Italian Assoporti and the AdSP illustrate their resource near the Court of the EU on the taxation of the ports



The position of the EU commission with respect to the taxation of the organisms is clear for a long time that the ports of the EU govern, than - according to Brussels - whereby exercises activity of economic type must be subordinates to the European norms on the aids of State and, in the event that economic activities operate exactly, they must be subject to the income taxes of the societies.

It is clear from equally and still more time the opinion of Italy on the issue: the Italian Harbour Authorities, now become Authority of Harbour System (AdSP), operate for the State administering for its account the state property areas of the ports, included the activity of collection of the concession canons there, and are all fuorché of the enterprises whose lead EU must fall back under the norms on the state aids.

At the end last year the EU commission has asked Italy to cancel the exemption for the AdSP from the taxes on the societies, lacked subjugation that would represent an aid of incompatible State with the communitarian norms(on 4 December 2020). Order against which the Italian Authorities of Harbour System have been lined up compact that, with the coordination of the Association of the Italian Ports (Assoporti), have deposited near the Court of the European Union a resource asking the cancellation for the decision of the Commission. The motivations of the resource are explained today by the president of Assoporti, Daniele Rossi, with the presidents of the AdSP who specifically have dedicated themselves to the composition of the resource, Massimo Deiana and Ugo Patroni Griffi, assisted from a team of lawyers constituted by lawyers Francesco Munari, Stefano Zunarelli, Gian Michele Roberti and Isabella Perego whom the resource has introduced.

For the presidents of the AdSP, the resource does not represent a battle against the EU, but for a corrected application of the communitarian norms and more rather against the decision assumed from the EU commission that - it has emphasized Deiana - "has curled a series of clamorous interpretative errors", between which most obvious - it is explained in the resource - it is that "to ignore the pubblicistica nature of the chosen model of harbour organization from the Italian legislator".

In the resource one various evidences that the Member States of the European Union second have organized the harbour field systems of different governance a lot and that, from the other Member States (France, Belgium and Holland) to which the EU commission it has sent analogous decisions about the regime of taxation of the limited companies that in such States the ports commercially manage, arriving sometimes - it is emphasized - to carry out harbour operations and services, "Italy has classified friendly publishes, in coherent and systematic way, every aspect legacy to the harbour field: the property of the assets, pertaining to the Federal property out of stock of the State, the administration of same, the classified one in via exclusive right to the AdSP territorial competent, the collection by the AdSP of the state property canons by the concessionaires, that they are real taxes paid from the concessionaires directly to the State and solo collected from the AdSP".

According to the recurrent ones, the Commission would garble also "the role and the prerogatives of the AdSP that, in the Italian ordering, belong under the organic and functional profile to the State". It is observed in fact that, "as Public Administration, to the AdSP is recognized the same prerogatives that are up to the other infrabeen entities them, as the Regions or the Municipalities, to which the State confers the task to administer determined territorial areas". E regions other local authorities who "manage the assets publics with the same modalities applied from the AdSP. For example - it is found - the access to the private ones is afforded by means of concession - and not with a lease, as it supports the Commission - and against the contextual collection of a tax for the occupation of the public good, collected from such territorial agencies".

To warning of the recurrent ones, "he is therefore logical and coherent that AdSP, Regions, Municipalities and the other infrabeen entities tied them to the State from an organic and functional relationship are subject to the same regime under the profile of the tax of the societies. In fact, second the Italian fiscal discipline - it remembers - nobody of these subjects is subject to IRES".

A central node of the issue is that of the paid canons of concession from the harbour terminalisti for being able to have use of the areas on which they exercise their activities. The EU commission considers that who has the property of the areas, little imports if it is a private one, a public body or the State, which lessor must be subject to the income taxes of the societies. According to Assoporti, the AdSP Italian and the law firms that have assisted to them, instead, draft of a wrong interpretation that on behalf excludes the fiscal nature of the state property canons and the harbour taxes collected by the AdSP of the State. The recurrent ones emphasize that in the decision of Brussels, in fact, "it is not recognized that, in the Italian ordering, the state property canons (and, to greater reason, the harbour taxes) are not a fee of an economic activity (nonexistent), but the performance of a tax, whose amount is fixed directly from the second law fixed parameters legacies to the surface of the granted area that owner of the good is paid by the concessionaire to the State". The recurrent ones emphasize that the AdSP "are limited on behalf to collect such tax of the State and, therefore, not even of it does not negotiate the amount with the interested subjects".

It is specified moreover that, with regard to, Law court of the EU and EU commission "have constantly considered that the presence of a directly fixed canon from the enterprise that manages an infrastructure is unavoidable condition to the aims of its qualification as enterprise: if the fee only is negotiates, in fact, it is in the presence of an economic activity". "This not verification if of species", they newly clarify the recurrent ones that emphasizes as "the fiscal nature of the state property canons and of the harbour taxes however confirmed from the fact that on the same ones is not due the VAT, based on the general principle for which taxes are not paid on the taxes". They observe moreover that, "on the other hand, in all the States other members to which the Commission it has contested the exemption from the taxation of the companies that manage the ports there, the same fees that the riscuotevano from the harbour user were, incoherently, subjects to VAT".

"The fixed measure of the canon for all the concessionary aspirants - the recurrent ones still emphasize - demonstrates that the AdSP cannot modify the price of the "assets" that, second the erroneous formulation of the Commission, they would offer on the "market" in order to stimulate subjects third party to use the port that falls back under their territorial competence". According to Italian Assoporti and the AdSP, "that confirmation ulterior a serious error store clerk from the appealled decision: the rules in matter of aids of State - they explain - are only applied in the fields opened to the competition that, in fact, must be prejudiced from the presumed aid, to pain of the inapplicabilità of the norms on the aids. Since Italy is instead classified in exclusive right is the property is the administration of the harbour state property assets, and therefore it has not opened to the competition the harbour field - moreover the recurrent ones find opening wide the doors to the most varied convictions are relatively to the meaning of "competition" are to that of "harbour field" - art. the 107 TFUE is not applicable to the AdSP, giacché with regard to their activities does not exist some "market" neither not even potential competition. And in fact the Commission has not characterized some concurrent enterprise of the AdSP, neither could. Not being to us a market, they cannot be effects you distorted you to us of the competition on the same one".

"At last - the recurrent ones conclude - equally that part of the appealled decision is roved in which the Commission it considers that the exemption of the AdSP from the income tax of the financial societies would determine a burden borne by the State. In fact, the entrances of the AdSP, included the taxes there that they collect on behalf of the State, are subject to destination tie and are finalized to afford the realization of the institutional mission of the AdSP, i.e the administration of a part of territory on behalf of the State. Hypothetical corresponded how much for a reason or purpose of income tax therefore would be compensated by the State with greater contributions to the operation of same the AdSP that cannot stop their administrative activity (to the pairs, once again, of E regions Municipalities)".

Introducing the motivations of their resource, Assoporti, the AdSP and the team of lawyers they have found that "in absence of a harmonization at the level of the Union”, “the Member States second have organized the harbour field systems of different governance a lot”. It would come to reply that the initiatives of the EU commission are own understandings to introduce that harmonization between the different model currently of governance harbour in vigor in the EU. A harmonization that - it could, to tell the truth, also be observed - would go searched through initiatives agreed from the legislative organ of the European Union rather than through “you decree governmental” emitted from the executive organ of the EU.

Harmonization that, being to the words of the team of lawyers that has assisted Assoporti and the AdSP, parrebbe to be arduous much to reach, at least by Italy. It has been spoken, in fact, of a real Copernican revolution necessary in order to evidently change to the current Italian model of management of the ports, intending in this case that of Copernico as a decline rather than an evolution.

Still more tranchant the opinion than Ugo Patroni Griffi: “the model neither meat neither fish - it has supported - does not work”.

He seems to understand that, or the European judges receive the theses of Italy, or collapse the world. Nevertheless he has not happened not even with Copernico.

We had already understood with the reactions to a our editorial on the “wall against wall” between Italy and EU commission on the taxation of the ports(on 7 December 2020). More than a issue than model of governance, draft of an ideological issue, where for ideology one refers to us to the convictions on the existence of God. From which: ideologies that are immutable.

Whoever writes is convinced that the truth is changing and from europhile, stealing the words to the Zarathustra di Nietzsche, the homelands of the fathers and the grandfathers would invite rather to being outcast from all and to love the earth of the sons.

Bruno Bellio