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Editor in chief: Angelo Scorza
02/07/18 09:26

D’Agostino: “Here is the line of defence to protect Italian ports in Brussels”

Assoporti's presidents thoroughly illustrates the reasons why Italian Port Authorities can't be liable to income tax

Zeno D'Agostino

Italy is currently responding Brussels about latest objection raised by the European Commission regarding an assumed subsidy regime developed by the Italian Government to support Sea Port Authorities (AdSP), which are not liable to pay income tax (art 72 and subsequent amendments of  “TUIR – Consolidated law on Income Tax” – D.P.R., 22/12/1986 n° 917, G.U. 31/12/1986).

As published on the Italian Transport and Logistics Association's website (Confetra), Assoporti’s President Zeno D'Agostino illustrates that “according to the European Commission, AdSP's different tax regime compared to other Italian enterprises would be an unjustifiable 'selective advantage' which favours the Authorities.

The Commission's behaviour reproduces – continues D'Agostino – the same actions already taken in other EU countries (Belgium, France and The Netherlands), although AdSP's tax regime (and generally the whole management 'regime') in Italy is totally different from the one enforced in other member states subject to the Commission's decisions regarding tax regime on port Authorities”.

While taking the defence of domestic ports, the President of the Italian Association points out that “in other EU states which, so far, were subject to the Commission's measures, Port Authorities not only are entrusted to manage ports (they often also own the areas they are located on), but are also operating companies providing regularly paid port services.

Furthermore these authorities do not charge fixed rates, set by law, but usually negotiate them (being in fact subject to VAT, as not happening in Italy) with their customers.

The aforementioned substantial differences are key elements on the basis of which Assoporti is opposing the Commission's decision, illustrating his line of defence to protect domestic interests.

“First of all, we'll support the fact that not only AdSP's tax regime in Italy is not a 'selective advantage' but it's not even listed as ' state subsidy’ (art. 107 and subsequent amendments of  the ‘TFUE – Treaty on the functioning of the European Union). We recall the principles on the basis of which state subsidies can exclusively be granted enterprises, while in Italy AdSPs – unlike other European countries – are  not enterprises but public non-economic institutions with regulatory functions in compliance with Law n. 84/1994, preventing whatever business, starting from port services”.

AdSPs, definitely don't offer assets and services on the market but are not even entitled to fix State fees which they exclusively collect by concessionaires on behalf of the State which owns port areas.

According to Assoporti, AdSPs do not provide any service by granting concessions on state properties as shown by the fact that annual fees are not liable to VAT, in compliance with the law stating that taxes can't be paid on taxes.

Here comes the lack of power of the Commission to include state-property fees, charged by the Italian state, among 'taxable' services, because it would be an obligation affecting concessionaire companies.

Furthermore, “the objected regime doesn't imply a financial burden for the State: by law, AdSPs' resources must be invested by AdSPs for undertaking their institutional commitment and, being local branches, they produce consolidated financial profit as other local institutions.

For the above reason AdSPs' debts are in fact state liabilities and charging higher taxes on concessionaire companies a simple money transfer would occur and payments couldn't be used to implement their institutional mission.

Should the scenario envisaged by the Commission be enforced, the State should increase its support to AdSPs, as they would do with a Region, Municipality or other administration”.

Regarding ‘unfair competition’ recalled by Brussels, against unidentified “not subsidised” competitors, D'Agostino adds that “AdSPs in Italy are subject to Art. 74 TUIR (‘State and Public institutions’) and not to Art. 73 as other tax payers. If the Commission had thoroughly analysed papers they would have acknowledged that AdSPs in Italy are subject, as non-economic public institutions, to the same tax regime as other administrations managing state properties.

If the analyses had been performed appropriately, the risk of 'selective' help would have appeared wholly unjustified. On the other hand, it's evident how current regime is no way affecting fair competition nor the relations among member states, considering that 'assumed unfair competition' can occur in a free market while the Italian State holds exclusive management of property and administration of port properties”.

Finally, Zeno D'Agostino states that the European Union continues being the keystone in a system which grants  fair economic regulations in Europe”.