Poste Italiane (State aid - Competition - Management of the post-office account used for collection of the municipal real estate tax - Judgment) [2021] EUECJ C-434/19 (03 March 2021)

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(References for a preliminary ruling – State aid – Competition – Article 107(1) TFEU – Conditions under which applicable – Article 106(2) TFEU – Services of general economic interest – Management of the post-office account used for collection of the municipal real estate tax – Undertakings benefiting from special or exclusive rights granted by the Member States – Fees set unilaterally by the recipient undertaking – Abuse of dominant position – Article 102 TFEU – Inadmissibility)

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decisions of 21 January 2019, received at the Court on 5 June 2019, in the proceedings

Riscossione Sicilia SpA agente riscossione per la provincia di Palermo e delle altre provincie siciliane (C‑434/19),

composed of E. Regan, President of the Chamber, M. Ilešič, E. Juhász, C. Lycourgos (Rapporteur) and I. Jarukaitis, Judges,

– Agenzia delle entrate – Riscossione, by G. Visentini and A. Papa Malatesta, avvocati,

after hearing the Opinion of the Advocate General at the sitting on 24 September 2020,

1 These requests for a preliminary ruling concern the interpretation of Articles 14, 102, 106 and 107 TFEU.

2 The requests were made in disputes between, first, Poste Italiane SpA and Riscossione Sicilia SpA agente riscossione per la provincia di Palermo e delle altre provincie siciliane (‘Riscossione Sicilia’) (Case C‑434/19) and, second, Agenzia delle entrate – Riscossione (Italian Revenue Agency – Collection; ‘the Collection Agency’) and Poste Italiane (Case C‑435/19), concerning requests for the payment of fees sent by Poste Italiane to the agents responsible for collecting the imposta comunale sugli immobili (municipal real estate tax; ‘the ICI’) for the management services provided for the post-office current accounts held by those agents and used to collect the ICI from tax payers.

3 Article 2(18) to (20) of legge n. 662 – Misure di razionalizzazione della finanza pubblica (Law No 662 on measures to rationalise public finances) of 23 December 1996 (Ordinary supplement to GURI No 303 of 28 December 1996; ‘Law No 662/1996’) provides:

‘18. … Poste Italiane may set fees payable by post-office current account holders.

19. Post-office and payment services for which a statutory monopoly regime is not expressly provided for by the legislation in force shall be performed by Poste Italiane and by other operators under the rules of free competition. As regards those services, every tariff obligation or social obligation on Poste Italiane, as well as every form of preferential tariff relating to users of that undertaking, defined by the legislation in force, shall cease as from 1 April 1997 … Poste Italiane shall be required to keep separate accounts, distinguishing, in particular, between the costs and revenues connected to services provided under a statutory monopoly and those relating to services provided under the rules of free competition.

20. As from 1 April 1997, prices for the services referred to in Paragraph 19 shall be fixed, including by contract, by Poste Italiane, taking into account the requirements of customers, the characteristics of demand and the need to preserve and increase traffic volumes …’

4 Article 10(3) of decreto legislativo n. 504 – Riordino della finanza degli enti territoriali, a norma dell’articolo 4 della legge 23 ottobre 1992, n. 421 (Legislative Decree No 504 on the reorganisation of the finances of regional bodies pursuant to Article 4 of Law No 421 of 23 October 1992) of 30 December 1992 (Ordinary supplement to GURI No 305 of 30 December 1992; ‘Legislative Decree No 504/1992’), provides:

‘The tax due under paragraph 2 shall be settled by direct payment to the agent responsible for its collection in the district in which the municipality referred to in Article 4 is located or by payment into a post-office current account set up for that purpose in the name of the agent in question … The commission due to the agent shall be payable by the municipality levying the tax and is fixed at 1% of the sums collected, with a minimum of 3 500 [Italian] lira [(ITL) (approximately EUR 1.75)] and a maximum of [ITL] 100 000 [(approximately EUR 50)] for each payment made by the tax payer.’

5 Articles 5 to 7 of decreto del Ministro delle Finanze n. 567 – Regolamento di attuazione dell’articolo 78, commi da 27 a 38, della legge 30 dicembre 1991, n. 413, concernente l’istituzione del conto fiscale (Decree of the Minister for Finance No 567 implementing Article 78(27) to (38) of Law No 413 of 30 December 1991 establishing the tax account), of 28 December 1993 (GURI No 306 of 31 December 1993), allow tax account holders to settle, by direct over-the-counter payment to the agent or by standing order set up with a credit institution in the name of the agent, amounts owed by way of personal income tax, corporation tax – including by proxy, local income tax and taxes in replacement of the aforementioned taxes and value added tax.

6 Article 59(1)(n) of decreto legislativo n. 446 – Istituzione dell’imposta regionale sulle attività produttive, revisione degli scaglioni, delle aliquote e delle detrazioni dell’Irpef e istituzione di una addizionale regionale a tale imposta, nonché riordino della disciplina dei tributi locali (Legislative Decree No 446 introducing the regional tax on productive activities, revising personal income tax brackets, rates and deductions and introducing a regional supplement to that tax, and reorganising the local taxation discipline) of 15 December 1997 (Ordinary Supplement to GURI No 298 of 23 December 1997), reserves for municipalities the power to adopt rules governing the collection of local taxes, in order thereby to ‘rationalise arrangements for making both voluntary payments and payments following checks, by providing for payment to be made into a post-office current account opened in the name of the Municipal Tax Administration, directly to the Municipal Tax Administration or through the banking system, in addition to or instead of to the agent responsible for collection’.

7 Under Article 3(1) of decreto del Presidente della Repubblica n. 144 – Regolamento recante norme sui servizi di bancoposta (Decree of the President of the Republic No 144 on the rules relating to post-office banking services) of 14 March 2001 (GURI No 94 of 23 April 2001; ‘Presidential Decree No 144/2001’), ‘unless otherwise provided for in this Decree, relations with customers and post-office current accounts shall be governed by contract, due regard being had to the provisions of the Civil Code and of special laws’.

8 Decreto legge n. 70 – Semestre Europeo – Prime disposizioni urgenti per l’economia (Decree-Law No 70 on the European semester – first urgent provisions in favour of the economy) of 13 May 2011 (GURI No 110 of 13 May 2011), converted into law, as amended by decreto-legge n. 16 (Decree-law No 16) of 2 March 2012 (GURI No 52 of 2 March 2012) (‘Decree-law No 70/2011’), provides, in Article 7(2)(gg-f):

‘Where the collection of revenues is entrusted to the persons referred to in Article 52(5)(b) of Legislative Decree No 446 of 15 December 1997, that collection shall be achieved via one or more bank or post-office deposit-only current accounts opened in the name of the agent and used for the collection of revenue accruing to the contracting authority, into which all sums collected shall be paid.’

9 Tariff Decision No 57/1996 of the Board of Directors of Poste Italiane (‘Tariff Decision No 57/1996’) provided for a fee to be levied on each management operation carried out in respect of the post-office current account held by an agent of the tax collection service. That fee was set at ITL 100 (approximately EUR 0.05) from 1 April 1997 to 31 May 2001 and at EUR 0.23 (approximately ITL 450) from 1 June 2001 to 31 December 2003.

The disputes in the main proceedings and the questions referred for a preliminary ruling

10 In Italy, Legislative Decree No 504/1992 required taxpayers subject to pay the ICI to pay the amount owed by them to one of the agents of the State responsible for collecting that tax and for transferring it to the municipality levying it. Under the same legislation, the ICI must be paid by direct payment to the agent of the district in which the municipality levying the tax is located or by payment into a post-office current account in the name of that agent.

11 The disputes in the main proceedings concern requests for the payment of fees sent by Poste Italiane to two agents responsible for collecting the ICI, namely Riscossione Sicilia and the Collection Agency.

12 Those fees were claimed for the management, from 1997 to 2011, of current accounts with Poste Italiane held by those agents for the purpose of allowing tax payers to pay into them the sums they owed in respect of the ICI.

13 Those fees were calculated on the basis of the tariffs established by Tariff Decision No 57/1996.

14 In the dispute giving rise to Case C‑434/19, Poste Italiane brought an action before the Tribunale di Palermo (District Court, Palermo, Italy) seeking an order against the agent responsible for collecting the ICI, which subsequently became Ricossione Sicilia, for the payment of the fee due on each payment of the ICI made by each tax payer to the agent’s current account by means of a post-office pay-in slip, namely EUR 0.05 (approximately ITL 100) from 1 April 1997 to 31 May 2001, EUR 0.23 (approximately ITL 450) from 1 June 2001 to 31 December 2003 and, from 1 January 2004, successively changing amounts. By a judgment of 7 June 2011, the Tribunale di Palermo (District Court, Palermo) dismissed the action before it and, by a judgment of 11 May 2016, the Corte d’appello di Palermo (Court of Appeal, Palermo, Italy) overturned that judgment in part, upholding the appeal brought by Poste Italiane in so far as Poste Italiane had provided evidence of its claims for the period after 1 June 2006.

15 In the dispute giving rise to Case C‑435/19, Poste Italiane brought an action before the Tribunale di Macerata (District Court, Macerata, Italy) seeking an order against the Collection Agency, the agent responsible for collecting the ICI, for the payment of the fee due on each ICI payment made by each tax payer to the agent’s current account by means of a post-office pay-in slip, namely EUR 0.05 (approximately ITL 100) from 1 April 1997 to 31 May 2001 and EUR 0.23 (approximately ITL 450) from 1 June 2001 to 20 December 2001. By a judgment of 11 June 2009, the Tribunale di Macerata (District Court, Macerata) dismissed the action for order of payment brought before it and, by a judgment of 10 August 2016, the Corte d’appello di Ancona (Court of Appeal, Ancona, Italy) overturned in full the judgment handed down by that district court, upholding the appeal brought by Poste Italiane and holding that the latter was entitled to apply the fee at issue and claim its payment.

16 The disputes in the main proceedings are pending before the referring court before which, in Case C‑434/19, Poste Italiane brought an appeal and Riscossione Sicilia brought a cross-appeal, and, in Case C‑435/19, the Collection Agency brought an appeal and Poste Italiane SpA – Bancoposta brought a cross-appeal.

17 As regards whether the fee applied by Poste Italiane was lawful, the referring court held, in a judgment of 26 March 2014, that the provisions of Articles 18 to 20 of Law No 662/1996 are not applicable to activities subject to a statutory monopoly, such as the post-office current account service provided for in Article 10 of Legislative Decree No 504/1992. It held that the objective of maximising tax collection by means of a service provided throughout the territory, thanks to the very wide territorial distribution of post offices which allows the tax payer to be reached more easily, justifies that statutory monopoly. According to that judgment of the referring court, Legislative Decree No 504/1992, which establishes the statutory monopoly in question, does not provide for the management services provided in respect of the post-office current accounts intended to receive payments of the ICI to be provided for free, with the result that, irrespective of the obligation on the agent to open a post-office current account, those services must be deemed to be provided, by nature, in exchange for a fee, in the same way that normal current account management services are provided for a fee under conditions of free competition.

18 However, now hearing disputes concerning the obligation to pay the fee applied by Poste Italiane between 1997 and 2011, the referring court is uncertain whether, in the light of EU rules, and more specifically those concerning competition law and State aid, it is lawful that Article 10 of Legislative Decree No 504/1992 reserves for Poste Italiane the provision of management services in respect of the current accounts used to collect the ICI.

19 According to the referring court, the contractual relationship between a municipality and its agent responsible for collecting the ICI concerns the exercise of an economic activity consisting in the collection of tax revenues, which may be defined as a service of general economic interest within the meaning of Article 106(2) TFEU. That relationship is different from the private relationship between Poste Italiane and the agents responsible for collecting the ICI, which relates to the opening and management of the post-office current account. The referring court states that Article 10(3) of Legislative Decree No 504/1992, notwithstanding the limitation which it introduces as regards the possibility of the agent choosing the other party to the contract, namely, Poste Italiane, does not differentiate between the relationship which connects those parties and the relationship between Poste Italiane and its other clients holding post-office accounts.

20 The referring court considers that Article 10 of Legislative Decree No 504/1992 can be held to be compatible with EU legislation only to the extent that the current account management service which is reserved for Poste Italiane comes within the concept of ‘management of a service of general economic interest’, within the meaning of Article 106(2) TFEU. In its view it should be established whether, despite the lack of similar statutory provisions governing the collection of local taxes other than the ICI, the requirement of maximising the efficiency of the collection of the latter tax, thanks to the vast geographical distribution of post offices, fulfils the criteria of a particular task and, accordingly, whether it justifies a restriction of the application of EU rules on competition for the purposes of Articles 14 and 106 TFEU.

21 If the service relating to the management of post-office current accounts intended for the collection of the ICI is held to be a service of general economic interest, the referring court asks, in the first place, whether the power conferred on Poste Italiane to establish the fee could – in so far as it constitutes, in essence, in relation to the agents, a mandatory tax or due imposed by law, and thus aid granted by means of public funds – be classified as ‘unlawful State aid’ for the purposes of Article 107(1) TFEU, given that that measure was not notified to the European Commission before being implemented, pursuant to Article 108(3) TFEU.

22 The referring court asks, in the second place, whether Poste Italiane unilaterally setting the fee at issue in the main proceedings may be classified as abusive and therefore prohibited under the first paragraph of Article 102 TFEU. It notes that the agent cannot avoid paying that fee without failing to fulfil its obligations under the separate legal relationship between the agent and the local taxing body which concerns the collection of the ICI.

23 In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a rule such as that provided for in the combined provisions of Article 10(3) of Legislative Decree No 504/1992 and Article 2(18) to (20) of Law No 662/1996, under which reserved services (statutory monopoly) in favour of Poste Italiane … are set up and maintained – even following the privatisation of the “bancoposta” postal banking services provided by Poste Italiane … – in relation to the management of the postal current account intended for the collection of the local municipal real estate tax (ICI), incompatible with Articles 14 TFEU (… Article 7D of the [EC] Treaty, then Article 16 EC) and 106(2) TFEU (… Article 90 of the [EC] Treaty, then Article 86(2) EC) and with classification as a service of general economic interest (SGEI), bearing in mind developments in State rules governing tax collection which, since 1997 at least, has allowed taxpayers and local tax authorities freely to use methods of payment and tax collection (including local taxes) through the banking system?

(2) If the answer to the first question is that the establishment of the statutory monopoly must be recognised as meeting the SGEI criteria, is a rule such as that resulting from the combined provisions of Article 10(3) of Legislative Decree No 504/1992, Article 2(18) to (20) of Law No 662/1996 and Article 3(1) of Presidential Decree No 144/2001, which grants Poste Italiane … the power unilaterally to determine the level of the fee payable by the agent collecting the ICI that is applied to each management transaction carried out in the postal current account in the name of the agent, incompatible with Articles 106(2) TFEU (… Article 90 of the [EC] Treaty, then Article 86(2) EC) and 107(1) TFEU (… Article 92 of the [EC] Treaty, then Article 87 EC), according to the interpretation of such rules provided by the Court of Justice with reference to the requirements for distinguishing a lawful measure – providing compensation for the performance of public service obligations – from unlawful State aid (judgment of the Court of Justice of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00[, EU:C:2003:415]), bearing in mind that Poste Italiane …, by [Tariff Decision] No 57/1996, set that fee at ITL 100 for the period from 1 April 1997 to 31 May 2001 and at EUR 0.23 for the period from 1 June 2001?

(3) Is a set of rules such as that put in place by Article 2(18) to (20) of Law No 662/1996, Article 3(1) of Presidential Decree No 144/2001 and Article 10(3) of Legislative Decree No 504/1992, under which the agent is necessarily required to pay the fee as unilaterally determined and/or varied by Poste Italiane …, incompatible with Article 102, first paragraph, TFEU (… Article 86 of the [EC] Treaty, then Article 82(1) EC), as interpreted by the Court … (see judgments of 13 December 1991, GB-Inno-BM, C‑18/88[, EU:C:1991:474]; of 25 June 1998, Dusseldorp and Others, C‑203/96[, EU:C:1998:316], and of 17 May 2001, TNT Traco, C‑340/99[, EU:C:2001:281]), given that the agent is not otherwise able to withdraw from the postal current account contract without infringing the obligation laid down in Article 10(3) [of] Legislative Decree No 504/1992 and, as a consequence, infringing its ICI-collection obligations to the local tax authority?’

24 The hearing, which had been scheduled to take place on 22 April 2020, was cancelled on account of the health crisis and the uncertainty as to when the Court might be able to resume its judicial activity under normal conditions, and the questions which had been put for an oral response were converted into questions for a written response. Poste Italiane, the Collection Agency and the Commission replied to the questions posed within the period prescribed by the Court.

25 Poste Italiane claims, primarily, that the first question is inadmissible on the ground that, first, it is impossible to understand it in so far as it refers to Article 14 TFEU and, second, it is for the national courts alone to apply the conditions set out in Article 106(2) TFEU directly.

26 In the first place, it must be borne in mind that, in the context of the cooperation between the Court and the national courts established in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 19 December 2019, Darie, C‑592/18, EU:C:2019:1140, paragraph 24 and the case-law cited).

27 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 8 October 2020, Union des industries de la protection des plantes, C‑514/19, EU:C:2020:803, paragraph 29 and the case-law cited).

28 In the second place, it should be borne in mind that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it (judgments of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 31 and the case-law cited).

29 To that end, the Court can extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 32 and the case-law cited).

30 In the present case, although the first question does mention Article 14 TFEU, it also concerns Article 106 TFEU and, more precisely, the concept of service of general economic interest, which is covered by those two articles, and asks, in essence, whether an activity such as that reserved to Poste Italiane of managing the post-office current accounts used to collect the ICI has the features of such a service of general economic interest. That question thus concerns the interpretation of EU law and appears to be neither hypothetical nor devoid of a connection with the dispute in the main proceedings. Moreover, the Court has all the information it needs to answer that question.

32 By its first and second questions, which should be examined together, the referring court asks, in essence, whether Article 106(2) and Article 107 TFEU must be interpreted as precluding the application of national rules that require the agents responsible for collecting the ICI to open a current account in their name with Poste Italiane to enable tax payers to pay that tax, and to pay a fee for the management of that current account, when the Commission was not notified of those rules under Article 108(3) TFEU.

33 As a preliminary point, it should be borne in mind that, although the Commission has, subject to review by the EU Courts, exclusive jurisdiction to assess the compatibility of aid with the internal market (see, to that effect, inter alia, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 99 and the case-law cited), that fact does not preclude a national court from referring to the Court of Justice a question on the interpretation of the definition of ‘aid’. Accordingly, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation of EU law to enable it to determine whether a national measure may be classified as ‘State aid’ under Article 107 TFEU (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 12 and the case-law cited).

34 In addition, in order to ensure the effectiveness of the requirement to inform the Commission of any plans to grant or alter aid, provided for in Article 108(3) TFEU, as well as proper and full consideration of State aid by the Commission, national courts are bound to draw all the consequences from a breach of that obligation and to adopt the measures that are appropriate to remedy them, even if the recipient of unlawful aid is an undertaking entrusted with the operation of a service of general economic interest in accordance with Article 106(2) TFEU (see, to that effect, judgment of 24 November 2020, Viasat Broadcasting UK, C‑445/19, EU:C:2020:952, paragraph 43).

35 It should also be noted that the examination of the question of whether the measure at issue should be categorised as ‘State aid’, within the meaning of Article 107 TFEU, which may involve the verification of the conditions laid down in the case-law arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), occurs before the examination of a measure of aid under Article 106(2) TFEU. That question must be resolved before the one which consists in examining, where necessary, if aid that is incompatible with the internal market is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU (see, to that effect, judgments of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 34, and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 102).

36 In order to answer the first and second questions, it is therefore necessary first to assess whether the measure at issue in the main proceedings should be categorised as ‘State aid’ within the meaning of Article 107 TFEU.

37 Categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary and that it distort or threaten to distort competition (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 46 and the case-law cited).

38 As regards, in the first place, the condition relating to intervention by the State or through State resources, it should be noted that the distinction established in Article 107(1) TFEU between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not mean that all advantages granted by the State constitute aid, whether they are financed with State resources or not, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 26 and the case-law cited).

39 It follows that, in order for it to be possible to categorise advantages as ‘State aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 47 and the case-law cited).

40 As regards, first, the condition that a measure of aid be attributable to the State, that condition renders it necessary to examine whether the public authorities were involved in the adoption of that measure (judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 23).

41 In the present case, it is clear from the orders for reference that the provisions at issue in the main proceedings were established by legislative and regulatory provisions. The obligation on the agents to hold a current account with Poste Italiane for the collection of the ICI was established by Legislative Decree No 504/1992, while the right for that undertaking to collect a fee for the management of that account was provided for by Law No 662/1996. Against that background, while it is for the referring court to verify, the provisions requiring the agents to hold a current account in their name with Poste Italiane to enable taxpayers to pay the ICI and requiring them to pay a fee for the management of that current account can be considered to be attributable to the State.

42 As regards, second, the condition relating to the transfer of State resources, it is important to clarify that the concept of ‘State resources’ covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the aid measure are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources (judgments of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 36 and the case-law cited, and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 30 and the case-law cited).

43 In the light of the information provided by the referring court and the documents available to the Court, it is important to make clear, in this regard, that a measure under which undertakings, whether public or private, are bound to an obligation to purchase or acquire services by means of their own financial resources does not constitute State aid. That obligation does not, in principle, involve the use of State resources, for the purposes of Article 107 TFEU. The opposite would be true, however, if those undertakings were considered to be appointed by the State to manage a State resource, which would be the case if it was prescribed that those extra costs incurred as a result of that obligation to purchase or acquire services were to be passed on entirely to end users, or that they were to be financed by a compulsory contribution imposed by the State or by a full offset mechanism (see, to that effect, judgments of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 26 and 30 and the case-law cited, and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 68).

44 Moreover, resources of public undertakings may be regarded as State resources where the State is capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order to finance, where appropriate, advantages to the benefit of other undertakings (see, to that effect, judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 31 and the case-law cited).

45 In the present case, it is clear from the national legislation, as referred to in the orders for reference, that the measure at issue in the main proceedings may be regarded as involving an obligation to purchase services, since, under Article 10(3) of Legislative Decree No 504/1992, the agents are obliged to open a current account in their name with Poste Italiane for the collection of the ICI from taxpayers and, under Article 2(18) of Law No 662/1996, Poste Italiane may collect a fee for the management of that account from those agents.

46 In that regard it is important to state, first, that the mere fact that the agents became public undertakings in the course of 2006 does not lead to the conclusion that the obligation on those agents to purchase services is financed by means of State resources.

47 It is not apparent from the information set out by the referring court that the measure at issue in the main proceedings is the result of use by the State of its dominant influence over those undertakings in order to direct the use of their resources, within the meaning of the case-law referred to in paragraph 44 above, since the obligation to hold a current account with Poste Italiane for the collection of the ICI from taxpayers follows from the provisions laid down by regulation and not from state intervention in those agents’ commercial policy, and it was applied to the agents in a similar manner before and after 2006, during the course of which they came into public control.

48 It is, however, necessary determine, in accordance with what was stated in paragraph 43 above, whether the agents responsible for collecting the ICI constitute undertakings appointed by the State to manage a State resource, which would be the case, inter alia, if there was a full offset mechanism for the extra costs resulting from that obligation.

49 It is not clear from the information available to the Court that such a mechanism exists.

50 It is apparent from the orders for reference that, under Article 10(3) of Legislative Decree No 504/1992, the taxing municipalities are obliged to pay their agents a commission for their activity of collecting the ICI. However, although those sums are clearly of public origin, there is no evidence that they are intended to cover the extra costs which the agents are liable to incur as a result of their obligation to open a current account with Poste Italiane and that the State thus ensures that those extra costs are covered in full. It is for the referring court to determine whether that is the case.

51 It should be noted, moreover, that it is not apparent either from the orders for reference or from the documents available to the Court that any extra costs incurred as a result of the obligation to acquire services from Poste Italiane, which is at issue in the main proceedings, should be borne in full by the tax payers or that they would be financed by another form of compulsory contribution imposed by the State.

52 However, even if it does not seem, prima facie, that the fees paid by the agents to Poste Italiane in connection with the opening and management of the accounts which they are required to hold with Poste Italiane may be regarded as being granted directly or indirectly through State resources, this must be verified by the referring court as the Court may not carry out a direct examination of the facts in the main proceedings.

53 Concerning, in the second place, the condition to the effect that the measure must confer a selective advantage on the recipient undertaking, it should be noted that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 83 and the case-law cited).

54 In that regard, the right conferred by national regulation on an undertaking to levy fees for managing a service in respect of which it holds the statutory monopoly is liable in principle to be regarded as a selective advantage for the sole benefit of that undertaking.

55 It is apparent from the orders for reference and the other documents available to the Court that it is Legislative Decree No 504/1992, which established a statutory monopoly in favour of Poste Italiane, that provided for the obligation on the agents to open a current account in their name with Poste Italiane for receiving payments of the ICI from tax payers. Until Decree-Law No 70/2011, Poste Italiane was the only beneficiary of that advantage, which had been justified by the very wide distribution of post offices across the national territory, allowing the tax payer to be reached more easily.

56 However, it should be noted that, in the light of the circumstances at issue in the main proceedings, the referring court asks the Court, more specifically, about the criteria set out in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), concerning the case of compensation provided for the performance, by an undertaking, of public service obligations.

57 In that regard, the Court has held that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, with the result that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of placing them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 107(1) TFEU (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87; of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 25; and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 100).

58 In accordance with paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), in order for such a measure to escape classification as ‘State aid’, a number of conditions must be satisfied. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation must not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations. Lastly, where the undertaking responsible for discharging public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure aimed at selecting the bidder capable of providing that service at the least cost to the community, the level of compensation necessary must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations.

59 As regards the first condition laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), the Court held that that condition is designed to ensure transparency and legal certainty, and thus requires that minimum criteria be met in relation to the existence of one or more acts of public authority defining, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations imposed on the undertakings entrusted with the performance of those obligations. In the absence of a clear definition of such objective criteria, it is not possible to verify whether a particular activity may be covered by the concept of a service of general economic interest (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 86 and the case-law cited).

60 In the current case, it should be noted that the cases in the main proceedings do not concern the postal services offered by Poste Italiane and that, as regards the collection of the ICI, the referring court distinguishes between, on the one hand, the relationship which, by means of an administrative concession, using a procurement procedure, connects the municipality (the taxing authority) and the agent responsible for that collection and, on the other hand, the private relationship which connects that agent and Poste Italiane through the obligation to hold a post-office current account for that collection and to pay a fee for the management of that account. The cases in the main proceedings concern only the second of those two relationships.

61 As the Advocate General noted in point 45 of his Opinion, there is nothing to indicate that, in its relationship with those agents, Poste Italiane is formally obliged to provide certain services pursuant to a public service obligation in a way that defines the nature and scope of that obligation with sufficient precision.

62 On the contrary, even if the opening and the management of the post-office current accounts in the name of the agents are among the activities establishing methods for organising and implementing the public service of collecting the ICI, which is entrusted to the agents, it is clear from the orders for reference and the other documents in the file available to the Court that, outside the obligation to contract with all the agents, Poste Italiane is not subject to additional obligations to those which apply to the banking services sector.

63 In particular, Poste Italiane remains free to set its fees and, aside from the obligation to contract with the agents, no other specific factor differentiates its relationship with those agents from the relationship it has with its other post-office current account clients. Poste Italiane stated that it has a normal current account relationship with the agents and that it has always offered a single post-office current account with a basic service which is the same for all its clients. The Collection Agency also confirmed that Poste Italiane applied the same economic conditions to the current accounts of the agents as it applies generally to all other legal persons.

64 Accordingly, the first condition laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) is not satisfied in the present case and there is no need to examine the other conditions laid down in that judgment, since those conditions are cumulative.

65 It follows that Poste Italiane’s right, granted by the relevant national regulation, to collect fees for the management of the post-office current accounts which the agents were legally required to open in their name in order to receive payments of the ICI from tax payers may be regarded as a selective advantage, which is a matter for the referring court to verify.

66 As regards, in the third place, the conditions that the intervention must be liable to affect trade between Member States and must distort or threaten to distort competition, although the orders for reference do not contain information in that respect, it is possible to consider, subject to verification by the referring court, that they are satisfied in the present case.

67 First, it is necessary to bear in mind that, for the purpose of categorising a national measure as ‘State aid’, it is necessary not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted but merely to examine whether that aid is liable to affect such trade and to distort competition (judgment of 29 July 2019, Azienda Napoletana Mobilità, C‑659/17, EU:C:2019:633, paragraph 29 and the case-law cited).

68 Moreover, when aid granted by a Member State strengthens the position of certain undertakings as compared with that of other undertakings competing in trade between Member States, such trade must be regarded as being affected by the aid. In that regard, it is not necessary that the beneficiary undertakings themselves be involved in trade between Member States. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (judgment of 29 July 2019, Azienda Napoletana Mobilità, C‑659/17, EU:C:2019:633, paragraph 30 and the case-law cited).

69 However, it cannot be ruled out, in the present case, that, by obliging the agents to each hold a post-office current account for collecting the ICI from tax payers and to pay a fee to Poste Italiane for the management of that account, the Italian legislation at issue in the main proceedings is capable of strengthening the position of that public undertaking compared to competing undertakings in the banking and financial services sector and that it is also capable of affect trade between Member States.

70 It is, however, for the referring court to assess the effect of the measure at issue in the main proceedings on the activity of Poste Italiane and of other banking institutions which, at least until the adoption of Decree-Law No 70/2011, reserved for Poste Italiane the advantage arising from the obligation on the agents to open a current account in their name with that undertaking in order to receive payment of the ICI from tax payers, in addition to the possibility of making the payment of that tax directly to those agents.

71 In the fourth place, it should be noted that it is apparent from the orders for reference that the measure established by Legislative Decree No 504/1992, giving Poste Italiane the monopoly on the management of the current accounts opened in the name of the agents responsible for collecting the ICI, was not notified to the Commission under Article 108 TFEU.

72 It follows that, should the referring court come to the conclusion, in the light of the guidance provided in paragraphs 37 to 70 above, that the measure at issue in the main proceedings constitutes State aid, it is for that court, in accordance with the case-law cited in paragraph 34 above, to draw all necessary inferences from the infringement, in the present case, of Article 108(3) TFEU.

73 As to the remainder, it should be noted that, since the first condition laid down by the case-law arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) – that the beneficiary undertaking must have public service obligations to discharge which must be clearly defined – also applies where the derogation laid down in Article 106(2) TFEU has been invoked (judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 56 and the case-law cited), Article 106(2) TFEU cannot apply in the cases in the main proceedings, since it was held, in paragraph 64 above, that that condition is not satisfied in this instance. In any event, since the Commission has exclusive jurisdiction to assess the compatibility of aid with the internal market, as is apparent from the case-law set out in paragraph 33 above, the referring court does not have jurisdiction to examine whether the conditions for the application of Article 106(2) TFEU are satisfied.

74 In the light of the foregoing considerations, the answer to the first and second questions is that Article 107 TFEU must be interpreted as meaning that a national measure under which the agents responsible for collecting the ICI are required to hold a current account in their name with Poste Italiane, to enable tax payers to pay that tax, and to pay a fee for the management of that current account, constitutes ‘State aid’ provided that that measure (i) can be attributed to the State, (ii) provides a selective advantage to Poste Italiane through State resources and (iii) is liable to distort competition and trade between the Member States, which are matters for the referring court to ascertain.

75 By its third question, the referring court asks whether Article 102 TFEU precludes national legislation under which the agents responsible for collecting the ICI must pay a fee set unilaterally by Poste Italiane for the management of the post-office current account which they are obliged to open with that undertaking.

76 Poste Italiane claims that the third question is inadmissible since the referring court has produced no analysis or clarification as to why the national legislation at issue in the main proceedings does not comply with Article 102 TFEU. In its view, if the question referred concerned the interpretation of Article 106(1) TFEU, read in conjunction with Article 102 TFEU, it would also be inadmissible. The referring court has not given a clear indication of the service market concerned, the relevant geographical area, the number of operators providing the service in question and their respective shares of the market.

77 In that regard, it should be borne in mind that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (judgments of 12 December 2013, Ragn-Sells, C‑292/12, EU:C:2013:820, paragraph 39, and of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 49 and the case-law cited).

78 In the cases in the main proceedings, the third question asks, in essence, not only whether the national legislation at issue in the main proceedings has had the effect of granting Poste Italiane special or exclusive rights, within the meaning of Article 106(1) TFEU, but also whether such legislation may have led to an abuse of a dominant position.

79 As the Advocate General stated in point 92 of his Opinion, the referring court should have provided precise information on the characteristics of the relevant market, its geographical extent and whether any equivalent services exist.

80 In particular, the orders for reference do not contain information enabling the identification of the constituent elements of a dominant position for the purposes of Article 102 TFEU in the context of the cases in the main proceedings. In that regard, it should be noted that, despite the information submitted by the parties to the proceedings before the Court in reply to the questions asked by the latter, it is not possible to define the relevant market with sufficient precision from the point of view of the services in question in the main proceedings, its geographical extent and the shares of the market held by the various undertakings operating in that market, or to consider with any certainty that obliging the agents to hold a current account for the collection of the ICI with Poste Italiane confers on the latter a dominant position in a substantial part of the internal market.

81 The orders for reference also do not explain why the Italian legislation at issue in the main proceedings is liable to lead Poste Italiane to abuse its position.

82 Given that the Court does not have before it the material necessary to give a useful answer, the third question must be declared inadmissible.

83 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 107 TFEU must be interpreted as meaning that a national measure under which the agents responsible for collecting the imposta comunale sugli immobiliare (municipal real estate tax) are required to hold a current account in their name with Poste Italiane SpA, to enable tax payers to pay that tax, and to pay a fee for the management of that current account, constitutes ‘State aid’ provided that that measure is (i) attributable to the State, (ii) provides a selective advantage to Poste Italiane through State resources and (iii) is liable to distort competition and trade between the Member States, which are matters for the referring court to ascertain.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Poste Italiane (State aid - Competition - Management of the post-office account used for collection of the municipal real estate tax - Judgment) [2021] EUECJ C-434/19 (03 March 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C43419.html Cite as: [2021] 3 CMLR 4, [2021] EUECJ C-434/19, ECLI:EU:C:2021:162, EU:C:2021:162

Court of Justice of the European Communities (including Court of First Instance Decisions)