Commission Decision
of 19 December 2012
on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy
(notified under document C(2012) 9461)
(Only the Italian text is authentic)
(Text with EEA relevance)
(2013/284/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Whereas:
- (a)
exemption from the municipal tax on real estate (‘imposta comunale sugli immobili’, hereinafter ‘ICI’) for real estate used by non-commercial entities and intended exclusively for social assistance, welfare, health, cultural, educational, recreational, accommodation, sports and religious activities (Article 7(1)(i) of Legislative Decree No 504 of 30 December 1992);
- (b)
a 50 % corporate tax reduction for the entities listed in Article 6 of Presidential Decree No 601 of 29 September 1973 - primarily social welfare organisations, non-profit education and research bodies, and charitable and teaching institutions (including ecclesiastical institutions). This provision also includes social housing entities and cultural foundations and associations.
Following the complaints received about the above ICI exemption, the Commission sent the Italian authorities an initial request for information on 5 May 2006. In the light of the information sent by Italy on 6 June 2006, and following the entry into force of some amendments to the ICI legislation, the Commission informed the complainants by letter of 8 August 2006 that, on the basis of a preliminary analysis, there were no grounds for pursuing the investigation.
However, by letter dated 24 October 2006, the complainants again pointed out that the ICI exemption for non-commercial entities was contrary to Article 107(1) of the Treaty. By letter of 14 November 2006, the Commission informed them that, on the basis of the information available, there were no grounds for further investigating the ICI exemption.
In January and September 2007, the Commission received further letters from the complainants about the ICI exemption. In their letter of 12 September 2007, they drew the Commission's attention to Article 149 of the Income Tax Code (‘Testo Unico delle Imposte sui Redditi’, hereinafter ‘TUIR’) approved by Presidential Decree No 917 of 22 December 1986. In their view, that Article granted favourable tax treatment only to ecclesiastical institutions and amateur sports clubs.
On 5 November 2007, the Commission invited the Italian authorities and the complainants to provide further information about all the alleged preferential provisions cited by the complainants. The Italian authorities provided the requested information by letters dated 3 December 2007 and 30 April 2008. The complainants submitted additional information by letter of 21 May 2008.
On 20 October 2008, the complainants sent a letter of formal notice (Article 265 of the Treaty), asking the Commission to open the formal investigation procedure and to adopt a formal decision on their complaints.
On 24 November 2008, the Commission sent another request for information to the Italian authorities, to which they replied by letter of 8 December 2008.
By letter dated 19 December 2008, the Commission informed the complainants that, on the basis of a preliminary analysis, it considered that the measures did not appear to constitute state aid and that accordingly there was no need to pursue the investigation.
On 26 January 2009, the Italian Finance Ministry issued ‘Circolare 2/DF’ (hereinafter ‘the Circular’) to clarify further the scope of the ICI exemption for non-commercial entities. On 2 March 2009, the complainants wrote to the Commission expressing their dissatisfaction with the legislation in force and criticising the Circular.
By e-mail of 11 January 2010, the complainants again asked the Commission to initiate the formal investigation procedure, even in the light of the contents of the Circular. On 15 February 2010, the Commission, having taken note of the Circular, sent a letter to the complainants confirming the reasoning set out in their letter of 19 December 2008.
By letter of 10 November 2010, the Italian authorities asked the Commission for copies of the letters sent to the complainants between 2006 and 2010. These were sent to Italy on 2 December 2010.
Between 21 January and 4 April 2011, the Commission received comments on the decision initiating the procedure from 80 interested parties, which are listed in Annex 1 to this Decision.
By letter of 2 March 2011, the Commission received comments from Italy on the decision initiating the procedure. The Commission then forwarded the third parties' comments to the Italian authorities, which submitted their reactions on 10 June 2011.
On 19 July 2011, a technical meeting was held between the Italian authorities and the Commission.
By letter dated 15 February 2012, Italy informed the Commission of its intention to adopt new legislation concerning the municipal real estate tax and announced that ICI had been replaced by the Imposta Municipale Propria (hereinafter ‘IMU’) as of 1 January 2012.
Following Italy’s adoption of Law No 27 of 24 March 2012, which included new provisions on the IMU exemption for non-commercial entities performing specific activities but left a number of aspects to be defined in future implementing legislation, the Commission sent the Italian authorities a request for information on 16 May 2012.
On 27 June 2012, the Commission received additional information from the complainants, including comments on the new IMU legislation. On 6 July 2012, these observations were forwarded to Italy for comment.
By letter dated 5 September 2012, Italy provided the Commission with the information requested and also its comments on the third parties’ observations forwarded to it on 6 July 2012.
Subsequently, by letter of 21 November 2012, the Italian authorities sent the Commission a copy of the IMU implementing regulation adopted on 19 November 2012.
In 1992 the Italian authorities introduced a municipal tax on real estate (ICI). As laid down in Legislative Decree No 504 of 30 December 1992, all physical and legal persons that were in possession of real estate (for reasons of ownership, right of usufruct, use, occupancy or leasehold) were liable for the tax. The tax was payable by both residents and non-residents, irrespective of the use made of the real estate, and it was calculated on the basis of the cadastral value.
According to Article 7(1)(i) of Legislative Decree No 504/92, real estate used by non-commercial entities exclusively for social assistance, welfare, health, educational and accommodation services and cultural, recreational, sports and religious activities was exempted from ICI.
- i.the real estate must be used by non-commercial entities8. The law defines non-commercial entities as public and private entities that are not companies and whose activities are not exclusively or primarily commercial;
- ii.
the real estate must be used exclusively for performing the activities listed in Article 7(1)(i).
In Circular 2/DF of 26 January 2009, the Italian authorities clarified which entities could be considered non-commercial and the characteristics required of the activities performed by these entities for entitlement to the exemption.
The Circular stated that non-commercial entities could be both public and private. Specifically, the following were considered to be public non-commercial entities: the State, regions, provinces, municipalities, chambers of commerce, health agencies, public bodies set up exclusively for welfare, assistance and health purposes, non-economic public entities, welfare and assistance bodies, universities and research institutes, and special public service bodies (the former ‘IPAB’). Examples of private non-commercial bodies given in the Circular include the following: associations, foundations, committees, NGOs, amateur sports clubs, voluntary service organizations, bodies classified for tax purposes as non-profit organisations (‘ONLUS’) and ecclesiastical bodies belonging to the Catholic Church and other religious denominations.
The ICI was replaced by the IMU as of 1 January 2012. The rules on the municipal real estate tax for non-commercial entities were also amended in the course of 2012, as explained in Section 5.
In particular, Article 149(1) TUIR states that a non-commercial body will lose that status if it carries on chiefly commercial activities during an entire tax period.
Article 149(4) TUIR states that the above provisions (i.e. Article 149(1) and (2) TUIR) do not apply to ecclesiastical bodies that have been granted civil law status or to amateur sports clubs.
The Commission initiated the formal investigation procedure into the municipal real estate tax exemption (ICI exemption) for real estate used by non-commercial entities for specific purposes because it seemed to qualify as state aid within the meaning of Article 107(1) of the Treaty. The Commission likewise initiated the formal investigation procedure into Article 149(4) TUIR, according to which the provisions on loss of non-commercial status do not apply to ecclesiastical bodies and amateur sports clubs.
As regards the ICI exemption, the Commission concluded that the reference system for assessing the measure in question was ICI itself. By granting an exemption to non-commercial entities using their real estate for specific activities, some of them deemed to be economic, the measure departed from the reference system (according to which every legal person in possession of real estate must pay the corresponding municipal tax, irrespective of what it was used for). Granting an exemption only to non-commercial entities that performed specific activities with a certain social value was not considered to be justified by the nature and general structure of the Italian system for municipal real estate tax.
As regards Article 149(4) TUIR, the Commission identified income tax as the reference system. The Commission concluded that the measure was, at first sight, selective, since it seemed to offer the possibility – but only to ecclesiastical bodies and amateur sports clubs - to maintain their non-commercial status, even though they were no longer considered to be non-commercial entities. Such a measure could not be justified on the basis of the underlying principles of the Italian tax system.
As regards compatibility, Article 107(2) of the Treaty did not appear to apply to the measures. Moreover, none of the exceptions under Article 107(3) seemed to apply, except for Article 107(3)(d) on the promotion of culture and heritage conservation. Indeed, as regards the ICI exemption, the Commission considered that this exception could have been applied to specific activities performed by non-commercial entities performing exclusively educational, cultural and recreational activities. Finally, the Commission did not rule out the possibility that certain activities might be classified as services of general economic interest in accordance with Article 106(2) of the Treaty. The Italian authorities had not, however, provided any information allowing it to assess the compatibility of the measures in question with the internal market.
To summarise, the Italian authorities consider that the entities that benefited from the ICI exemption were not ‘undertakings’ for the purposes of Union law. In any case, the activities carried on by such entities had an important public and social function. Thus, it was in keeping with the nature and logic of the taxation system to provide for differentiated tax treatment for purely economic activities, on the one hand, and social assistance, charity, solidarity and religious activities, on the other hand. The Italian authorities also contested the classification of the ICI measure as new aid. According to them, the measure should be assessed in the light of the continuity it provided with the earlier property taxes (which already applied before the entry into force of the EEC Treaty). Furthermore, on the basis of the letters of rejection sent to the complainants, the measure should be deemed to have been approved by the Commission. In any event, the Commission had created a legitimate expectation on the part of the recipients of the measure because of a reply to a parliamentary written question and also because it had informed the complainants of its preliminary position, of which the Italian authorities had also been apprised informally.
As regards Article 149(4) TUIR, the Italian authorities claim that, despite what its wording suggests, ecclesiastical bodies and amateur sports clubs can lose their non-commercial status. In that case, those entities would no longer enjoy any tax relief.
Of the 80 interested third parties, 78 of them (hereinafter ‘the 78 interested parties’) share the views of the Italian authorities, whereas two third parties (hereinafter ‘the two interested parties’ or ‘the complainants’) from among the original complainants, consider that both ICI and Article 149(4) TUIR constitute unlawful state aid measures, incompatible with the internal market. The arguments of the 78 interested parties will accordingly be presented together with the Italian authorities’ position, while the arguments of the complainants will be addressed separately.
The Italian authorities and the 78 interested parties claim that the specific activities carried on by non-commercial entities benefiting from the ICI exemption cannot be considered economic activities. They argue that these activities – mainly targeting very specific categories of recipients - do not constitute an offer of goods or services on the market and are thus not in competition with the activities carried on by commercial undertakings. Therefore, these non-commercial entities, which operate in sectors of public interest, cannot be considered undertakings, which is a prerequisite for the application of Article 107(1) TFEU.
According to the Italian authorities and some of the 78 interested parties, in most cases these activities have specific characteristics. For example, they are performed in the public interest or for solidarity purposes, either free of charge or for reduced fees. In view of the specific features and the particular purposes of the non-commercial entities in question, it is not possible to classify them as undertakings.
The Italian authorities and the 78 interested parties consider that the ICI exemption does not constitute a departure from the general tax system but merely represents the application of the guiding principles of that system.
Moreover, it is up to the Member State to define which activities are of public interest. The only limitation on the Member State is that the differentiated tax treatment must be coherent, i.e. it must be in line with the logic of the tax system as a whole and an adequate system of controls must also be set up. Both conditions are met in the case of the ICI exemption in question.
The rationale of the ICI exemption is based on Articles 2 and 3 of the Italian Constitution, requiring fulfilment of the duties of political, economic and social solidarity towards citizens, and Article 38, which establishes the right to social welfare for people without the necessary means of subsistence. It should also be noted that non-commercial entities assist the State in performing specific tasks of social concern. The State has always recognized the specific role of these entities, as it is aware that it would be impossible for it alone to provide welfare, health, cultural, educational and sports services.
The Italian authorities reiterated that, as indicated in the Circular, the two cumulative conditions described in paragraph 25 (subjective and objective requirement) had to be met for entitlement to the ICI exemption.
According to the Italian authorities, ICI represents the logical legislative progression from the earlier property taxes - with which it provides formal and material continuity. Exempting real estate used for specific activities with a high social value has always been a key element of all real estate legislation since 1931, well before the entry into force of the EEC Treaty.
The Italian authorities and the 78 interested parties also consider the ICI exemption to have been approved by the Commission on the basis of the letters of rejection sent to the complainants, of which Italy was informed.
For these reasons, the ICI exemption – if considered to be aid – should be considered existing aid.
The Italian authorities decided not to submit any comments on the possible compatibility of the measures pursuant to Article 107(2) and (3) of the Treaty or on their possible classification as services of general economic interest under Article 106(2) and the Altmark case law.
Some of the 78 interested parties maintain that the ICI exemption is compatible with Articles 106(2) and 107(3)(c) of the Treaty as the measure is necessary for performing socially useful activities based on the solidarity principle. Moreover, the exemption does not significantly distort competition and does not have an appreciable effect on trade between Member States.
The Italian authorities argue that the Commission’s replies to the complainants concerning the ICI exemption, of which Italy was informally apprised, had created a legitimate expectation on the part of non-commercial entities as to the compatibility of the ICI exemption with Union law.
This would imply that, if the Commission considered the measure to be unlawful and incompatible aid, without accepting it as existing aid, it should not order recovery of the aid, pursuant to Article 14(1) of Regulation (EC) No 659/1999.
According to some third parties, recovery should not in any case be ordered in respect of Article 149(4) TUIR since it would be very difficult and burdensome for the national authorities to quantify the hypothetical advantage gained.
As indicated in the Revenue Agency’s Circular No 124/E of 12 May 1998, ecclesiastical bodies with civil-law status can be considered non-commercial entities only if the sole or principal scope of their activities is of a non-commercial nature.
The Italian authorities confirmed that checks were carried out on both ecclesiastical institutions and amateur sports clubs. As regards ecclesiastical institutions, the Interior Ministry also carried out the checks for which it is responsible but did not find any form of abuse.
The Circular itself gave a selective advantage to entities that should really be considered undertakings. In many cases, the possibility of the activities described in the Circular being granted the ICI exemption depended solely on the entity not making any profits. However, based on the principles laid down in EU case law, the fact that an entity is non-profit-making is irrelevant for the purposes of applying state aid rules. Therefore the Circular did not solve the state aid issues relating to the ICI exemption, since this exemption continued to apply to non-commercial entities performing an economic activity but not to entities that performed the same activity but were profit-making.
According to the complainants, it was in any case practically impossible to acquire specific data on the real estate belonging to the entities in question, mainly because these entities were not required to declare the real estate that was ICI exempted.
As regards Article 149(4) TUIR, the complainants consider that it is not possible for ecclesiastical institutions to lose their non-commercial status.
As far as the ICI exemption and Article 149(4) TUIR are concerned, the complainants agree with the Commission’s preliminary conclusions on the presence of state resources and the existence of an advantage, and also as regards selectivity, distortion of competition and effects on trade.
As for the compatibility of the measures at issue, the complainants agree with the Commission's preliminary conclusion that Articles 107(2) and 107(3)(a), (b) and (c) of the Treaty are not applicable. However, they disagree on the possibility of applying the exception under Article 107(3)(d) to certain entities that perform exclusively educational, cultural and recreational activities. The complainants also consider that the conditions of the Altmark case law are not met in the case at hand.
The Italian authorities sent their observations on the third parties’ comments by letter of 10 June 2011.
First, even supposing that certain activities carried on by non-commercial entities benefiting from the exemption can actually be classified as economic activities, the Commission must still prove that the advantage granted is selective and that it is not justified by the logic of the Italian tax system.
Second, as regards the generic observations made about the Circular, the Italian authorities consider that the Commission is called on to examine a measure that involves a tax exemption. This means that it must assess the interpretative criteria of the legislation indicated by the national authorities and also the existence of an adequate system of controls.
In particular, regarding the alleged difficulties - referred to by the complainants - of gathering data on real estate belonging to non-commercial entities, the Italian authorities point out that the requirement to submit the ICI declaration was abolished in 2006. The Italian authorities also point out that both the cadastral system and the databases on real estate are currently being reorganised.
As also acknowledged by the complainants, the Italian authorities note that Article 149(4) TUIR is neither a stand-alone provision nor one with material scope but instead a procedural provision that is relevant solely from the point of view of controls.
As part of the so-called reform of fiscal federalism, it was decided under Legislative Decree No 23 of 14 March 2011 that IMU would replace ICI as of 1 January 2014. By Decree Law No 201 of 6 December 2011, converted into Law No 214 of 22 December 2011, Italy decided to bring forward the introduction of IMU to 2012.
All persons in possession of real estate are liable for IMU. The taxable base is calculated on the basis of the real estate’s value, which is determined by taking the cadastral income of the real estate and applying the criteria in Article 5 of the ICI Decree (Legislative Decree No 504/92), together with the criteria laid down by Decree Law No 201/2011. Multipliers, which vary according to the real estate’s cadastral category, are applied to the value established in accordance with the above criteria. The standard IMU rate is 0,76 %.
The cadastral system is therefore of fundamental importance for real estate taxes. The minimum unit relevant for cadastral purposes can be a building or part of a building or a set of buildings or an area, provided that they are autonomous in terms of function and income. The Italian cadastral system, which is due to be revised, identifies six categories of real estate. Group A includes real estate for housing or similar purposes; Group B includes real estate used for collective use, such as colleges, hospitals, public offices, schools; Group C includes real estate used for ordinary commercial purposes, such as shops, stores and buildings and premises used for sports; Group D includes real estate for special purposes, such as hotels, theatres, hospitals and buildings and premises used for sports; Group E includes real estate for special purposes, such as for land, sea and air transport services, toll bridges, lighthouses, buildings for public worship activities. Group F includes real estate registered in fictitious categories.
According to the two parties, Article 91a(2) and (3) of Decree Law No 1/2012 depart from the ordinary rules on the taxation of real estate.
The two interested parties submit that the reference to Decree Law No 262/2006, contained in Article 91a(2), should be read as a general reference to the procedure of cadastral reclassification. According to the two parties, if the procedure established by Decree Law No 262/2006 were applicable only to real estate belonging to cadastral Group E, the requirement to ‘divide up’ property with a mixed use would be applicable to only a very limited number of buildings, i.e. buildings in categories E7 and E9.
The two parties also argue that the declaration under Article 91a(3) could pose avoidance issues and the new law would leave too much discretionary power to the public authorities. In addition, the new rules will apply only as of 1 January 2013 and therefore, in any case, the Commission should order the recovery of the aid unlawfully granted under the ICI exemption from 2006 to 2012.
The Italian authorities explained that the reference to Article 2(41), (42) and (44) of Decree Law No 262/2006 contained in Article 91a(2) should be read as a general reference to the type of procedure to be followed for dividing up a mixed use property. This procedure applies irrespective of the cadastral category.
Italy also explained that, in general, the Italian tax system is based on the obligation for taxpayers to submit a tax declaration and that it is a very common legislative practice to leave the regulation of specific aspects to the implementing legislation. Moreover, as the law adopted in March 2012 introduces a new system for the declaration of real estate used by non-commercial entities, it was necessary to postpone the entry into force of the new system for those entities.
In order to ascertain whether a measure constitutes aid, the Commission must assess whether the measure at issue fulfils all the conditions laid down in Article 107(1) of the Treaty. This provision states that: ‘save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.’ In line with this provision, the Commission will examine whether the measure: (i) is financed by the State or through state resources; (ii) provides a selective advantage; (iii) affects trade between Member States and distorts or threatens to distort competition.
First the Commission needs to assess whether at least some of the non-commercial entities involved are in fact undertakings for the purposes of Union competition law.
In the decision initiating the procedure, the Commission noted that the non-commercial entities concerned by the measures in question performed, at least partially, economic activities and were therefore classified as undertakings on the basis of those activities.
- a)
they are provided free of charge or at reduced fees/prices;
- b)
they are provided for purposes of solidarity and social benefit, which fall outside the scope of commercial undertakings;
- c)
they have a reduced tax-paying capacity compared with commercial undertakings, which operate on market principles;
- d)
they generate deficits or low income; any profit must be reinvested in line with the entity’s objectives.
In view of these characteristics and the specific aims of the non-commercial entities in question, it is not possible to consider these entities to be undertakings.
First, the status of an entity under a specific national law is immaterial. This means that its legal and organisational form is irrelevant. Therefore, even an entity which is classified as an association or a sports club under national law may nevertheless be regarded as an undertaking for the purposes of Article 107(1). The only relevant criterion is whether or not the entity concerned carries on an economic activity.
Third, the classification of an entity as an undertaking is always relative to a specific activity. An entity that carries on both economic and non-economic activities is regarded as an undertaking only with regard to the former type of activity.
An economic activity is any activity consisting of offering goods and services on a market. In this respect, the Commission considers that the characteristics and aspects referred to in paragraph 97 indicated by Italy and the 78 interested parties, which even by their own admission are not present in all cases, cannot per se exclude the economic nature of the activities involved.
As already explained, according to Article 7(2a) of Decree Law No 203/2005, as amended by Decree Law No 223/2006 (now repealed), the activities listed in Article 7(1)(i) of the ICI law could be of a commercial nature, provided that they were not exclusively commercial in nature. The Circular of 29 January 2009 had drawn up a number of criteria for each of the activities listed in Article 7(1)(i), in order to establish when each of them must be considered non-exclusively commercial in nature. If the conditions indicated in the Circular were fulfilled, the non-commercial entities were exempted from ICI, even when the activities they carried on also included economic aspects. Indeed, as already stated in the decision initiating the procedure, in the health sector the main requirement was that the non-commercial entities had concluded an agreement or a contract with the public authorities. It is clear that this condition cannot per se exclude the economic nature of the activities concerned. Similarly, as regards education, the school had to comply with teaching standards, be accessible to disabled pupils, apply collective working agreements and a non-discriminatory enrolment policy and reinvest profits in the educational activity. Again, these requirements do not exclude the economic nature of the educational activities carried on in this way. As regards cinemas, they were required to show films of cultural interest or with a quality certificate or films for children. As regards accommodation services, the requirement was that these should not be open to the public at large but to predefined categories and that the service was not provided all year round. The service supplier also had to apply prices significantly lower than market prices and the structure could not operate as a normal hotel. Once again, these conditions do not rule out the economic nature of the activities concerned.
The Commission also observes that, even if in most cases the activities are carried on in the public interest, this element alone does not per se rule out the economic nature of such activities. In any case, even if an activity has a social aim, this alone is not enough to preclude it from being classified as an economic activity. Furthermore, non-commercial entities may indeed have a reduced tax-paying capacity, but this does not imply the absence of any economic activity. This factor is of no relevance to a real estate tax that is based on the possession of real estate and takes no account of other elements of tax-paying capacity.
In the light of the above, given that the 2005 Law itself also allowed the ICI exemption for activities of a commercial nature and that the criteria laid down in the Circular and the information provided by Italy are not sufficient to rule out the economic nature of the activities performed, the Commission considers that the non-commercial entities at issue must be classified as undertakings, as far as those activities are concerned. The same holds true for the non-commercial entities under Article 149(4) TUIR, which are effectively allowed to carry on economic activities. This latter conclusion is not contested by the Italian authorities.
In the light of the above, the Commission concludes that there is no reason to depart from the position taken in the decision initiating the procedure: the scheme in question also includes economic activities. The specific features of at least some of the activities are such that the Commission can classify them as economic activities. Since the recipients of the measures in question may perform economic activities, it is therefore possible to classify them as undertakings as far as those activities are concerned.
In this section, the Commission will examine whether the ICI exemption granted to non-commercial entities, pursuant to Article 7(1)(i) of Legislative Decree No 504/92, in the version in force prior to the amendments introduced by Decree Law No 1/2012, was financed by the State or through state resources; granted a selective advantage, and was furthermore justified by the logic of the Italian taxation system; affected trade between Member States and distorted or threatened to distort competition.
The measure involved the use of state resources and involved foregoing tax revenue for the amount corresponding to the reduced tax liability.
A loss of tax revenue is effectively equivalent to consumption of state resources in the form of fiscal expenditure. By allowing entities, which could be classified as undertakings, to reduce their tax burden through exemptions, the Italian authorities were foregoing revenue to which they would have been entitled in the absence of the tax exemption.
For these reasons, the Commission finds that the measure at issue caused a loss of state resources since it provided for a tax exemption.
Therefore, since the ICI tax exemption reduced the charges normally included in the operating costs of any undertaking owning real estate in Italy, it gave the entities concerned an economic advantage in comparison with other undertakings that were not entitled to these tax advantages.
ICI was an autonomous tax, due annually to the municipalities. In its decision initiating the procedure, the Commission concluded that the reference system for assessing the ICI exemption was the municipal real estate tax itself. Neither Italy nor any of the other interested parties contested this conclusion.
The Commission therefore concludes that there is no reason to review the position taken in the decision initiating the procedure, namely that the reference system is the ICI itself.
The Commission notes that Article 7(1)(i) of Decree Law No 504/92 departed from the reference system, on the basis of which every person in possession of real estate had to pay the ICI tax, irrespective of the use made of it. As demonstrated above, the non-commercial entities in question could perform activities of a commercial nature, like any other undertaking that performed similar economic activities. In view of the objective pursued by the ICI tax system - i.e. taxation of the possession of real estate by the municipalities - non-commercial entities were therefore in a comparable legal and factual situation to the undertakings liable for ICI.
For instance, according to the conditions laid down in the Circular, cinemas that were managed by non-commercial entities on a non-exclusively commercial basis were entitled to the ICI exemption. These services, offered on the market on a structured basis and against remuneration, none the less constitute economic activities. It is undisputed that, in cases where the activities listed in Article 7(1)(i) were performed by non-commercial entities, these entities benefited from the ICI exemption for the property in which these activities were performed, provided that the minimum requirements of the Circular were met. Commercial entities did not enjoy the same tax exemption, even if they performed the same activities and met the conditions of the Circular regarding the nature of the films.
The Commission accordingly concludes that the ICI exemption under Article (1)(i), in the version in force before the amendments introduced by Decree Law No 1/2012, departed from the reference system and constituted a selective measure within the meaning of the case law.
Since the Commission considers that the tax exemption at issue is selective, it will have to determine, in accordance with the case law of the Court of Justice, whether this exemption is justified by the nature and general scheme of the system of which it forms part. A measure that departs from the application of the general tax system may be justified by the nature and general scheme of the tax system if the Member State concerned can show that the measure results directly from the basic or guiding principles of its tax system.
The Italian authorities, supported by the 78 interested parties, consider that the ICI exemption represents the application of the guiding principles of the Italian tax system. According to them, differentiated treatment of activities which have a high social value and are provided in the public interest is in keeping with the logic of the taxation system. These activities are inspired by the solidarity principle, which is a fundamental principle of both domestic and Union law. In addition, the non-commercial entities concerned share specific social functions with the State. The rationale of the ICI exemption is based on Articles 2 and 3 of the Italian Constitution, requiring fulfilment of the duties of political, economic and social solidarity towards citizens, and Article 38, which establishes the right to social welfare for people without the necessary means of subsistence.
In this regard, the Commission finds that the Italian authorities have not demonstrated that the measure at issue results directly from the basic or guiding principles of the Italian taxation system. The Articles of the Italian Constitution invoked by Italy do not actually refer to any guiding principle of the Italian tax system but merely to general principles of social solidarity.
In the light of paragraphs 122 to 127, the Commission concludes that the selective nature of the tax measure in question is not justified by the logic of the tax system. Therefore, the contested measure must be considered to grant a selective advantage to non-commercial entities performing specific activities.
The Italian authorities did not submit any comment in this respect. Some of the 78 third interested parties consider that the ICI exemption is unable to cause any significant effect on trade or distortion of competition, given the specific features of the recipients of the scheme and the way they carry on the activities giving rise to the exemption.
In the case at hand, the Commission notes that at least some of the sectors benefiting from the ICI exemption, such as accommodation and health services, were and are indeed exposed to competition and trade within the Union. With reference to the measure at issue, the Commission considers that the conditions set out in the case law are met because the measure provides an advantage in terms of financing the activities of the entities concerned, releasing those entities from costs which they would have normally borne. The measure is therefore liable to distort competition.
Therefore, the Commission concludes that the measure at issue is liable to affect trade between Member States and distort competition within the meaning of Article 107(1) of the Treaty.
In the light of the above, the Commission concludes that the measure at issue fulfils all the conditions laid down in Article 107(1) of the Treaty and should thus be regarded as state aid.
In the decision initiating the procedure, the Commission considered that the ICI exemption under Article 7(1)(i) of Legislative Decree No 504/92 constituted new aid. The ICI tax, an annual tax paid to the municipalities, was introduced in 1992. It was not notified to the Commission or approved by the Commission. The exemption applied to a wide range of activities which were open to competition at the time of its introduction.
Italy submits that the approach taken by the Commission in the decision initiating the procedure is incorrect and that, if the ICI exemption were considered to be aid, it should be classified as existing aid. Italy maintains that ICI represents the logical legislative progression from the earlier property taxes, with which it provides formal and material continuity. Exempting real estate used for specific activities with a high social value has been a fundamental component of all taxes on real estate introduced since 1931, well before the entry into force of the EEC Treaty.
The Italian authorities also argue that the Commission’s replies to the complainants concerning the ICI exemption, of which Italy was informally notified, had created a legitimate expectation on the part of non-commercial entities as to the compatibility of the ICI exemption with Union law.
Italy presented a detailed description of the real estate taxes that were in force before ICI. In 1931, Italy introduced the specific and general improvement taxes in the Single Act on Local Finance. Subsequently, in 1963, a tax on the appreciation of building areas was introduced by Law No 246 of 5 March 1963. Finally, the tax on the appreciation of immovable property (the so-called INVIM) was introduced by Presidential Decree No 643 of 26 October 1972. The appreciation in the value of immovable property was taken into account when calculating the specific and general improvement taxes. Similarly, the 1963 tax also targeted the capital gain of building areas. This capital gain was also taxed at the time of transfer of the properties by inter vivos deeds and, in general, at the end of every ten years of possession of the real estate. INVIM, introduced in 1972, replaced both the 1931 and the 1963 taxes. Under the INVIM law, the taxable persons were the transferor for consideration or the transferee without charge and, in each case, the tax was due every ten years. INVIM was abolished with the introduction of ICI. According to Italy, this analysis demonstrates the close continuity between the various real estate tax instruments used since 1931. Italy also notes that the rules on real estate tax exemptions have always taken into account the type of activity carried on by the entities that were entitled to the exemption. The fact that the categories of exempted recipients have increased over the years is simply due to the fact that the range of entities pursuing social interest activities has broadened.
As regards the alleged authorisation of the ICI measure, the Commission notes that the aid in question was never authorized by the Commission or the Council. If this had been the case, the aid would be considered existing aid, according to Article 1(b)(ii) of Regulation (EC) No 659/1999. However, the letters containing the Commission’s preliminary assessment, which were sent to the complainants in the context of the administrative proceedings prior to the decision initiating the procedure, cannot be equated to Commission decisions. Indeed, a measure can be considered existing aid under Article 1(b)(ii) only if the aid has already been approved by an express decision of the Commission or the Council. In any event, the letter sent to the complainants on 15 February 2010 was challenged by two complainants before the General Court and did not become final; these Court actions were withdrawn only after the decision initiating the procedure. The Commission accordingly concludes that, in the absence of any Commission or Council decision, Article 1(b)(ii) of Regulation (EC) No 659/1999 does not apply. Therefore, the aid at issue cannot be considered existing aid - on the contrary, it constitutes new aid.
In the decision initiating the procedure, the Commission considered that the aid scheme in question did not qualify for any of the exemptions laid down in Article 107(2) and (3) of the Treaty and that the Italian authorities had not demonstrated that the aid could be declared compatible under Article 106(2) of the Treaty.
In the course of the procedure, the Italian authorities did not present any argument to indicate that the exceptions provided for in Article 107(2) and (3) and in Article 106(2) can apply to the scheme at issue. Some of the 78 interested parties considered that the scheme was compatible under Article 106(2) and Article 107(3)(c). In their view, the exemption was necessary for activities carried out in the public interest based on the solidarity principle. The two complainants consider that none of the exceptions laid down in the Treaty is applicable.
The Commission considers that the exceptions provided for in Article 107(2), which concern aid of a social character granted to individual consumers, aid to make good the damage caused by natural disasters or exceptional occurrences and aid granted to certain areas of the Federal Republic of Germany, do not apply in this case.
The same holds for the exception provided for in Article 107(3)(a), which authorises aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious unemployment, and of the regions referred to in Article 349, in view of their structural, economic and social situation. Nor can the measure in question be considered to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of Italy, as provided for by Article 107(3)(b).
According to Article 107(3)(c), aid to facilitate the development of certain economic activities may be considered compatible where it does not adversely affect trading conditions to an extent contrary to the common interest. However, the Commission did not receive any factual information enabling it to assess whether the tax exemption granted by the measure under examination was related to specific investments or projects eligible to receive aid under the EU rules and guidelines, or otherwise directly compatible with Article 107(3)(c). Therefore, the Commission cannot agree with the position of the third parties that claim the compatibility of the measure under Article 107(3)(c) on the basis of the need to allow non-commercial entities to carry out activities based on the solidarity principle and with a high social function. In particular, in view of the nature of the advantage, which is simply linked to the level of tax liability for the possession of real estate, it is not possible to establish that it is necessary and proportionate to attain an objective of common interest in all individual cases. Consequently, the Commission considers that the measure concerned cannot be considered compatible under any of the guidelines based on Article 107(3)(c).
Finally, in the decision initiating the procedure, the Commission did not rule out that some of the activities benefiting from the measure in question could be classified under Italian law as services of general economic interest, in line with Article 106(2) of the Treaty and the Altmark case law. Some of the interested parties considered that the Commission should assess the measure under Article 106(2) but did not provide any relevant information for the analysis. The two parties consider that the measure does not fulfil the criteria of the Altmark case law. However, given that neither Italy nor the interested parties provided any information enabling the Commission to assess the measure under Article 106(2), the Commission concludes that it is not possible to establish if any of the activities at issue could be classified as services of general economic interest under that Article. Once again, it is not possible to establish whether, in each individual case, the aid is necessary and proportionate to cover the costs incurred in the discharge of public service obligations or in the performance of services of general economic interest.
In the light of the above, the Commission concludes that the aid scheme in question is incompatible with the internal market.
In the decision initiating the procedure, the Commission considered that the measure in question appeared to constitute state aid. In the following section, the Commission will examine whether Article 149(4) TUIR constitutes state aid within the meaning of Article 107(1) of the Treaty.
The Italian authorities emphasised that the measure is aimed at preserving the exclusive competence enjoyed by CONI (the Italian National Olympic Committee) for amateur sports clubs and by the Interior Ministry for ecclesiastical institutions.
Italy also explained that if the tax authorities find out that ecclesiastical institutions and amateur sports clubs perform primarily commercial activities, they immediately inform the Interior Ministry or the CONI. The Interior Ministry and CONI carry out their own checks, according to the statutory powers assigned to them. In parallel, the tax authorities ensure that the tax declaration of the non-commercial entity concerned is corrected and order the recovery of the difference in taxation.
In the light of the above, the Commission considers that the legal instruments exist to ensure that abuse of the non-commercial status of ecclesiastical institutions and amateur sports clubs is effectively prevented or suppressed. The Italian authorities have also demonstrated that the competent authorities do exercise their powers of control and that both ecclesiastical institutions and amateur sports clubs can lose their non-commercial status if they carry out primarily economic activities. Therefore, ecclesiastical institutions and amateur sports clubs can lose their entitlement to the tax treatment granted to non-commercial entities in general. Consequently, there is no system of ‘perpetual non-commercial status’, as alleged by the complainants. The mere fact that specific procedures apply to the checks on the ecclesiastical institutions with civil-law status and amateur sports clubs in question does not involve an advantage.
The Commission therefore concludes that Article 149(4) TUIR does not confer any selective advantage on ecclesiastical institutions or amateur sports clubs. Hence the measure does not constitute state aid within the meaning of Article 107(1) of the Treaty.
Following the introduction of IMU - the new municipal real estate tax replacing ICI – at the request of the Italian authorities and in the light of the complainants’ comments on this new law, the Commission agreed to establish whether the new IMU exemption regarding non-commercial entities performing specific activities complies with the state aid rules. The Commission will accordingly assess whether the IMU exemption in question constitutes state aid within the meaning of Article 107(1).
The Commission notes that, from the date of entry into force of Decree Law No 1/2012, converted into Law No 27/2012, the exemption under Article 7(1)(i) of Legislative Decree No 504/92 applies to the real estate owned by non-commercial entities only if the activities listed there are carried on on a non-commercial basis. The provisions concerning the ‘mixed use’ of buildings, both in the case where parts of the buildings are autonomous in terms of function and revenue and where it is necessary to have a declaration by the entities concerned, will apply as of 1 January 2013.
The Commission considers that the new rules spell out that the exemption can be guaranteed only if commercial activities are not carried on. Therefore, the hybrid situations which the ICI legislation had created, where commercial activities were carried on in some buildings that were entitled to a tax exemption, will no longer be possible.
In general terms, the interpretation of the notion of economic activity depends, inter alia, on the specific circumstances, the way the activity is organised by the State, and the context in which it is organised. In order to establish the non-economic nature of an activity pursuant to Union case law, it is necessary to examine the nature, the aim and the rules that govern this activity. The fact that some activities can be classified as ‘social’ is not in itself sufficient to exclude their economic nature. However, the Court of Justice has also recognised that certain activities with a purely social function may be considered non-economic, especially in sectors closely related to the basic tasks and responsibilities of the State.
None the less, as regards IMU, the Commission considers it essential first to establish whether the criteria laid down in Italian legislation to exclude the commercial nature of the activities entitled to the IMU exemption are in line with the notion of non-economic activity under Union law.
In this respect, as illustrated above in paragraphs 82 et seq., the Italian authorities recently approved the implementing legislation provided for by Article 91a(3) of Decree Law No 1/2012. The Regulation of the Ministry of Economic Affairs and Finance of 19 November 2012 sets out the general and specific requirements needed to establish when the activities listed in Article 7(1)(i) of Legislative Decree No 504/92 are performed on a non-commercial basis.
Second, Article 3 of the Regulation defines the general subjective requirements which must be included in the articles of association or statutes of non-commercial entities so that their activities are carried on on a non-commercial basis The criteria are as follows: (a) ban on distributing, even indirectly, any profits, operating surplus, funds, reserves or capital during the life of the entity, unless it is imposed by law or is in favour of entities that belong to the same structure and that perform the same activity; (b) any profit and surplus must be reinvested exclusively in developing activities that contribute to the institutional aim of social solidarity; and (c) if the non-commercial entity is wound up, its assets must be attributed to another non-commercial entity that performs a similar activity, unless otherwise provided by law.
Third, Article 4 of the Regulation identifies additional objective requirements that must be met, together with the conditions indicated in Articles 1 and 3, in order for the activities listed in Article 7(1)(i) of the ICI law to be deemed to be carried on on a non-commercial basis.
In particular, as regards welfare and health care activities, the Regulation states that these are carried on on a non-commercial basis if at least one of the following conditions is met: (a) the activities are accredited by the State and are performed under either a contract or an agreement with the State, the Regions or local authorities and they are part of or complementary to the public national health system and provide services to users free of charge or for an amount that is only a contribution to the cost of the universal service provision; (b) if the activities are not accredited and performed under a contract or an agreement, they must be provided free of charge or for a symbolic fee which, in any event, must not exceed half the average price for similar activities in the same geographical area on a competitive basis, also taking into account the absence of any connection with the actual cost of the service.
As regards the second condition, the Regulation states that the activities must be performed either free of charge or for a symbolic fee. Services provided free of charge do not generally constitute an economic activity. In particular, this is the case if the services are not offered in competition with other market operators, as laid down in Article 1 of the Regulation. The same holds true for services that are provided for a symbolic fee. In this respect, it is important to note that the Regulation stipulates that, for the fee to be considered symbolic, it must bear no relationship to the cost of the service. The Regulation also states that the limit set of half the average price charged for similar activities performed on a competitive basis in the same geographical area can be used only to exclude entitlement to the exemption (as indicated by the words ‘in any event’). It does not, however, imply that service providers which charge a price below that limit are entitled to the exemption. Therefore, given that the assistance and health care activities also meet the general and subjective requirements indicated in Articles 1 and 3 of the Regulation, the Commission concludes that such activities, performed in line with the principles of the current legislation, do not constitute economic activities.
In respect of accommodation services, cultural and recreational activities and sports activities, Article 4 of the Regulation states that they must be provided either free of charge or for a symbolic fee which, in any event, must not exceed half the average price charged for similar activities performed on a competitive basis in the same geographical area, also taking into account the absence of any connection with the actual cost of the service. This requirement is identical to the second condition laid down for assistance and health care activities, examined in paragraph 171 above, hence the same considerations apply. If the services are provided free of charge, in principle they do not constitute an economic activity. The same holds true if they are provided for a symbolic fee. In this respect, it is important to note that the Regulation stipulates that, for the fee to be considered symbolic, it must bear no relationship to the cost of the service. It also states that the limit set of half the average price charged for similar activities performed on a competitive basis in the same geographical area can be used only to exclude entitlement to the exemption (as indicated by the words ‘in any event’). It does not, however, imply that service providers which charge a price below that limit are entitled to the exemption.
Therefore, given the specific circumstances of the present case and given that the non-commercial entities offering accommodation services, cultural, recreational and sports activities must also fulfil the requirements of Articles 1 and 3 of the Regulation, the Commission concludes that these activities, performed as described by the law, are not considered economic activities.
The Commission therefore concludes that, on the basis of the information submitted by the Italian authorities, in the light of the specific and particular features of the present case, the activities analysed in the preceding paragraphs, performed by non-commercial entities in full compliance with the general, subjective and objective criteria laid down in Articles 1, 3 and 4 of the Regulation, are not of an economic nature. Therefore, the non-commercial entities concerned, when performing those activities in full compliance with the conditions laid down by the Italian legislation are not acting as undertakings for the purposes of Union law. Given that Article 107(1) of the Treaty applies only to undertakings, it follows that in the case in question the measure does not fall within the scope of that Article.
Finally, the Commission notes that, from 1 January 2013, in the case of hybrid use of a building, it is possible under the Italian legislation to calculate the pro-rata commercial use of the real estate and to impose IMU on economic activities only. The Commission points out in this context that, if an entity performs both economic and non-economic activities, the partial exemption that it enjoys for the part of the real estate used for non-economic activities does not represent an advantage for that entity when it performs an economic activity as an undertaking. Therefore, the measure does not constitute state aid within the meaning of Article 107(1) in this type of situation either.
Thus, once the ICI exemption measure is considered unlawful and incompatible aid, it must in principle be recovered in order to re-establish the situation that existed on the market prior to the granting of the aid.
Since these exceptions were raised by the Italian authorities in the context of the formal investigation, the Commission must examine whether they apply to the present case in order to determine if recovery is required.
The case law of the Court of Justice and the Commission's own decision-making practice have established that an order to recover aid would infringe a general principle of Union law if, as a result of the Commission's actions, a legitimate expectation exists on the part of the recipient of a measure that the aid has been granted in accordance with Union law.
The Commission maintains that this reply did not given rise to any legitimate expectation, for the following reasons.
First, the Commission’s statement was merely the result of a ‘preliminary assessment’; the Commission did not state that it had taken a decision, but only that it considered that there was no ground to proceed further. Second, the Commission indicated tentatively that it appeared that the ICI exemption was not likely to confer any advantage on ecclesiastical institutions. Third, the question and the reply referred only to ecclesiastical institutions, which are a subcategory of the non-commercial entities concerned by the ICI exemption.
In the light of the above, the Commission considers that it did not provide specific, unconditional and consistent assurances of a nature such that the recipients of the measure at issue entertained justified expectations that the scheme was lawful, in the sense that it did not fall within the scope of the state aid rules, and that consequently any advantage derived from it could not be subject to recovery proceedings. In conclusion, the Commission considers that it did not make any precise and unconditional statement to the effect that the ICI exemption at issue should not be considered state aid.
Italy has also argued that the replies given by the Commission to the complainants on the ICI exemption, about which Italy was informally told, created a legitimate expectation on the part of the non-commercial entities as regards the compatibility of the ICI exemption with Union law. The Commission does not agree with the views expressed by Italy. Preliminary assessment letters sent by the Commission to the complainants, of which the Member State was only unofficially informed, do not constitute the Commission’s final position. Whereas Commission decisions are made public and published in the Official Journal, this is not the case in a simple administrative procedure where - on the basis of the facts available - the Commission does not harbour serious doubts about the compatibility of the measures examined. Moreover, the letter sent to the complainants on 15 February 2010 was challenged by two complainants before the General Court and did not become final; these Court actions were withdrawn only subsequent to the decision initiating the procedure.
The Commission therefore concludes that, in the present case, Italy and the 78 interested parties were not given any assurance by any institution of the Union which could justify legitimate expectation and therefore prevent the Commission from ordering recovery.
Under Article 288 of the Treaty, the Member State to which a recovery decision is addressed is obliged to execute the decision. As indicated above, there is one exception to this obligation, namely where the Member States demonstrates the existence of exceptional circumstances that would make it absolutely impossible to execute the decision properly.
In the case at hand, the Italian authorities have argued that it would be absolutely impossible to define which real estate, belonging to non-commercial entities, was used for activities that were not of an exclusively commercial nature and to retrieve the information needed to determine the amount of tax that should have been paid.
The Italian authorities explained that, because of the way the cadastre is structured, it is impossible to extrapolate retroactively from the cadastral databases the data concerning real estate belonging to non-commercial entities which was used for activities of a non-exclusively commercial nature of the type indicated in the ICI exemption. It is not possible to trace activities carried on in the real estate from the information contained in the cadastre. In other words, on the basis of the data in the cadastre, it is not possible to work out if, in a given property, an entity carried on either commercial or non-commercial activities. In fact, each single property (including portions of real estate with a separate classification) is registered in the cadastre only on the basis of its objective characteristics, which take into account physical and structural elements linked to its intended use.
As regards tax databases, and in particular records of the tax declarations of non-commercial entities, Italy explained that it was possible to identify from them only the real estate used exclusively on a non-commercial basis. In this case, the buildings that produce revenue must be indicated in the standard tax declaration under Section RB on building revenue, whereas Section RS on mixed costs and receipts does not have to be filled in. On the other hand, if a non-commercial entity owns real estate in which commercial activities are also carried on, then both Sections RB and RS have to be filled in. However, if more than one building is indicated under Section RB, it is not possible to identify the real estate in which the activity that generated the revenue indicated in the tax declaration was carried on. In any case, it should be noted that Section RS of the standard form includes aggregate cost and revenue data concerning goods and services used for both commercial and non-commercial purposes (goods and services used arbitrarily for commercial activities and other activities). However, even when a single building is indicated under Section RB, because of the way the cadastral system is structured it is not possible to obtain a breakdown based on commercial/non-commercial uses of a building and therefore it is not possible to identify what portion of the building was used for the economic activity that generated the revenue stated in the tax declaration.
Consequently, the Commission considers that the Italian authorities have demonstrated that the recipients of the aid cannot be identified and the aid itself cannot be objectively calculated due to the lack of available data. Basically, it is not possible to identify from the tax and cadastral databases the real estate belonging to non-commercial entities, which was used for non-exclusively commercial activities of the type indicated in the ICI exemption provisions. Consequently it is not possible to obtain the necessary information to calculate the amount of tax to be recovered. Therefore, enforcing a possible recovery order would be impossible in objective and absolute terms.
In conclusion, the Commission finds that, given the specific nature of this case, it would be absolutely impossible for Italy to recover any aid illegally granted under the ICI exemption provisions. Recovery of the aid arising from the unlawful and incompatible exemption from this municipal tax on real estate should therefore not be ordered.
The Commission finds that Italy has unlawfully implemented the exemption from the municipal tax on real estate under Article 7(1)(i) of Legislative Decree No 504/92 in breach of Article 108(3) of the Treaty.
Since no grounds of compatibility can be identified for the scheme in question, it is found to be incompatible with the internal market. However, in the light of the exceptional circumstances invoked by Italy, recovery of the aid should not be ordered since Italy has demonstrated that it would be absolutely impossible to enforce.
The Commission considers that Article 149(4) TUIR does not constitute state aid within the meaning of Article 107(1) of the Treaty.
Finally, in view of the specific nature of the IMU exemption measure for non-commercial entities that carry on exclusively specific non-commercial activities, in accordance with the conditions laid down by the Italian legislation, the Commission finds that these activities cannot be considered economic activities for the purposes of the state aid rules and that therefore the measure does not fall within the scope of Article 107(1),
HAS ADOPTED THIS DECISION:
Article 1
The state aid in the form of the ICI exemption, granted to non-commercial entities which carry on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92, unlawfully put into effect by Italy in breach of Article 108(3) of the Treaty, is incompatible with the internal market.
Article 2
Article 149(4) TUIR does not constitute state aid within the meaning of Article 107(1) of the Treaty.
Article 3
The IMU exemption, granted to non-commercial entities which carry on in the real estate exclusively the activities listed in Article 7(1)(i) of Legislative Decree No 504/92, does not constitute state aid within the meaning of Article 107(1) of the Treaty.
Article 4
This Decision is addressed to the Republic of Italy.
Done at Brussels, 19 December 2012.
For the Commission
Joaquín Almunia
Vice-President
ANNEX 1LIST OF THE INTERESTED THIRD PARTIES THAT SUBMITTED COMMENTS ON THE DECISION INITIATING THE PROCEDURE
Name/Address
- 1.
Santa Maria Annunciata in Chiesa Rossa, Via Neera 24, Milano, Italia
- 2.
Fondazione Pro-Familia, Piazza Fontana 2, Milano, Italia
- 3.
Pietro Farracci, San Cesareo, Italia
- 4.
Scuola Elementare Maria Montessori s.r.l., Roma, Italia
- 5.
Parrocchia S. Luca Evangelista, Via Negarville 14, Torino, Italia
- 6.
Parrocchia S. Nicolò di Bari, Piazza Principe Napoli 3, Tortorici (Messina), Italia
- 7.
Parrocchia S. Nicolò di Bari, Via Libertà 30, Caronia (Messina), Italia
- 8.
Parrocchia S. Nicolò di Bari, Piazza Matrice, S. Stefano di Camastra (Messina), Italia
- 9.
Parrocchia S. Orsola, Contrada S. Orsola, S. Angelo di Brolo (Messina), Italia
- 10.
Parrocchia Sacro Cuore di Gesù, Frazione Galbato, Gioiosa Marea (Messina), Italia
- 11.
Parrocchia Sacro Cuore di Gesù, Corso Matteotti 51, Patti (Messina), Italia
- 12.
Parrocchia Sacro Cuore di Gesù, Via Medici 411, S. Agata Militello (Messina), Italia
- 13.
Istituto Sacro Cuore di Gesù, Via Medici 411, S. Agata Militello (Messina), Italia
- 14.
Parrocchia Santi Nicolò e Giacomo, Discesa Sepolcri, Capizzi (Messina), Italia
- 15.
Istituto Diocesano Sostentamento Clero, Via Cattedrale 7, Patti (Messina), Italia
- 16.
Parrocchia Madonna del Buon Consiglio e S. Barbara, Con. Cresta, Naso (Messina), Italia
- 17.
Parrocchia Maria SS. Annunziata, Frazione Marina, Marina di Caronia (Messina), Italia
- 18.
Parrocchia Maria SS. Assunta, Via Battisti, Militello Rosmarino (Messina), Italia
- 19.
Parrocchia Maria SS. Assunta, Via Monte di Pietà 131, Cesarò (Messina), Italia
- 20.
Parrocchia Maria SS. Assunta, Piazza S. Pantaleone, Alcara Li Fusi (Messina), Italia
- 21.
Parrocchia Maria SS. Assunta, Via Oberdan 6, Castell'Umberto (Messina), Italia
- 22.
Parrocchia Maria SS. Assunta, Piazza Duomo, Tortorici (Messina), Italia
- 23.
Parrocchia Maria SS. Assunta, Via Roma 33, Mirto (Messina), Italia
- 24.
Parrocchia Maria SS. Del Rosario, Contrada Scala, Patti (Messina), Italia
- 25.
Parrocchia Maria SS. Della Scala, Contrada Sceti, Tortorici (Messina), Italia
- 26.
Parrocchia Maria SS. Della Visitazione, Contrada Casale, Gioiosa Marea (Messina), Italia
- 27.
Parrocchia Maria SS. Delle Grazie, Via Campanile 3, Montagnareale (Messina), Italia
- 28.
Parrocchia Maria SS. Delle Grazie, Via Cappellini 2, Castel di Lucio (Messina), Italia
- 29.
Parrocchia Maria SS. Annunziata, Piazza Regina Adelasia 1, Frazzanò (Messina), Italia
- 30.
Parrocchia Maria SS. Annunziata, Contrada Sfaranda, Castell'Umberto (Messina), Italia
- 31.
Parrocchia Maria SS. Di Lourdes, Frazione Gliaca, Piraino (Messina), Italia
- 32.
Parrocchia S. Giuseppe, Contrada Malvicino, Capo d'Orlando (Messina), Italia
- 33.
Parrocchia s. Maria del Carmelo, Piazza Duomo 20, S. Agata Militello (Messina), Italia
- 34.
Parrocchia S. Maria di Gesù, Via Giovanni XXIII 43, Raccuja (Messina), Italia
- 35.
Parrocchia S. Maria Maddalena, Contrada Maddalena, Gioiosa Marea (Messina), Italia
- 36.
Parrocchia S. Maria, Via S. Maria, San Angelo di Brolo (Messina), Italia
- 37.
Parrocchia S. Michele Arcangelo, Via San Michele 5, Patti (Messina), Italia
- 38.
Parrocchia S. Michele Arcangelo, Via Roma, Sinagra (Messina), Italia
- 39.
Parrocchia S. Antonio, Via Forno Basso, Capo d'Orlando (Messina), Italia
- 40.
Parrocchia S. Caterina, Frazione Marina, Marina di Patti (Messina), Italia
- 41.
Parrocchia Cattedrale S. Bartolomeo, Via Cattedrale, Patti (Messina), Italia
- 42.
Parrocchia Maria SS. Addolorata, Contrada Torre, Tortorici (Messina), Italia
- 43.
Parrocchia S. Nicolò di Bari, Via Risorgimento, San Marco d'Alunzio (Messina), Italia
- 44.
Parrocchia Immacolata Concezione, Frazione Landro, Gioiosa Marea (Messina), Italia
- 45.
Parrocchia Maria SS Assunta, Piazza Mazzini 11, Tusa (Messina), Italia
- 46.
Parrocchia Maria SS Assunta, Frazione Torremuzza, Motta d'Affermo (Messina), Italia
- 47.
Parrocchia Maria SS Assunta, Salita Madre Chiesa, Ficarra (Messina), Italia
- 48.
Parrocchia Maria SS. Della Catena, Via Madonna d. Catena 10, Castel di Tusa (Messina), Italia
- 49.
Parrocchia Maria SS. Delle Grazie, Via N. Donna 2, Pettineo (Messina), Italia
- 50.
Parrocchia Ognissanti, Frazione Mongiove, Mongiove di Patti (Messina), Italia
- 51.
Parrocchia S. Anna, Via Umberto 155, Floresta (Messina), Italia
- 52.
Parrocchia S. Caterina, Vico S. Caterina 2, Mistretta (Messina), Italia
- 53.
Parrocchia S. Giorgio Martire, Frazione S. Giorgio, San Giorgio di Gioiosa M. (Messina), Italia
- 54.
Parrocchia S. Giovanni Battista, Frazione Martini, Sinagra (Messina), Italia
- 55.
Parrocchia S. Lucia, Via G. Rossini, S. Agata Militello (Messina), Italia
- 56.
Parrocchia S. Maria delle Grazie, Via Normanni, S. Fratello (Messina), Italia
- 57.
Parrocchia S. Maria, Piazzetta Matrice 8, Piraino (Messina), Italia
- 58.
Parrocchia S. Michele Arcangelo, Piazza Chiesa Madre, Librizzi (Messina), Italia
- 59.
Parrocchia S. Michele Arcangelo, Via Umberto I, Longi (Messina), Italia
- 60.
Parrocchia S. Nicolò di Bari, Piazza S. Nicola, Patti (Messina), Italia
- 61.
Parrocchia S. Nicolò di Bari, Via Ruggero Settimo 10, Gioiosa Marea (Messina), Italia
- 62.
Parrocchia S. Nicolò di Bari, Via S. Nicolò, S. Fratello (Messina), Italia
- 63.
Parrocchia Santa Maria e San Pancrazio, Via Gorgone, S. Piero Patti (Messina), Italia
- 64.
Parrocchia Maria SS Assunta, Piazza Convento, S. Fratello (Messina), Italia
- 65.
Parrocchia Maria SS. Del Rosario, Via Provinciale 7, Caprileone (Messina), Italia
- 66.
Parrocchia Maria SS Assunta, Via Monachelle 10, Caprileone (Messina), Italia
- 67.
Parrocchia Maria SS del Tindari, Via Nazionale, Caprileone (Messina), Italia
- 68.
Parrocchia S. Febronia, Contrada Case Nuove, Patti (Messina), Italia
- 69.
Parrocchia Maria SS. della Stella, Contrada S. Maria Lo Piano, S. Angelo di Brolo (Messina), Italia
- 70.
Parrocchia S. Erasmo, Piazza del Popolo, Reitano (Messina), Italia
- 71.
Parrocchia Maria SS. della Catena, Via Roma, Naso (Messina), Italia
- 72.
Parrocchia S. Benedetto il Moro, Piazza Libertà, Acquedolci (Messina), Italia
- 73.
Parrocchia S. Giuseppe, Frazione Tindari, Tindari (Messina), Italia
- 74.
Parrocchia Santi Filippo e Giacomo, Via D. Oliveri 2, Naso (Messina), Italia
- 75.
Parrocchia SS. Salvatore, Via Cavour 7, Naso (Messina), Italia
- 76.
Santuario Maria SS del Tindari, Via Mons. Pullano, Tindari (Messina), Italia
- 77.
Parrocchia S. Maria Assunta, Via Roma, Galati Mamertino (Messina), Italia
- 78.
Fondazione Opera Immacolata Concezione O.N.L.U.S., Padova, Italia
- 79.
Parrocchia San Giuseppe, Piazza Dante 11, Oliveri (Messina), Italia
- 80.
Parrocchia S. Leonardo, Frazione San Leonardo, Gioiosa Marea (Messina), Italia