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The ANCIP explains to the EU commission because port the Italian authorities do not have to be subjected to the income tax of the societies
The association clarifies because the exemption does not grant to the harbour agencies some selective advantage
February 13, 2020
The National Association Companies Harbour Enterprises (ANCIP) has sent to the EU commission own observations with respect to the procedure adopted from this last one in order to ask Italy to abolish the enforced exemption for the Italian Authorities of Harbour System from the income tax of the societies, than according to Brussels it would constitute an aid of incompatible State with the norms EU. In the document sent to the EU commission, that we bring back below, the ANCIP explains because the regime of taxation of the AdSP in the Italian ordering does not grant they some selective advantage neither re-enters in the application field of the articles. 107 and ss. TFUE.
National association Companies Harbour Enterprises
To the EU commission
Head office of the Competition
and p.c.:
Al MINISTRY OF TRANSPORTATION
to the On.le ministra P.DE MICHELI
Al MINISTRY OF TRANSPORTATION
to the Dr. To. STANCANELLI
Office of Cabinet
Object: Aids of State SA.38399 (2018/E) - Taxation of the Ports in Italy
The ANCIP, National Association Companies Harbour Enterprises, that it organizes n.60 enterprises in the Italian ports intends to take part on the decision to start the procedure of which to the art.108, paragraph 2, of the treaty on the operation of the European Union relatively to the measure of which to the object with which one wonders Italy to adopt opportune measures apt to abolish the enforced exemption from the tax on the societies for the last ports considering these subduable ones to the same regime of tax on the societies that it is applied to the private companies.
We consider useful to evidence our position with respect to how much having from the procedure started on the topic in object.
The decision of the Commission to propose opportune measures apt to abolish the enforced exemption for the Italian ports of the tax on the societies appears, to our warning, founded on wrong and not contestualizzati foundations:
1. With the decision of 8 January 2019 adopted in the proceedings SA.38399 (the "Decision"), the Commission has concluded that the exemption for the Authorities of Harbour System (AdSP) from the income tax of the societies of which to the articles. 72 and ss. of the TUIR it according to constitutes an aid of incompatible State of art. 107(1) the TFUE. According to the Decision, the differentiated fiscal treatment between the AdSP (than is not subjected to the income tax operating of the societies) and the other enterprises in Italy (than instead they are subjected) constitutes a selective advantage in favor of first, than it cannot be justified from the nature and logic of the Italian fiscal system applicable to the societies. Such fiscal treatment facilitated threat moreover to forge the competition and to affect the commerce inside of the Union.
2. The Decision appears in the exceptionable merit under multiple profiles: the regime of taxation of the AdSP in the Italian ordering does not grant they some selective advantage neither re-enters in the application field of the articles. 107 and ss. TFUE.
1. Nature of the AdSP and the carried out activities.
3. The Decision asserts that the AdSP would be enterprises according to art. the 107 TFUE on the base of a formal element and a substantial one: (a) the fact that the AdSP are of "public property" would not be sufficient in order to conclude that they are not enterprises1; (b) the Italian law would not preclude to the AdSP lend some services of economic nature eg. (fuel pilotage, mooring, towing, refueling and collection of refusals2) and, in any case, "also the concession of the access to the ports behind payment of harbour canons" would have economic nature3.
4. How much to (a), the Decision is erroneous since it does not value the fact that the AdSP are not only of "public property" (as eg. limited company whose vital he is at the moment stopped from subjects publics) but real not economic public bodies for which the passage under private control (to the pairs of the Regions is not even hypothetical, the Municipalities, etc.), and to which the development of every economic activity included the performance of harbour services is precluded by the law.
4 "art. the 16, codicil 3, of law 84/1994 do not exclude that the AdSP carry out activity of pilotage, fuel refueling, mooring, towing and collection of refusals, which anticipate an economic character unquestionably" (cfr. Decision § 43).
5. As for (b), the Decision is of the pairs erroneous, as the AdSP does not lend the services mentioned from the Commission. With regard to the technical-nautical services, in addition to the callback of which to the art. 14-second l.n. 84/1994, the discipline for the confidence by the Marine Authorities of such services to the competent corporations is found in the navigation code and the implementing regulations. The Commission has not taken in consideration such norms, limiting own analysis art. to the 16 l.n. 84/19944, and concluding erroneously that such services are lend by the AdSP. Cited other asset (eg. bunkeraggio and collection refusals), is services re-entering in the category of which to art. 6(4) the (c) l. n. 84/1994 of the "services of general interest, not coinciding neither closely connected to the harbour operations", with regard to the whose supply the art. 6(10) l. n. 84/1994 establish the confidence to enterprises third "by means of procedure of evidence public, second previewed how much from I decree legislative 18 April 2016, n. 50". Also such services therefore are not carried out by the AdSP.
5 "when the AdSP supply they same "harbour services", that explicitly it is not excluded by law 84/1994, they can be in competition with other suppliers of such services that operate on the market" (cfr. Decision § 66).
6. The erroneous conclusion moreover is used by the Decision which presupposed in order to support that the AdSP are in competition with other suppliers of harbour services and therefore in order to argue the existence of a market on which the tax exemption in favour of the AdSP own effects esplicherebbe distorted5to you. Such conclusion appears therefore vitiated.
6 Cfr. articles. 28 cod. nav. and 822 cod. civ. let alone art. 29 cod. nav. 7 Cfr. I decree on July 19, 1989 Ministerial, new criteria for the determination of the canons for the marine state property concessions, in Gazz. Ho. on December 23, 1989 n. 299, whose amounts from year to year are renewed by the competent Ministry.
7. According to the Commission, although they act according to the model c.d. "landlord", the AdSP "rent lands and infrastructures of harbour base to private users against the payment of canons. Draft of an equatable economic activity to the rent of a good any against payment". Besides not to be owners of the assets demaniali6 (limiting itself to on behalf administer them of the State owner and in the public interest), the AdSP assign the Federal property with various modalities from those of a private lessor. In the first place, the AdSP do not determine the amount of the tax (i.e the state property canon) that they on behalf collect from the concessionary enterprises of the State owner; the canon in fact is predetermined by the second legislator uniform criteria to level nazionale7, concerning on the extension of the state property compendium temporary consented, let alone on the presence or less than manufactured products on the areas of which be a matter yourself.
8 It is in fact the law to dictate the fundamental criteria for the choice of the concessionaire, that they are characterized by art. the 37 cod. nav. in the “more profitable use of the Federal property” and in I use it of this last one answering to “a more important public interest”, in a context in which the AdSP it has already planned the specific activities or destinations of the Federal property, so characterizing law requirement ulteriorly
8. The AdSP do not assign therefore the assets to the concessionary aspirants who introduce higher perspectives of profit for the same Administration (as higher fees for the occupation of the state property areas object of request), but to those most suitable ones to maximize the usefullness and the valorization of the harbour areas, to protection of the public interest that the AdSP must safeguard in ossequio to own institutional tasks8.
9 Cfr. Court giust. 17 February 1993, C-159/91 and C-160/91, Poucet c. AGF and Camulrac and Pistre c. Cancava, § 18. 10 Cfr. C-82/01 P, Aéroports de Paris, § 78, where the Court has confirmed that “the put on one of the airlines and the several lenders of services constitutes an activity of economic nature, against the payment of a canon whose rate is fixed liberations from [the public body], of airport installations”
9. According to the jurisprudence, economic activity is not had if the concrete modalities of offer of determined assets or services are established directly by the law and, therefore, is not based on appraisals of economic character by offering subject9. The presence of directly fixed a commercial canon from the enterprise that manages the infrastructure is therefore necessary condition to the aims of its qualification as enterprise10.
10. In truth, the harbour agencies of the Member States (and that is Belgium, France and Countries Low) addressees of recent decisions of the Commission in matter of taxation of the “ports” not only manage the ports (often possessing the relative areas) but at the same time they are active enterprises in the performance of harbour services behind emolument, offering on the market services to the shipowners and the loaders as for example the pilotage, the raising, handling and the mooring against a fee. Moreover, such “harbour agencies” do not apply canons predetermined from the law but they negotiate with the enterprises interested to the infrastructure the level of the fee for the access to the areas of the port. In such Member States, the “harbour authorities” can therefore vary the amount of the “canons” based on market appraisals; and for example in order to stimulate the shipowners and the loaders to use infrastructures of the port and the enterprises to insediarvisi in order to develop own activities of production or service.
11. On the other hand, all the activities of the AdSP are those of administrations of the State tied by an organic relationship with this last one, so much so that their actions are those typical ones of the administrations. The AdSP, in fact, assure, in the exclusive public interest, (i) the not discriminatory access to the markets of the harbour services by a pluralità of enterprises between they in regime of free competition and, at the same time, (ii) transparency and impartiality of administration of the state property assets of the State. The AdSP do not have relationships with shipowners and loaders.
11 Cfr. Decision § 48. 12 Court giust. 1 July 2008, C 49/07, MOTOE, ECLI: EU: C: 2008:376, §§ 27-28.
12. The Decision allegates that the qualification of the harbour canons as taxes are not important in order to determine if the AdSP carry out economic activities11. In support of this, the Decision recalls a single precedence of the inconferente Law court, as completely relative to the possibility to characterize as private subject enterprises not-for-profit12.
13. The harbour Federal property is a mere infrastructure, so as for example it is a railway net; an infrastructure, in itself, is not in competition with nothing and nobody, not being a “market”, but only a “well-place”. And that the Federal property is not a market, but a simple infrastructure, is so much truer in a situation in which all the Italian ports they are Federal property of the State; it is moreover inalienable for law, and therefore it cannot be to you competition between Federal property and other places in which harbour operations are carried out, since no enterprise can distribute in Italy harbour services on a various territory from the same Federal property. Rather, the market is made by the concessionary enterprises (and they do not give the AdSP) that they occupy the infrastructure and they make competition for the distribution of the services and the operations and that, being all companies, they re-enter in art. the 73 TUIR and pay the income taxes.
13 Cfr. Court giust. 19 January 1994, C-364/92, SAT Fluggesellschaft mbH c. Eurocontrol, ECLI: EU: C: 1994:7, §§ 30-31; Court giust. 26 March 2009, C-113/07 P, SELEX Integrated Systems PLC c. Commission, §§ 71-72).
14. When also a canon had to be assumed (quod) that put on of the Federal property behind fee () does not constitute economic activity, in this case, appears applicable that jurisprudence of the Law court that excludes the nature of enterprises to determined agencies, which, although they carry out some economic activities, in their complex are instituted for the development of activity and functions public, and not economic13.
14 the Law court has confirmed the belongings of the AdSP to Public Administration, for example having considered that the illicit behaviors of a supplier enterprise of harbour services in the Port of Genoa that “finds [] own origin in the administrative decisions of the harbour authority and/or in the law vain n. 84/94” fell back in the field of application of art. 106(1) the TFUE, and they could not therefore be directly chargeed to the former enterprise art. 102 TFUE (cfr. Decree of the Court on March 20, 2001, T-59/00 cause, Harbour Company Pietro Chiesa Soc. coop. rl against Commission, ECLI: EU: T: 2001:98, § 49. V. also Sentence of the Court on June 17, 2003, T-52/00 cause, Coe Clerici Logistics PLC against Commission ECLI: EU: T: 2003:168.) 15 Cfr. Decision § 38, where the reference to the decision of on September 18, 2013 relative Commission to the aid of Stato KNOWS. 36953 (2013/N) Spain - harbour Authority of Bahia de Cádiz. 16 Cfr. IT KNOWS. 36953 (2013/N) Spain - harbour Authority of Bahia de Cádiz, § 13 (“[t] he infrastructures resulting from the project shall be property of the PABC” and that is Port Authority of Bahía de Cádiz) and § 16 (“the new port infrastructures to be acquired by the PABC”). 17 In fact, “[t] he port authorities may either provide themselves the port services, or rent the port administrative service infrastructure to other providers on the basis of concession contracts” (cfr. IT KNOWS. 36953 (2013/N) Spain - harbour Authority of Bahia de Cádiz, § 27). V also IT KNOWS. 36953 (2013/N) Spain - harbour Authority of Bahia de Cádiz, § 14 (“[p] ort operations, the services rendered, safety and coordination are within the attributions of the Port Authorities. According to the law, the latter may either provide port services themselves, or entrust them to operators/service providers. In this houses, the PABC shall rent the new container terminal at the Port of Bahía de Cádiz to an operator/service provider selected via public stretching”).
15. Although diffused in the decisional praxis of the Commission, the qualification of the AdSP as enterprises never are not validated by the Law court, than indeed has excluded14to it. Nella Decisione, the Commission cites own relative precedence to the Port of Cadice in order to support that the business management of which put on a harbour or airport terminal of users behind the payment of a canon constitutes economic activity15. The agency manager of the Port of Cadice is not however equatable to the AdSP, as he is owner of harbour Federal property16 and can distribute harbour operations and services17.
16. Besides not to be online with the discrezionalità left to the Member States from reg. (the EU) n. 352/2017, the pretension to subject to the same legal regime “harbour agencies” between deeply various they involves the violation of the equality principle, based on which it is not only prohibited to deal in various way similar situations but equally it is not afforded to deal different situations18 in a similar way. The “[prohibition of state aids appears as a consequence of the general principle of equality and the relative corollary, second which to equal cases they must be applied 19 equal dispositions”.
2. Fiscal nature of the state property canons.
20 Cfr. Decision § 48.
17. The Decision excludes the fiscal nature of the state property canons although in the Italian ordering the payment of the canon is not shaped as fee of an economic activity20, but as the performance of a tax (whose amount is fixed directly from the law and at the market does not give the AdSP) corresponded from the concessionaire to the State owner of the state property assets for the access of the harbour economic activities (i) using the public Federal property, that is (ii) in order to carry out the harbour operations.
21 Cfr. still Decision § 48, where the reference to Trib 15 March 2018, cause T-108/16, Naviera Armas, KNOWS, ECLI: EU: T: 2018:145, § 124.
18. To such fine, the Decision second cites recording of a sentence of the Court which the “harbour taxes” are “equatable to the canons collected for use it of harbour infrastructure” 21, extrapolating it however from the context to which it refers. In such case, the Court censorship the Commission for to have excluded the presence of an aid of State in favour of an enterprise to which the exclusive use of a harbour infrastructure was granted necessary to carry out services of cabotage without before to have estimated if such exclusive use were granted by the agency manager of a port “to market conditions”.
22 And therefore without to respect the conditions of jurisprudential creation today understood from the art. 56-ter, codicil 7, of reg. the 651/2014 (“GBER”) which “[q] ualsiasi concession, or other action of bestowal, in favor of a third party for the construction, the modernization, the management or the lease of a subsidized harbour infrastructure is assigned in competitive way, transparent, not discriminatory and second not subject to conditions”.
19. Considering that the infrastructure were granted on the base of the criterion “prior in tempore, potior in iure” and without some selective procedure to public evidence22, and that the enterprise used it in via exclusive right, the Court it considers that the enterprise would have had to make itself loaded with the burdens of financing of the same one. Moreover, the enterprise not even did not pay a state property canon, but only some “harbour taxes” (relative to the entrance and to the stay of ships in the port, to the berthing, the passengers, the goods and the services of warehouse and storage and to it I use of the premises or buildings); for this the Court asks the Commission to estimate the congruity regarding the value of the infrastructure consented in via exclusive right and without comparative procedure of the only sum corresponded from the enterprise and that is exactly of the “harbour taxes”.
20. Contrarily to how much it allegates the Commission, from such sentence the principle of the comparison of “harbour taxes” is not gained therefore and canons collected for use it of an infrastructure, least of all considered that draft of front fattispecie to reg. (the EU) n. 352/2017 and that in the Italian ordering the harbour areas are assigned by means of the competitive and transparent procedure of which to the articles. 36 and ss. cod.nav.
23 Cfr. Communication on the notion of aid of State of which to article 107, paragraph 1, of the treaty on the operation of the European Union (C/2016/2946), in GU C 262 on July 19, 2016, p. 1, § 222.
21. The communication of the Commission in matter of aids of State excludes moreover that the allocation of a public infrastructure can confer an advantage to an enterprise when the management of the infrastructure is assigned to a positive price to valley of a transparent and not discriminatory procedure23.
24 Cfr. Cass. civ. 11261/2015 let alone the law 27 Decembers 2006, n. 296, dispositions for the formation of the annual budget and pluriennale of the State (c.d financial law 2007), in G.U. 27 Decembers 2006, n. 299.
22. To confirmation of the fact that the occupation of the Federal property does not constitute a service offered from the AdSP on the market, in the Italian ordering the payment of the state property canons is not subject to VAT24, coherently to the principle for which they cannot be paid pays on pays. On the other hand, in the Member States addressees of the recent decisions in matter of taxation of the ports the perceived commercial canons from the societies that manage the ports of Belgium, France and Holland are subject to VAT. The subjection to the VAT demonstrates that, in such orderings, the activities of the societies that manage the ports generally economic activities are considered, with the only exception represented from the exemption from the income tax of the societies.
25 Cfr. Decision § 20, where the reference to Court giust. 25 October 2007, C-174/06, CO.GE.P. Srl, ECLI: EU: C: 2007:634 26 In such occasion, the judge of the dismissal observed in fact that “when the concession, as it has happened if of species, is entrusted by a harbour agency, and they do not give the marine authority, such a action must be considered as exercise of activity of enterprise being the industrial and commercial character of the agency in question” (cfr. C-174/06, CO.GE.P. Srl, § 18).
23. The Decision second cites a precedence of the Law court which the also in the Italian ordering right to occupy and to use, in exclusive way also, an area of the marine Federal property, to a limited duration and behind fee, re-enters in the notion of “lease of fine immovable assets” to VAT25. Draft however of a relative sentence to facts precedence to the l. n. 84/1994 and therefore to a situation where the state property area is granted to third party from a “harbour agency” that, in then, effectively carried out activity of enterprise also in the Italian ordering, which economic public body26.
24. In any case, the Commission does not have the power to according to contest of art. the 107 TFUE the amount of the state property canon applied from the Italian State, be a matter itself of a impositiva form at the expense of the concessionary enterprises that join to the tax on the societies paid from these last ones, the only erogatrici of harbour services. The fiscal policy is field not ricompreso in the competences of the Union, according to art. the 3 YOURS and 7 TFUE.
25. What the Commission could contest would be the allocation by the AdSP of state property spaces to conditions such for creating distortions of the competition between terminaliste enterprises, by means of a disomogenea application of the state property canons from port to port or terminal to terminal to parity of operating conditions and investments to realize from the terminalista enterprise, but not the modalities with which the Italian State it decides to put into effect an own exclusive competence as that in impositiva matter.
26. The substantial difference between (i) canons predetermined from the law and collected on behalf of the State which taxation form and (ii) commercial canons freely negotiates from the parts and on the VAT is applied is not valued by the Commission, with approach that already appears not in compliance with citti the general principles by right EU of equality and parity of treatment.
3. I use of state resources.
27. The contested regime does not involve a burden financial for the State. The resources of the AdSP are subject to destination tie and must be used from the AdSP only for own operation and the development of own institutional mission.
28. As decentralized organs of the State, the AdSP moreover concur to determine the consolidated economic account of the State with the other central and local administrations. Therefore, the debt exposures of the AdSP are, in all respects, passivity of the Italian State. The greater landing charge that would derive from the application of the tax on the societies would be therefore a turn game. The amounts corresponded from the ADSP to the State as taxes would remove resources to the AdSP necessary to carry out own institutional mission. The State would have to increase own contributions to the AdSP, exactly as it would make regarding a Region, of a Municipality or any other agency pertaining to Public Administration.
29. The fact that, as a result of the eventual taxation of the AdSP, the Italian State could not that to increase own contributions to the AdSP it also demonstrates an ulterior profile of erroneità of the Decision: contrarily to how much it reports the Commission, the AdSP are not simply agencies not-for-profit and that therefore, also not pursuing the objective to make profits, they must be worried of own economic sustainability. In the Italian ordering, the AdSP are real Public Administration that must former necesse continue to carry out own pubblicistica function of regulation and administration of the government property “port” in ossequio to how much having from the l. n. 84/1994.
4. On the selective nature of the fiscal regime of the AdSP.
30. Nella Decisione c.d the system of reference with regard to which estimating (presumed) which enjoyed selective advantage from the AdSP erroneously is characterized in the total system of taxation of the societies, based on the task second which the AdSP would re-enter in the application field of art. the 73 TUIR.
31. The Commission assumes that to indent the AdSP in the application field of art. the 74 TUIR rather than in the application field of art. the 73 TUIR they would confer a competitive advantage regarding better not identified concurrent. In truth, the articles. 73 and 74 TUIR institute based on criteria objective, general and separated two coherent ordinary regimes of taxation applicable to indefinite categories of subjects that are not found between they in by right comparable conditions to all purposes and effects and. And in fact all the subjects that are found in by right comparable conditions to all purposes and effects and to the AdSP re-enter in the application field of art. the 74 TUIR. On the other hand, the system of reference characterized from the Commission ends in order to include in the subject analysis that is in conditions between very various they. For example, the AdSP are not found by right in the same conditions to all purposes and effects and of the subjects indicated from art. the 73 TUIR, as nobody of such subjects liabilities of the tax for the societies collects taxes the State on behalf.
32. C.d the system of reference to light of which to estimate the position of the AdSP therefore is represented by the fiscal regime applicable to the not economic public bodies pertaining to Public Administration whom they are found in by right comparable conditions to all purposes and effects and from the AdSP. In this optical, the fiscal regime applicable to the AdSP is not at all selective, being such subjected not economic public bodies to the same fiscal regime applicable to the State and to all the administrations that administer the Federal property and are found in by right comparable conditions to all purposes and effects and.
33. The regime in argument applies in fact to all the public administrations, between which the AdSP: the foundation is not therefore that to favor the AdSP because “they operate” in the harbour field, but simply because such is the treatment that the State reserves to all own not economic public bodies of national importance. The Italian regime is therefore deeply various from that in being in the orderings of the other Member States addressees of decisions on the taxation of the ports and institutes a coherent system of taxation based on objective, general and separated criteria. On the other hand, the norms of Belgium, Holland and France object of scrutiny by the Commission granted single carry an individual exemption from the ordinary regime of taxation of the societies by virtue of specific derogatorie norms regarding the ordinary regime, and were therefore selective.
27 Cfr. the Resolution of the Agency of the Entrances n. 96/E on April 3, 2009, than ago expressed reference to the opinion of the Cons. It are n. 1641/2002, cit., and to the relation of the State Audit Court, Section of control on the agencies, n. 37/2001, on July 13, 2001. 28 V. Cass. civ., sez. fiscal, n. 2926/2013, cit.
34. If such derogatoria norm were not adopted or were repealed, the agencies managers of the ports would be subject to the ordinary regime applicable to all the other societies. Such situation is various from how much it happens in the Italian ordering for the AdSP: also to prescind from art. the 74 TUIR, they in fact would not be subject to IRES since (i) does not re-enter between “not commercial” the private public bodies and of which to art. the 73, codicil 1, lett. (c), being, instead, instrumental agencies “to the perseguimento of the specific functions that the state has considered, in the public interest, to assume as own and to assign to a fine subject such purposely created” and, therefore, characterized from “in a marked manner pubblicistica” connotation 27; in any case, (ii) the activities carried out from such agencies in confront of the state property concessionaires constitute the implementation of institutional functions (commercial or not commercial that are) 28 to they remitted ex lege without to the AdSP are granted to act on a level with subjects by right private.
29 Cfr. Decision § 90. 30 According to the Cons. It are, “taken into consideration the nature of the resources located financial institutions on hand of said authority, it would remain excluded every purpose of I make a profit connected to the accomplishment of the institutional tasks remitted such organisms” (cfr. the Cons. opinion It are, 9 July 2002, n. 1641, recalled from the most recent Cass. civ, Sez. V, ud. 22 April 2015, sent. 29 May 2015, n. 11261).
35. The erroneità of the Decision also emerges where asserts that the structure of the Italian system of taxation of the societies as such would that is to say give rise to advantages for some enterprises “the ports, when they are found in a situation similar to that of other societies (that is to light generate profits from their economic activities) of the objective of the system of the income tax of the societies that is that to tax profits” 29. In their quality of not economic public bodies, the AdSP do not act for the production of profits, but they are limited to try to achieve the balancing between costs and revenues30.
5. Distortion of the competition and incidence on the exchanges.
31 Cfr. Decision § 64. 32 Cfr. Decision § 65.
36. The Decision allegates that the application of art. the 74 TUIR to the AdSP would have effects distorted to you for competition and the exchanges between the Member States. According to the Commission, the ADSP “make competition in order to attract […] the concessionaires who in exchange for carry out harbour services” and “the level of the canon applied from the AdSP lands and infrastructures […] he affects the choice operated from the concessionaires to settle in a port rather than in another” 31. Moreover, second the Decision, “the enterprises that intend to settle in proximity of a port can also settle not necessarily to its outside (and on lands of managed properties or from the harbour authorities), for which the harbour authorities they are in competition with other operators who rent lands to out of ports” 32.
37. Besides the fact that appears based on the erroneous foundation that the AdSP can be “owners” of lands, such affirmations are erroneous in so far as in the Italian ordering private ports do not exist and the areas of the marine Federal property that do not re-enter in the competence of the AdSP are consented by the Marine Authorities by means of the application of the same canons of which to the DM on July 19, 1989.
38. Also whereby the AdSP could reduce the canons in order to attract potential concessionaires (quod not), the Decision seem to draw from such circumstance erroneous conclusions. On one side, the competitive problem that is developed in the ports is usually that to guarantee the possibilities of access of the enterprises interested to the harbour infrastructures, which represent in fact a insufficient resource: the AdSP in other words do not need to stimulate the potential concessionaires by means of the reduction of the state property canons, since the question of harbour areas is advanced to the offer of areas available.
39. Moreover, the cost of occupation of the harbour infrastructure (rectius, the tax paid from the concessionaires) is only one of the voices of cost supported from the harbour enterprises. Draft of an element that, also whereby could be reduced from the AdSP (quod not), would have limiting gets over attraction of the potential concessionaires. The profits of the concessionaires depend for a reason or purpose in greater measure from various factors regarding the expenditure of state property canon, and in particular from the competitiveness of the logistic system to which the port it belongs. In other words, also for via of the huge costs of transfer, a concessionaire difficultly it would change own operating center for via of a reduction of the state property canon if the port that proposes it is less attractive for the final users (eg. because equipped of less efficient retroportuali connections) because the reduction of the revenues would be advanced to the saving obtained on the canon.
33 Cfr. Trib. 15 june 2000, T-298/97 and others, Alzetta Mauro and others against Commission, ECLI: EU: T: 2000:151, §§ 143-144; Trib. 4 April 2001, T-288/97 cause, Region Friuli Venice Julia against Commission, ECLI: EU: T: 2001:115. 34 Cfr. Council of State, sez. YOU, 8 May 2012 n. 2667.
40. More in general terms, a distortion of the competition that is the incidence on the exchanges between the Member States they can be only verified in open markets to the competition33, while the Italian State is classified in exclusive right is the property is the administration of the harbour state property assets, with regard to which does not exist some “market” neither competition not even merely potential34. In absence of a harmonization at the level of the Union, if a Member States only has chosen liberations to liberalize the harbour field, privatizing the agencies of management let alone the harbour areas and infrastructures, such Member States will have to act in coherent way with own decision and to respect the rules in matter of aids Is been.
35 Cfr. Court giust. 23 January 2019, C-387/17, Failure Ferries of Mediterranean PLC, ECLI: EU: C: 2019:51.
41. In support of the opposite thesis, the Decision cites the recent sentence of the Court if Ferries of Mediterranean35, where would have been asserted that you it can be an aid of State even if the enterprises receive public support in order to operate on a market not liberalized. In such case, it was be a matter of the aids granted to such company in order to operate some lines of internal cabotage before the liberalization of such activity to work of reg. (the EC) n. 3577/1992. The Court considers that you it could be a Which was about to aid of via of the risk of c.d subsidies which crossed between the activity (which subsidized and not liberalized) of the cabotage for which the enterprise it received subsidies and other asset placed of marine transport in being from the enterprise that was in fact active on other markets (instead liberalized).
36 V. supra § 5. 37 Cfr. Decision § 73. More in the detail, second the Commission, raising the AdSP “from landing charges that otherwise would have had to support and that it weighs on the concurrent enterprises, the exemption from the income tax of the free societies resources financial institutions that these enterprises can invest in own business activities, that in its turn it affects the conditions to which they can offer the their produced and services on the market” (cfr. Decision § 75).
42. Al clearly of the relative error to nautical services technical36, also the Commission characterizes as only possible “economic” activity of the AdSP the activity of “lease” of the state property areas. Considering that the AdSP are active only on the market not liberalized, not there is the risk of which crossed subsidies. For the reasons already indicated, is in fact deeply erroneous the affirmation of the Decision second which the exemption from the tax “strengthens the position of the AdSP, which are able to wind down their prices and to return the infrastructures harbour that they manage more attractive for the customers, in particular those of other Member States” 37.
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The National Association Companies Harbour Enterprises (ANCIP) has sent to the EU commission own observations with respect to the procedure adopted from this last one in order to ask Italy to abolish the enforced exemption for the Italian Authorities of Harbour System from the income tax of the societies, than according to Brussels it would constitute an aid of incompatible State with the norms EU. In the document sent to the EU commission, that we bring back below, the ANCIP explains because the regime of taxation of the AdSP in the Italian ordering does not grant they some selective advantage neither re-enters in the application field of the articles. 107 and ss. TFUE.
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