2003/146/EC: Commission Decision of 22 August 2002 on the tax measures for banking foundations implemented by Italy C 54/2000/EC (ex NN 70/2000) (Text with EEA relevance) (notified under document number C(2002) 3118)

• Articles: 4

Article 1

The measure which Italy has implemented under Article 12(2), Article 13, Article 16(4) and (5) and Article 27(2) of Legislative Decree No 153 of 17 May 1999 for foundations which do not directly carry out activities in the sectors listed in Article 1(1)(c-bis) of that Decree, as amended by Law No 448 of 28 December 2001, does not constitute aid within the meaning of Article 87(1) of the Treaty.

Article 2

The measure which Italy has implemented under Article 13, Article 16(6) and Article 17 of Legislative Decree No 153 of 17 May 1999 for transferee companies which do not carry out banking activities, do not offer any service to third parties and are entirely owned by the foundations referred to in Article 1 of the present decision does not constitute aid within the meaning of Article 87(1) of the Treaty.

Article 3

If foundations are directly involved in an economic activity, even in the "relevant" sectors, where there is trade between Member States, any tax advantage that may benefit these activities is likely to constitute State aid and must therefore be notified pursuant to Article 88(3) of the EC Treaty. Where the majority of members of foundations' governing bodies are appointed by the local authorities, any funds or other forms of support granted to undertakings is likely to constitute State aid and must therefore be notified pursuant to Article 88(3) of the EC Treaty. Where transferee companies offer services to third parties, any tax advantage granted to them is likely to constitute State aid and must therefore be notified pursuant to Article 88(3) of the EC Treaty.

Article 4

This Decision is addressed to the Italian Republic.

Done at Brussels, 22 August 2002.

For the Commission

Mario Monti

Member of the Commission

(1) OJ C 44, 10.2.2001, p. 2.

(2) See footnote 1.

(3) Commission notice pursuant to Article 93(2) of the EC Treaty to other Member States and interested parties concerning aid granted to Banco di Napoli (Case C 40/96; OJ C 328, 1.11.1996, page 23), Commission Decision 99/288/EC of 29 July 1998 (OJ L 116, 4.5.1999, p. 5) and Commission Decision 2000/600/EC (OJ L 256, 10.10.2000, p. 21).

(4) Case 250/83 Finsider v Commission [1985] ECR 131, paragraph 8.

(5) Case C-80/95 Harnas & Helm CV v Staatssecretaris van Financiën [1997] ECR I-745, paragraph 15.

(6) Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraphs 18 and 19.

(7) OJ L 195, 29.7.1980, p. 35. Last amended by Directive 2000/52/EC (OJ L 193, 29.7.2000, p. 75).

(8) "Forced administrative liquidation" (liquidazione coatta amministrativa) is a special winding-up procedure that replaces application of the ordinary rules on bankruptcy.

(9) Law No 448/01 introduced the distinction between "admitted" and "relevant" sectors. Originally, Decree No 153/99 covered only "relevant sectors", more generally defined as scientific research, education, art, health, cultural and environmental promotion and conservation, and assistance for vulnerable social groups. The difference between the past and the present rules is that the new provisions tend to force banking foundations to define more accurately their scope of activity. Some new areas of activity can now be chosen as "relevant sectors".

(10) Within the area of protection and development of individuals, the Law lists: family and related values, growth and development of young people, education and training, including the acquisition of publications for schools, voluntary and charity work, religion and spiritual development, assistance to the elderly and civil rights. The area of social security includes: crime prevention, public safety, food security and high-quality agriculture, local development and public housing, consumer protection, civil protection, public health, preventive and rehabilitative medicine, sport, prevention of drug addiction and rehabilitation of addicts, and psychological and mental conditions.

(11) Law No 448 of 28 December 2001 has added that the capital has to be managed in a way that is consistent with the nature of the foundations as non-profit bodies that operate according to principles of transparency and morality.

(12) Law No 448 of 28 December 2001 allows foundations to entrust their holdings in the "transferee" bank to an outside company specialised in investment management (società di gestione risparmio - SGR). They can thus delay the sale of their controlling stake in the bank by three years. A foundation cannot interfere in the management of its assets and, regarding its shareholding rights, can only give indications regarding the decisions of the extraordinary general meeting where provided for under Article 2365 of the Italian Civil Code.

(13) See Cases C-60/90 Polysar Investments Netherlands v Inspecteur der Invoerrechten [1991] ECR I-3111, C-333/91 Sofitam [1993] ECR I-3513 and C-142/99 Floridienne and Berginvest [2000] ECR I-9567.

(14) Case C-35/96 Commission of the European Communities v Italian Republic [1998] ECR I-3851, paragraph 36.

(15) Joined cases C-115/97 to C-117/97 Brentjens' Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-6025, paragraphs 85 and 86.

(16) Letter of 16 January 2001 in reply to the Commission's letter of 25 October 2000 informing the Italian Government that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty.