Luxembourg, 02/12/2003 (Agence Europe) - The allocation of a proportion of port charges to an undertaking responsible for the handling of port goods constitutes state aid if it is not linked to public service duties, the costs of which have been clearly defined beforehand, indicated the Court of Justice in its Enirisorse ruling.
Enirisorse loads and unloads goods in the port of Cagliari (Sardinia, Italy) without using the services of the Azienda dei mezzi meccanici e des magazzini, the state body responsible for managing the mechanical installations and the state's storage sites. According to regulations Enirisorse should nevertheless pay a tax on the loading and unloading of goods, from 0.01 to 0.05 Euro per metric tonne. This tax is levied in all the country's ports, and the revenue is paid, by two-thirds, to the Aziende (a total of six in the country) for the fulfilment of their duties, with the remainder going to the state.
The Ministry of Finance sent several injunctions for the payment of this tax as foreseen by Italian law N° 355/76 and enforced by the 1977 decree signed by the President of the Italian Republic. Enirisorse refused. It felt that the decree was illegal as it was contrary to Community law. The Cagliari Tribunal disagrees, the Cagliari Court of Appeal agrees with this decision. The Italian Corte de Cassazione sent the case to the European Court of Justice in Luxembourg.
Firstly, the Court notes that the operating of a commercial port does not necessarily involve the performance of public service duties: nothing passed on by the Corte de Cassazione indicates that the Aziende have been entrusted with public service duties nor 'a fortiori,' that this has been clearly defined, adds the Court, which continues: if the Aziende are unable to demonstrate that they have nevertheless been made responsible for a public service duty and that two thirds of the revenue from this tax is paid to it in exchange for the undertaking of this duty, this tax constitutes a state aid.
The European judges also summon up that for a tax to be legal it must compensate the provision of a clearly defined public service duty and not constitute a simply source of revenue. The parameters for the calculation of this compensation must be set out beforehand, in a transparent and objective manner.
Enirisorse and the European Commission argue that this, significant, share of the port charges paid to Azienda de Cagliari constitutes state aid, in that is damages competition. The Italian government will place emphasis on the socio-economic intention of this tax, which is to guarantee the port's survival.