervener criticise the Commission for having treated the managing bodies of the Belgian, French and Netherlands ports, on the one hand, and PSA, on the other hand, in exactly the same way. The decisions concerned must therefore be examined in the light of the differences on which the applicants relied.
79 Contrary to what the applicants and the intervener suggest, the private-law nature of the managing bodies of the Belgian, French and Netherlands ports was of no relevance to the Commission’s assessment in relation to them. As stated in paragraph 65 above, the legal status of an entity is not relevant in classifying the activities carried out by that entity as being of an economic nature. That classification depends only on the nature of the activity concerned.
80 Moreover, the fact that, in the cases which led to the earlier decisions concerning Belgian and French ports, the managing bodies of those ports directly carried out certain port operations (such as the loading, unloading, transhipping, storage and handling of goods) is irrelevant, since the Commission did not state, in the contested decision, that those port operations are also carried out by PSA.
81 As regards, by contrast, the grant of access to ports and the grant of concessions for State-owned areas and docks, it should be noted that, in the earlier decisions concerning Belgian and French ports, namely in recital 67 of Commission Decision (EU) 2017/2115 of 27 July 2017 on aid scheme SA.38393 (2016/C, ex 2015/E) implemented by Belgium – Taxation of ports in Belgium (OJ 2017 L 332, p. 1) and in recital 61 of Commission Decision (EU) 2017/2116 of 27 July 2017 on aid scheme SA.38398 (2016/C, ex 2015/E) implemented by France – Taxation of ports in France (OJ 2017 L 332, p. 24), the Commission classified equivalent activities as economic activities.
82 That conclusion has been confirmed by the General Court on several occasions (see, to that effect, judgments of 20 September 2019, Port autonome du Centre et de l’Ouest and Others v Commission, T‑673/17, not published, EU:T:2019:643, paragraphs 63 to 65; of 20 September 2019, Le Port de Bruxelles and Région de Bruxelles-Capitale v Commission, T‑674/17, not published, EU:T:2019:651, paragraphs 63 to 65; and of 20 September 2019, Havenbedrijf Antwerpen and Maatschappij van de Brugse Zeehaven v Commission, T‑696/17, EU:T:2019:652, paragraphs 49 and 50).
83 It follows that the Commission did not infringe the principle of equal treatment as regards the activities of granting access and awarding concessions by referring, in the contested decision, to the earlier decisions concerning Belgian, French and Netherlands ports, since it treated comparable situations in the same way.
84 By contrast, as regards the grant of authorisations for port operations, it should be noted that such an activity has not yet been examined by the Commission. In that respect, as the applicants and the intervener rightly submit, in essence, the reasoning followed in the earlier decisions concerning Belgian and French ports cannot be directly transposed to the situation of PSA.
85 Moreover, it should be noted that the judgment of 24 October 2002, Aéroports de Paris v Commission (C‑82/01 P, EU:C:2002:617, paragraph 2), to which both the applicants and the Commission refer, likewise does not concern activities comparable to that of the grant of authorisations by PSA. Although that judgment refers to ‘licences’ granted by the manager of Orly and Roissy-Charles-de-Gaulle airports, they are not comparable to the authorisations granted in the present case.
86 The licences granted by the airport managers were commercial concessions granted to a limited number of providers of aircraft catering services at Orly airport, as well as concessions for the occupation of property located within the perimeter of that airport. In return, those providers undertook to pay the airport manager remuneration consisting in a site-occupancy fee in proportion to the surface area occupied and a fee based on a particular percentage of the turnover generated with the airlines.
87 In granting those concessions, the airport manager carrying on an economic activity exploited the commercial area located within the perimeter of the airport, whereas, in the context of the authorisations granted by PSA, the latter, exercising their public authority powers, monitor compliance by providers of port operations with the applicable legal requirements, as stated in paragraphs 100 to 102 below.
88 That said, it cannot be concluded from the foregoing that the Commission infringed the principle of equal treatment by treating different situations in the same way. In the contested decision, the conclusion reached by the Commission followed investigations specific to the present case and the application of the same principles of law.
89 The first complaint in the second part of the first plea must therefore be rejected.
– The second complaint, alleging that there is no market on which PSA offer their services
90 The applicants, supported by the intervener, submit that, since no market exists on which PSA offer their services, they cannot be regarded as undertakings. The contested decision presupposes the existence of a theoretical market, while disregarding the fact that the Italian legislation grants a legal monopoly to PSA, which excludes all, even potential, competition between the various ports.
91 The Commission disputes those arguments.
92 In that regard, it is sufficient to point out that the applicants and the intervener are wrong to assert that PSA are not exposed to any competition. Although, as the applicants maintain, each PSA holds a legal monopoly in the ports which it manages, the fact remains that, as the Commission correctly stated in essence, there is competition between certain Italian ports and certain ports in other Member States.
93 As regards the grant of access to ports, as rightly noted in recitals 142 and 143 of the contested decision, there is competition between certain Italian ports and certain ports of other Member States, since operators of port services may use several ports to reach the same hinterland.
94 Moreover, with regard to the grant of concessions for State-owned areas and docks, as is rightly noted in recital 144 of the contested decision, different ports compete to attract concessionaires able to exploit their State-owned areas, since potential concessionaires may seek to offer port services in other ports too.
95 It follows that the argument of the applicants and the intervener that the grant of access to ports and the grant of concessions for State-owned areas and docks do not constitute services provided on a given market must be rejected.
96 However, the analysis of the grant of authorisations for port operations in recitals 25 to 32 of the contested decision does not support the conclusion that this involves a service provided on a given market.
97 As explained in those recitals, PSA regulate and supervise the carrying out of port operations by third-party undertakings (in particular the operations of loading, unloading, transhipping, storage and handling of goods and any ship-related items), which are subject to prior authorisation.
98 That authorisation is given by the PSA concerned where the third-party undertaking fulfils the requirements laid down by decree of the Minister for Infrastructure and Transport (recital 29 of the contested decision). The duration of the authorisation is related to the operational programme proposed by the third-party undertaking (recital 31 of the contested decision). Authorised third-party undertakings are registered in separate registers administered by PSA (recital 28 of the contested decision) and their tariffs are made public by PSA (recital 30 of the contested decision).
99 Furthermore, the maximum number of permits which can be issued is determined by PSA (after consulting a local advisory committee), taking into account the operational requirements and the traffic of the port and ensuring a maximum level of competition in the sector (recital 32 of the contested decision).
100 Those tasks appear to constitute a supervisory function consisting in ascertaining that the undertakings concerned will be able to provide the port operations which they offer in accordance with the statutory requirements. The carrying out of such tasks is, in principle, a power of a public authority which is non-economic in nature (see, to that effect and by analogy, judgments of 18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160, paragraph 22, and of 20 September 2019, Port autonome du Centre et de l’Ouest and Others v Commission, T‑673/17, not published, EU:T:2019:643, paragraph 91).
101 In those circumstances, the Court finds that the Commission has not discharged its burden of proof concerning the classification of the grant of authorisations for port operations as constituting a service provided on a market (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 95).
102 It is therefore necessary to uphold the second complaint in the second part of the first plea so far as concerns the grant of authorisations for port operations and to reject the second part of that plea as to the remainder.
The third part, relating to the nature of the fees charged by PSA
103 The applicants, supported in that regard by the intervener, submit that the Commission misinterpreted Article 107(1) TFEU by failing to recognise that the fees charged by PSA constituted taxes and not remuneration for services of an economic nature. That follows not only from the classification of the various fees under Italian law, but also from the fact that those fees are determined by the State and are not linked to the commercial value of any specific service.
104 The Commission disputes those arguments.
105 It should be recalled, as stated in paragraph 69 above, that the classification of an entity under national law is not relevant for its classification as an undertaking within the meaning of the State aid rules.
106 Similarly, financing arrangements, in particular the classification of an entity’s income by the parties or in national law, are not relevant for the classification of that entity as an undertaking. Accordingly, as the Commission rightly points out, the designation used at national level for the amounts charged, whether called fees, port charges or port dues, does not affect that classification (see, to that effect, judgment of 15 March 2018, Naviera Armas v Commission, T‑108/16, EU:T:2018:145, paragraph 124).
107 Moreover, the applicants and the intervener have failed to establish their claim that the concession fees and port fees should be regarded as a tax payable to the State rather than as consideration for services of an economic nature. In particular, the main argument raised in that regard, namely that the State determines the amount of those fees, has no factual basis.
108 It is clear from the documents before the Court that concession fees comprise a fixed component and a variable component which can be waived by PSA in order to induce concessionaires to attain public interest and general policy objectives. In setting those fees, PSA may adopt criteria other than those set out in the applicable law, but, in any event, the amount of those fees cannot be lower than the amount resulting from the application of the legal criteria.
109 In addition, it is clear from the documents before the Court that, in order to cover the costs of the works which they carry out, PSA may impose surcharges on the goods loaded or unloaded and increase concession fees.
110 It follows that the influence of PSA on the amount of the concession fees and port fees serves to confirm the economic nature of the services which they provide in return for payment of those fees (see, to that effect, judgment of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 78).
111 The Court accordingly finds that the Commission has demonstrated to the requisite legal standard that the concession fees and port fees constitute consideration for the activities of an economic nature carried out by PSA.
112 However, as the Commission confirmed at the hearing, it did not examine the method used to calculate the authorisation fees, the amount of those fees or the degree of State control in that connection.
113 As the applicants and the intervener maintained in the application and at the hearing, without having been challenged on that point by the Commission, the amount of those fees is stable and relatively low – its basic parameters being determined by ministerial decree – and it may be increased slightly based on the turnover of the entity concerned.
114 In that context, it is necessary to bear in mind the settled case-law according to which the fact that a product or a service supplied by a public body and connected to the exercise by it of public powers in return for remuneration laid down by law is not sufficient for the activity carried out to be classified as an economic activity and the entity which carries it out as an undertaking (see, to that effect, judgments of 18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160, paragraphs 22 to 25, and of 12 September 2013, Germany v Commission, T‑347/09, not published, EU:T:2013:418, paragraph 30 and the case-law cited).
115 Since the Commission has not established, in the contested decision, that the fees, in the light of their nature, method of calculation and amount, represent consideration for a service of an economic nature, the line of argument of the applicants and the intervener that those authorisation fees must be regarded as a tax payable to the State rather than as such consideration cannot be rejected.
116 That is particularly true since, as stated in paragraph 84 above, there is no earlier Commission decision ruling on whether an activity such as the grant by PSA of authorisations for port operations is of an economic nature.
117 Moreover, as stated in paragraphs 96 to 102 above, it is by no means apparent from the contested decision that the activity in question consists in the provision of a service provided on a market.
118 Accordingly, the Commission has not demonstrated to the requisite legal standard that the authorisation fees constituted consideration for a service of an economic nature provided by PSA.
119 The third part of the first plea must therefore be upheld so far as concerns the grant of authorisations for port operations and rejected as to the remainder.
120 Consequently, it is necessary to examine the second to fourth pleas only so far as concerns the grant of access to ports and the grant of concessions for State-owned areas and docks.
The second plea in law, alleging misinterpretation of the concept of transfer of State resources under Article 107(1) TFEU
121 The applicants, supported in that regard by the intervener, submit that the IRES exemption does not entail any financial burden for the Italian State, since the activities of PSA are subject to audit by the Corte dei conti (Court of Auditors), their results are included in the consolidated profit and loss account of the State and their debts are considered to be debts of the State. The applicants claim that those particular features of the Italian port system were not taken into account by the Commission.
122 Moreover, the applicants, supported in that regard by the intervener, emphasise that the revenues of PSA must be used solely in carrying out their institutional mission, in particular ensuring the safety and good condition of State-owned infrastructure. For that reason, the IRES exemption does not entail a loss of resources for the State, since, in the absence of that exemption, the State would have to increase its financial contributions to PSA.
123 The Commission disputes those arguments.
124 In that regard, it should be recalled, as a preliminary point, that the concept of ‘aid’ includes not only positive benefits, such as subsidies, 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 judgment of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 30 and the case-law cited; see also, to that effect, judgment of 19 March 2013, Bouygues and Others v Commission and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 101 and the case-law cited).
125 Moreover, for advantages to be classified as aid within the meaning of Article 107(1) TFEU, they must benefit an undertaking, that is to say, an entity engaged in economic activities. If such an entity is legally separate from the State, the grant of an advantage to that entity for the purposes of Article 107(1) TFEU necessarily involves a transfer of State resources.
126 Although PSA are public-law entities under Italian law, they are constituted as legal entities separate from the State and from other public entities in Italy.
127 By virtue of the IRES exemption, PSA are exempt from payment of the taxes which would have been due on the basis of their economic activities. Without that exemption, certain amounts of tax would have been paid by PSA to the State. Accordingly, non-payment of those amounts gives rise to a transfer of State resources within the meaning of Article 107(1) TFEU (see, to that effect and by analogy, judgments of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 14, and of 11 September 2014, Greece v Commission, T‑425/11, EU:T:2014:768, paragraph 40).
128 Furthermore, it should be pointed out, as the Commission observes, that any undertaking, whatever its legal status, may be the recipient of State aid within the meaning of Article 107(1) TFEU. To accept the view that State aid rules do not apply on account of the fact that the beneficiary is a public undertaking and that the advantage conferred remains in the economic sphere of the State in the broad sense, would undermine the effectiveness of those rules and introduce unjustified discrimination between public beneficiaries and private beneficiaries, contrary to the principle of neutrality laid down in Article 345 TFEU (judgment of 19 December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph 67).
129 In the light of the foregoing, the Court finds that the Commission rightly states, in recital 133 of the contested decision, that the Italian tax authorities, by exempting PSA from IRES despite the fact that they are engaged in economic activities, forgo revenue which constitutes State resources. Accordingly, the IRES exemption gives rise to a transfer of State resources for the purposes of Article 107 TFEU.
130 The second plea must therefore be rejected as unfounded.
The third plea in law, alleging misinterpretation of the selectivity criterion
131 In the third plea, which is divided into five parts, the applicants, supported in that regard by the intervener, argue, in essence, that the Commission misinterpreted the selectivity criterion.
The first part, alleging confusion between the criterion of advantage and that of selectivity
132 The applicants, supported by the intervener, argue that, contrary to settled case-law which requires that the criterion of advantage and that of selectivity be assessed separately, the contested decision confused those two criteria by applying to the criterion of economic advantage the recommended method for examining the criterion of selectivity.
133 The Commission disputes those arguments.
134 As a preliminary point, it should be noted that a distinction must be drawn according to whether the measure in question is classified as an ‘aid scheme’ or as ‘individual aid’ within the meaning of Article 1(d) and (e) of Regulation 2015/1589. When examining individual aid, identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining an aid scheme, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, exclusively benefits certain undertakings or certain sectors of activity (see, to that effect, judgments of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60; of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 49; and of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 34).
135 In the present case, the measure in question, namely the IRES exemption, constitutes an aid scheme.
136 Contrary to what the applicants and the intervener argue, the two criteria of selectivity and advantage are examined separately in the contested decision. Indeed, both in recitals 135 to 138 and in recitals 158 to 176 of the contested decision, the Commission explains, in turn, that the advantage conferred on PSA consists in the exemption of their allegedly economic activities from IRES and that that advantage is granted only to PSA and not to other taxpayers which, in the light of the objective pursued by the reference tax system, are in the same factual and legal situation.
137 In the present case, it is true that the applicants and the intervener rightly observe that the substance of the analysis of the advantage and that of the analysis of selectivity largely overlap, but that is inherent in the fact that the methods of analysis of those two aspects are similar.
138 The potential existence of an advantage is determined on the basis of an exemption from the normal level of taxation, that is to say, by reference to the absence of any tax exemption.
139 It should not be seen as a contradiction that such an exemption from the normal level of taxation also constitutes the starting point for the analysis of selectivity, which focuses on whether the same advantage is received by other taxpayers which, in the light of the objective pursued by the reference tax system, are in the same factual and legal situation (see, to that effect, judgments of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraphs 54 to 57, and of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 60).
140 The first part of the third plea must therefore be rejected.
The second part, alleging that the reference system was incorrectly determined
141 The applicants, supported in that regard by the intervener, argue that the Commission, having wrongly considered PSA to be commercial entities subject to IRES, under Article 73(1)(c) of the TUIR, whereas they are, in fact, covered by Article 74 of the TUIR and are therefore, a priori, exempt from IRES, identified a reference system which was artificially broad.
142 According to the applicants and the intervener, PSA are in a factual and legal situation which differs from that of the entities referred to in Article 73 of the TUIR, in that they carry out only non-commercial activities. Consequently, Article 73 of the TUIR, which applies to entities which carry out commercial activities, and Article 74 of the TUIR, which applies solely to State and public entities which do not engage in commercial activities, have different scopes and therefore constitute separate reference systems. The applicants, supported by the intervener, submit that the reference system should have therefore been limited to Article 74 of the TUIR.
143 The Commission disputes those arguments.
144 In that regard, it should be recalled, as a preliminary point, that, in order to classify a national tax measure as selective, the Commission must begin by identifying the reference system, that is the normal tax system applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that reference system, in so far as it differentiates between operators who, in the light of the objective pursued by that system, are in a comparable factual and legal situation (see judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 35 and the case-law cited).
145 Moreover, in order to define the reference system, it is necessary to identify the entire body of rules influencing the tax burden on undertakings (Opinion of Advocate General Wahl in Andres (insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2017:1017, point 109). That approach ensures that a tax measure is assessed against a framework that includes all relevant provisions.
146 The reference system cannot consist of some provisions of the national law of the Member State concerned that have been artificially taken from a broader legislative framework (judgment of 28 June 2018, Andres (insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2018:505, paragraph 103).
147 In other words, where the tax measure in question is inseparable from the general tax system of the Member State concerned, reference must be made to that system (judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 63).
148 In the present case, the Commission, in recitals 159 to 164 of the contested decision, identified the IRES system provided for by the TUIR as the reference system which applied, in essence, to the income generated by all entities engaged in commercial activities. According to the Commission, that reference system includes the definition of taxable persons and taxable income resulting from Article 72 of the TUIR, read in conjunction with Article 73 thereof.
149 In that regard, it should be recalled that Article 72 of the TUIR lays down the principle that IRES applies to all income. Article 73(1) of the TUIR makes commercial companies and other public or private entities subject to IRES, whether or not they have as their exclusive or principal object the exercise of commercial activities.
150 The applicants, supported by the intervener, claim that the reference system consists solely of Article 74 of the TUIR.
151 In that regard, it should be recalled that that article provides, first, that certain State entities and certain regional or local authorities are not subject to IRES and, secondly, that the exercise of State functions by public entities is not regarded as being commercial in nature. In the present case, according to the interpretation adopted by the Italian tax authorities, PSA exercise only State functions and therefore should not be subject to IRES.
152 However, the fact remains that that article forms part of a wider tax system which lays down all the Italian provisions relating to IRES. That system defines, inter alia, taxable persons, taxable profits and tax rates. According to Article 73(1)(b) and (c) of the TUIR (see paragraph 17 above), taxable persons include, inter alia, public entities, whether or not their activities are of an economic nature.
153 Article 74 of the TUIR is inseparable from the IRES system provided for by the TUIR. That provision exempts certain entities and certain activities from the imposition of IRES, which presupposes the existence of a primary rule providing for the taxation of those entities and activities. That primary rule is provided for, inter alia, by Article 73(1)(b) and (c) of the TUIR, which states that the exercise of a commercial activity by an entity governed by public or private law is the decisive criterion for liability to IRES. Without that primary rule, which derives from the broader IRES system, in particular from Article 73(1)(b) and (c) of the TUIR, the exemption provided for in Article 74(2) of the TUIR would be devoid of any purpose.
154 Lastly, it is common ground that income from commercial activity, within the meaning of the TUIR, which appears to correspond to the concept of ‘economic activity’ within the meaning of the State aid rules, must be taxed under Article 73(1) of the TUIR. At the hearing, the applicants confirmed that, in the event that one or more activities of PSA are classified as economic activities, the income from that or those activities should be subject to IRES.
155 In fact, it is clear that the applicants’ line of argument, alleging an incorrect definition of the reference system, is largely based on the assumption that PSA do not engage in any economic activity. However, as is apparent from paragraphs 95 and 111 above, the grant of access to ports and the grant of concessions for State-owned areas and docks were rightly classified by the Commission as economic activities. Accordingly, the assumption underlying the applicants’ line of argument cannot be accepted.
156 In the light of the foregoing, the second part of the third plea must be rejected.
The third part, alleging derogation from the reference system
157 The applicants, supported in that regard by the intervener, argue that the Commission misapplied the second stage of the selectivity analysis by merely identifying a derogation from the reference system without identifying undertakings which are in the same factual and legal situation as PSA.
158 According to the applicants, in so far as Article 74 of the TUIR is the reference system, the IRES exemption does not depart from that system and, since all the entities referred to in that article are covered by the same reference system, there is no derogation in favour of any of the categories of entities referred to therein.
159 Moreover, the objective of the IRES system provided for by the TUIR is not to tax the income of companies and other legal entities, irrespective of whether or not they are engaged in economic activities. The objective of Article 74 of the TUIR is to ensure that the public administration is not subject to IRES.
160 The Commission disputes those arguments.
161 In that regard, it should be noted, as a preliminary point, that the second stage in assessing the potential selectivity of a national tax measure consists, according to settled case-law, in determining whether the tax measure at issue derogates from the reference system, in that it differentiates between operators which, in the light of the objective pursued by that system, are in a comparable factual and legal situation (see judgment of 19 December 2018, A-Brauerei, C‑374/17, EU:C:2018:1024, paragraph 36 and the case-law cited).
162 It is therefore in the light of the objective of the reference system that it is necessary to examine whether PSA are in a factual and legal situation comparable to other entities which are subject to IRES and which are not exempt under Article 74 of the TUIR.
163 As stated in paragraph 153 above, the objective of the reference system, namely the IRES system and in particular Articles 72 and 73 of the TUIR, is, in essence, the imposition of IRES on the income generated by every entity engaged in economic activities, whether it is governed by private law or public law, as the Commission rightly points out (see, to that effect and by analogy, judgments of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 54, and of 20 September 2019, Port autonome du Centre et de l’Ouest and Others v Commission, T‑673/17, not published, EU:T:2019:643, paragraph 178).
164 In the light of that objective, the factual and legal situation of PSA, in so far as they engage in economic activities, is comparable, if not identical, to that of other entities subject to IRES, and not to that of the State and that of public entities in the exercise of powers of a public authority. To that extent, there is no difference between the economic activities of PSA and those of other entities subject to IRES. It must therefore be found that, in exempting the income of PSA, including income deriving from economic activities, from IRES, Article 74 of the TUIR, as interpreted and applied by the Italian tax authorities, derogates from the reference system for the benefit of PSA.
165 Moreover, it must be reiterated that the applicants’ line of argument that there is no derogation from the reference system is based, in essence, on the erroneous premiss that PSA do not engage in any economic activity. As already stated in paragraphs 95 and 111 above, that premiss must be rejected. Furthermore, as is apparent from paragraphs 163 and 164 above, in the event that one or more activities of PSA are classified as economic activities, the income from those activities should be subject to IRES.
166 In the light of the foregoing, the third part of the third plea must be rejected.
The fourth part, alleging that the derogation is justified by the nature or general scheme of the reference system
167 The applicants submit that the contested decision is erroneous in that it concluded that the IRES exemption cannot be justified by the general scheme and nature of the tax system. In fact, that exemption is justified because it derives directly from the basic or guiding principles of the reference system, such as the principle that the State should not be taxed, the principle that tax should not be imposed on a tax and the principle that bodies managing collective property are not subject to IRES.
168 The Commission disputes those arguments.
169 In that regard, it should be recalled, as a preliminary point, that a measure which derogates from the reference system may be justified by the nature or general scheme of that system, which would render the measure non-selective. That is the case where a measure derives directly from the basic or guiding principles of the reference system or where it is the result of mechanisms inherent in the system which are necessary for the functioning and effectiveness of the system (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 69).
170 As the Commission rightly points out, it is for the Member State, and where appropriate the interested parties, to show that the derogation from the reference system is actually justified by the nature or general scheme of that system (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 146).
171 As the Commission has observed, however, neither the Italian authorities nor the interested parties put forward any arguments to that effect during the administrative procedure; moreover, that observation has not been disputed by PSA or the intervener. The absence of such arguments is sufficient to support the conclusion that the measure in question is not justified by the nature and general scheme of the reference system. PSA’s assertion that, in essence, the Commission should have demonstrated the absence of such justification therefore disregards the settled case-law on that point (see, to that effect and by analogy, judgments of 29 April 2004, Netherlands v Commission, C‑159/01, EU:C:2004:246, paragraph 43, and of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 103).
172 It is true that PSA argued that the exemption provided for in Article 74 of the TUIR derives from general principles of Italian tax law, that is to say, the principle that the State should not be taxed, the principle that tax should not be imposed on a tax and the principle that bodies managing collective property are not subject to IRES.
173 It should be noted that that argument is based again on the erroneous premiss that PSA engage only in activities of a non-economic nature. As already stated in paragraphs 85, 86, 107 and 111 above, that premiss must, however, be rejected.
174 In the light of the foregoing, the fourth part of the third plea must be rejected.
The fifth part, alleging that the earlier decisions concerning Belgian, French and Netherlands ports are irrelevant
175 The applicants emphasise the differences between the IRES system provided for by the TUIR, on the one hand, and the tax systems at issue in the earlier decisions concerning Belgian, French and Netherlands ports, on the other hand.
176 The Commission disputes those arguments.
177 It should be noted that the Commission’s analysis of the selective nature of the IRES exemption, set out in recitals 158 to 174 of the contested decision, is not based on the earlier decisions concerning Belgian, French and Netherlands ports. Consequently, any differences between the cases which led to those decisions and the present case have no bearing on the legality of that analysis by the Commission.
178 It follows that it is necessary to reject the fifth part and, therefore, the third plea in its entirety.
The fourth plea in law, alleging an error in assessing the conditions relating to the distortion of competition and the effect on trade between Member States, as well as a failure to state adequate reasons
179 The applicants and the intervener argue that the decision is erroneous in so far as it concludes that the IRES exemption distorts competition and affects trade between Member States.
180 In the first place, the applicants submit that the contested decision is vitiated by an inadequate statement of reasons, since the Commission merely presumed that the measure in question distorted competition and affected trade between Member States, without, however, establishing the existence of those two elements.
181 In the second place, the applicants and the intervener state that, since Article 107(1) TFEU applies only to sectors which are open to competition, that article cannot be applicable to the Italian port sector, which is closed to competition and not liberalised.
182 In the third place, the applicants submit that the Commission made an error of assessment in stating that undertakings wishing to establish themselves close to a port could also do so outside the port on land which was neither owned nor managed by a PSA, so that PSA are in competition with other operators renting out land outside ports. According to the applicants and the intervener, all Italian coastal territory capable of attracting port activities is State owned, with the result that any undertaking wishing to engage in such an activity is subject to the authority of PSA.
183 In the fourth place, the applicants submit that the decision disregards the case-law according to which, in the absence of a harmonised tax policy at EU level, the Commission is not permitted to carry out a comparative examination of the tax rules in force in the various Member States. Accordingly, the existence of a potential distortion of competition should be examined at national level and without regard to the conditions existing in other Member States.
184 In the fifth place, the contested decision is allegedly vitiated by a misuse of powers and a lack of competence and infringes Articles 107, 116 and 117 TFEU, since, in so far as the Commission is seeking to declare that distortions resulting from disparities between the laws, regulations or administrative provisions of the Member States are unlawful, it should have acted on the basis of Articles 116 and 117 TFEU and not under the State aid rules.
185 The Commission disputes those arguments.
186 In that regard, in the first place, it is necessary to reject the complaint alleging infringement of Article 296 TFEU on account of a failure to state reasons in the contested decision concerning the effect on trade between Member States and the distortion of competition for the purposes of Article 107 TFEU.
187 As the Commission correctly observes, the fact remains that the contested decision is sufficiently reasoned since the Commission devoted recitals 139 to 157 to the effect on trade between Member States and the distortion of competition. Moreover, it is clear from the examination of the various pleas that the contested decision has enabled the applicants to ascertain the reasons for the measure taken in that regard and the General Court to exercise its power of review.
188 Accordingly, the applicants’ argument alleging infringement of Article 296 TFEU must be rejected.
189 In the second place, it is necessary to examine the argument of the applicants and the intervener that, in essence, the Commission disregarded the fact that the Italian port sector was characterised by an absence of liberalisation caused by the existence of a legal monopoly in each Italian port.
190 In that regard, it should be noted that, as stated in paragraph 93 above, competition exists between some Italian ports and some ports of other Member States, since operators of port services may choose between several ports which serve the same hinterland. Moreover, as stated in paragraph 94 above, PSA compete to attract concessionaires able to operate the State-owned areas in the ports which they manage.
191 The existence of that potential competition is sufficient to support the conclusion that the IRES exemption is liable to distort competition and affect trade between Member States (see, to that effect, judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 65).
192 In the third place, as regards, in particular, the existence of competition between PSA and operators renting out land outside ports, it should be noted that it is true that the geographical and spatial context of the ports concerned appears to prevent third parties from exploiting land in competition with PSA, which is not disputed by the Commission.
193 That finding is not sufficient, however, to call into question the Commission’s conclusion that the IRES exemption is liable to affect trade between Member States and distort competition.
194 The other grounds set out in the contested decision in that connection – in particular, as stated in paragraphs 92 to 94 above, the existence of a certain amount of competition to which Italian ports are exposed – suffice to support that conclusion of the Commission. Accordingly, that argument is ineffective.
195 In the fourth place, contrary to what the applicants claim, the absence of harmonisation in the field of direct taxation does not mean that the potential distortion of competition must be examined solely at national level. Although the condition relating to selectivity, for the purposes of Article 107(1) TFEU, can be assessed only at the level of a single Member State and emerges only from an analysis of the difference in treatment between the undertakings and the production of certain goods of that Member State, the assessment of the condition relating to the distortion of competition, for the purposes of Article 107(1) TFEU, is not necessarily limited to the undertakings and the production of certain goods of the Member State concerned since, in order to fall within the scope of Article 107 TFEU, an aid measure must distort or threaten to distort competition by affecting trade between Member States (see, to that effect and by analogy, judgment of 11 November 2004, Spain v Commission, C‑73/03, not published, EU:C:2004:711, paragraphs 28 and 29).
196 Moreover, in the case of a State aid scheme, such as the IRES exemption, the Commission may confine itself to an examination of the characteristics of that scheme in order to assess whether it is capable of distorting competition by essentially benefiting undertakings engaged in trade between Member States (see, to that effect and by analogy, judgment of 14 October 1987, Germany v Commission, 248/84, EU:C:1987:437, paragraph 18). Since the port sector is characterised by cross-border trade, the Commission was entitled to find that the IRES exemption was liable to distort competition between certain Italian ports and certain ports in other Member States.
197 Lastly, it is necessary to reject the applicants’ arguments alleging a misuse of powers, since those arguments are irrelevant in the light of the circumstances of the present case, as stated in paragraphs 56 to 58 above. For the same reasons, the applicants’ arguments relating to lack of competence must also be rejected.
198 The fourth plea must therefore be rejected.
Conclusion
199 Although the operative part of the contested decision is drafted in general terms, in that it classifies the IRES exemption as an existing State aid scheme incompatible with the internal market and orders the Italian Republic to remove that exemption, it follows from the recitals of that decision, in the light of which its operative part must be interpreted (see, to that effect, judgment of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 131), that the operative part relates only to the economic activities carried out by PSA.
200 As stated in paragraphs 118 and 119 above, the Commission has not demonstrated to the requisite legal standard that the granting of authorisations for port operations constituted an economic activity. In the light of the separable nature of the activities of PSA which are classified as economic activities in the contested decision and with a view to ensuring legal certainty in the implementation of that decision by the Italian Republic, the contested decision must be annulled in so far as it classifies the grant of authorisations for port operations as an economic activity (see, to that effect and by analogy, judgments of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 77, and of 30 September 2003, Germany v Commission, C‑239/01, EU:C:2003:514, paragraph 33). The action must be dismissed as to the remainder.
Costs
201 As stated in paragraph 200 above, the contested decision must be annulled in so far as it classifies one of the three activities carried out by PSA, that is to say, the grant of authorisations for port operations, as an economic activity.
202 Pursuant to Article 134(3) of the Rules of Procedure of the General Court, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. Moreover, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs.
203 It should be noted that both the applicants, supported by the intervener, and the Commission have been partially unsuccessful in their claims and that the contested decision has been annulled in part.
204 Moreover, in the rejoinder, the Commission informs the Court of the publication of the defence on the ‘Shipping Italy’ website. In that regard, the Commission submits that that publication constitutes an improper use by the applicants of pleadings, which should have an effect on the costs, pursuant to Article 135(2) of the Rules of Procedure, according to which the General Court may order a party, even if successful, to pay some or all of the costs, if that appears justified by the conduct of that party.
205 However, the Commission did not adduce any evidence that the applicants were responsible for the publication of the defence on the internet. As a result, it was not possible to determine with certainty the source of the leak of that document. Consequently, while such an incident is regrettable, in the absence of evidence to support the Commission’s allegations, its request cannot be granted.
206 In the light of the foregoing, each party should be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber, Extended Composition)
hereby:
1. Annuls Commission Decision (EU) 2021/1757 of 4 December 2020 on the aid scheme SA.38399 – 2019/C (ex 2018/E) which Italy implemented – Corporate Taxation of Ports in Italy, in so far as it classifies the grant of authorisations for port operations as an economic activity;
2. Dismisses the action as to the remainder;
3. Orders Autorità di sistema portuale del Mar Ligure occidentale and the other applicants whose names are set out in the annex, Associazione Porti Italiani (Assoporti) and the European Commission each to bear their own costs.
Delivered in open court in Luxembourg on 20 December 2023.
[Signatures]