The Council of State accepted, through a ruling, the appeals against ADM and MEF presented by various betting concessionaire companies, which had appealed the ruling with which the TAR of Lazio - Rome Office - had gathered and rejected, among others, " the appeals proposed by the same for the annulment of the directorial determination prot. n. 10337/RU of 5 January 2023, with which the Customs and Monopolies Agency had ordered "the cancellation, in self-defense, pursuant to Law 7 August 1990, n. 241, article 21 nonies, of the Directorial Determination prot. n. 5721/RU of 8 January 2022 and the notes, sent to the concessionaires, inviting them to make payments of the sums intended to feed the Fund for the relaunch of the national sports system, calculated in application of the criteria set out in said Directorial Determination", as well as the individual notes with which the same Agency had communicated to them the renewed quantifications of the additional amounts due as payment of the amount of 0,5 percent of the bet collection referred to in the art. 217, of the legislative decree of 19 May 2020, n. 34 (in Supplement Ord. n. 21 to the Gazz. Uff., 19 May 2020, n. 128) converted, with amendments, by law 17 July 2020, n. 77, containing the urgent measures regarding health, support for work and the economy, as well as social policies related to the COVID-19 epidemiological emergency (so-called RELAUNCH DECREE)".
“In particular – we read in the sentence -, the harmful effect for the appellant companies arose from the fact of being considered taxable subjects of indirect tax at the percentage of 0,5% on the overall revenue deriving from the collection of bets for the reference period , instead of only up to the maximum thresholds envisaged for the financing of the Fund for the relaunch of the national sports system (40 million euros for the year 2020 and 50 million euros for the year 2021).
The dispute, therefore, it is best to clarify at the outset, does not concern the payment of the amounts due, for the reference period, until the aforementioned allocation limits are reached, necessary to cover the cost of establishing and operating the Fund (all amounts already fully paid and of which the concessionaires do not contest the debt), but instead concerns the additional amounts requested from them in payment, always calculated at a percentage of 0,5% for the reference period, but on all the overall revenues from the collection of bets, subject to regardless of whether the Fund's financing thresholds have already been reached.
2. The appeals were entrusted to multiple complaints of violation of the law and excess of power, including, in particular: a) violation of the limits that the law imposes on the PA for the exercise of the power of self-defense pursuant to art. . 21-nonies of law no. 241 of 1990); b) the violation of the principle of legitimate expectations, as the Customs and Monopolies Agency (hereinafter, the Agency) took more than two years to overturn an interpretative practice that had now become consolidated regarding the interpretation of the legislation introduced by the 'art. 217, paragraph 2, legislative decree no. 34/2020; c) the violation of the procedural guarantees referred to in articles. 7 and following of law n. 241 of 1990; d) the lack of investigation and motivation; e) the erroneous interpretation of the aforementioned rule contained in the art. 217, paragraph 2, legislative decree no. 34/2020, whose sole declared purpose would be, in the opinion of the appellant companies, to set up and finance a special sports-saving fund and not, instead, as claimed by the Administration, also to introduce a further general tax levy instrumental to unspecified public finance needs unrelated to the financing of the aforementioned fund; g) the incorrect identification of the taxable base of the contribution due, as carried out by the contested directorial determination of 5 January 2023, as it is in conflict with the taxable base identified by the legal basis referred to in the aforementioned art. 217.
The appeals also requested, in the alternative, in the case of failure to accept the complaints thus presented, the preliminary ruling on interpretation pursuant to art. 267, TFEU, or the referral to the Constitutional Court of the question of constitutional legitimacy raised therein.
3. The Lazio Regional Administrative Court examined and rejected all the complaints made, also justifying the non-existence of the conditions for referring the preliminary questions to the higher courts, however compensating the costs of the proceedings.
4. The appellant companies have re-proposed all the original grounds of appeal at first instance, articulating them as specific complaints against the heads of the sentence affected pursuant to art. 101, cpa, thus essentially devoting all the original matter of the dispute to today's knowledge.
5. The Customs and Monopolies Agency and the Ministry of Economy and Finance resisted the appeal, still insisting on the legitimacy of their actions and the consequent need to confirm the first instance sentence.
6. With precautionary order no. 3517/2023, the Section deemed the conditions to suspend the enforceability of the appealed sentence to exist, "also having regard, in balancing the opposing interests, to both the general public interest in that the collection activity is exercised within a framework of plausible certainty, also to avoid unnecessary expenditure of administrative activity in case refunds were to be made, and to protect the business activity, given the huge amount of the sums requested and the impact that they would have on the financial statements of the companies involved ”.
7. The case was discussed by the parties and was held for decision by the Board at the public hearing on 5 December 2023, and was finally decided in chambers on 19 February 2024 thus deferred pursuant to art. 75, paragraph 2, cpa.
8. As a preliminary matter, all appeals lodged separately against the same sentence must be brought together pursuant to art. 96, paragraph 1, cpa.
9. On the merits, given the absence of a precise ranking order of the complaints and there being specific reasons of procedural economy, the Board believes that, according to the principle of the most liquid reason, the ground of appeal must be examined with logical-legal priority , reiterating the corresponding first degree reason, which, if founded, would lead to the annulment of the contested acts with the maximum degree of satisfaction for the legal claim made by the appellant companies.
In the opinion of the Board, for obvious reasons linked to the very existence of the legal prerequisite for taxation, the main legal question is whether, beyond the alleged failure to observe the participatory procedural guarantees and the complained of non-existence of the conditions, especially temporal, to give rise to the 'administrative self-defence, whether or not there is, in essence, the legal basis by virtue of which the Financial Administration and, on its behalf, the State, now demand payment of the aforementioned additional amounts from the appellant companies.
The interpretative theses that stand in the way rest, in fact, on the distinction between the position defended by the Attorney General of the State and accepted by the contested sentence, according to which the maximum limit on the allocation concerns only the part of the withdrawal intended to feed the Fund and not also the maximum amount of the levy to which the economic operators in the sector would be subject, and that advocated by the appellant companies, according to which the limit on the allocation of the Fund would also act as an implicit limit to the levy, by virtue of the teleological link imposed by the emergency decree on the levy same for the pursuit of the specific solidarity objective consisting in providing the Fund with only the resources necessary to be able to operate.
10. Since the underlying question is controversial, the Board believes that the logical-legal reasoning on which the first judge centered the rejection of the appeals cannot be shared, rather, on the contrary, it must be held that, between the two interposed hermeneutic options , the one which adheres to the regulatory provisions according to the principle of legality and which responds to the underlying ratio legis, is the thesis advocated by the appellant companies.
In particular, in the opinion of the Board, the legal considerations that can be drawn first of all from the national regulatory system, and then also from the Euro-unitary one, on the basis of the principles of the Treaties, as constantly interpreted by the jurisprudence of the Court of Justice.
11. First of all, therefore, it is necessary to start from the internal regulatory data.
As mentioned above, the dispute between the appellant companies and the State Financial Administration concerns the calculation of the tax introduced by the art. 217, of the legislative decree of 19 May 2020, n. 34 (in Supplement Ord. n. 21 to the Gazz. Uff., 19 May 2020, n. 128) converted, with amendments, by law 17 July 2020, n. 77, containing the urgent measures regarding health, support for work and the economy, as well as social policies related to the epidemiological emergency from COVID-19 (so-called RELAUNCH DECREE).
In particular, said article provided that:
“1. In order to deal with the economic crisis of entities operating in the sports sector caused by the measures relating to the containment and management of the COVID-19 epidemiological emergency, the " Fund for the relaunch of the national sports system" whose resources, as defined by paragraph 2, are transferred to the autonomous budget of the Presidency of the Council of Ministers, to be assigned to the Sports Office for the adoption of support and resumption of sports movement.
2. From the date of entry into force of this decree and until 31 December 2021, a share equal to 0,5 percent of the total collection from bets relating to sporting events of all kinds, including in virtual format, carried out in any way and on any medium, both online and through traditional channels, as determined on a quarterly basis by the body appointed by the State, net of the portion relating to the single tax referred to in Legislative Decree 23 December 1998, n. 504, is paid into the state budget and remains vested in the treasury. The financing of the Fund referred to in paragraph 1 is determined within the maximum limit of 40 million euros for the year 2020 and 50 million euros for the year 2021. If, in the years 2020 and 2021, the amount of revenue corresponding to the percentage referred to in this paragraph is lower than the sums registered in the Fund pursuant to the previous period, the quota referred to in article 1, paragraph 630 of law 30 December 2018, n.145 is correspondingly reduced.
3. By decree of the Delegated Authority for sports, in agreement with the Minister of Economy and Finance, to be adopted within 10 days from the date of entry into force of this decree, the management criteria of the Fund referred to are identified to the previous paragraphs.
The rule entered into force on the same day as its publication in the Official Journal, i.e. on 19 May 2020.
12. It is then necessary to pay attention to the administrative events that occurred during the first application phase.
With resolution no. 307276/RU of 8 September 2020, the Customs and Monopolies Agency had defined the methods for calculating and applying the amount of 0,5 percent for individual types of bets, as well as the terms for payment of the sums to be paid by the concessionaires, on a quarterly basis and equal to the sum of the amounts calculated monthly for each type of game.
In particular, art. 6, had provided that "If before 31 December of each year the maximum limit of 40 million euros for the year 2020 and 50 million euros for the year 2021 is reached respectively, the calculation of the amount is limited to the month in which said limit is reached and the monthly amount is recalculated in proportion to the amount recorded in excess".
Subsequently, with circular no. 12 of 12 March 2021, the Agency, on the basis of the limit referred to in the aforementioned article 6, had explained the methods for calculating the monthly amounts due per bet, regulating rounding, defining the criterion for the "Determination of the amount referring to the month in which the annual limit is reached", as well as the procedure to be followed in the case of "Reaching the annual limit referred to in Article 6, if it is necessary to integrate or reduce the calculated amount", and providing the "total amounts calculated by ADM for the second and third quarters of 2020" to reach the aforementioned maximum ceiling (relating to 2020) of 40 million euros.
The element that characterized and united all the aforementioned provisions was the implicit affirmation of the principle of parallelism between the amount of the tax levy and the limit on the allocation of the Sport Saving Fund, in the sense that the maximum ceiling envisaged to provide the Fund with resources necessary to operate, set at 40 million euros for the year 2020 and 50 million euros for the year 2021, also served as an implicit limit to the tax levy, through the main mechanism of the proportional re-parameterization of the amount monthly due.
In this way, the tax claim did not have as its object the payment of the entire quota equal to 0,5 percent of the total betting collection, but rather, within the scope of said quota, through the monthly recalculation on a proportional basis, the payment necessary to provide the Fund with the expected allocation, with the consequent possibility of recording even excess sums.
13. Finally, it is necessary to consider what happened immediately before the issuing of the contested resolution no. 10337/RU of 5 January 2023, containing "the cancellation, in self-defense, pursuant to Law 7 August 1990, n. 241, article 21 nonies, of the Directorial Determination prot. n. 5721/RU of 8 January 2022 and of the notes, sent to the concessionaires, inviting them to make payments of the sums intended to feed the Fund for the relaunch of the national sports system, calculated in application of the criteria set out in said Directorial Determination".
In this regard, it is important to point out that the directorial determination to which reference is made, to be annulled as a matter of self-defense, actually concerned a different event which took place in relation to another dispute, which also arose between certain operators in the sector and the Agency, and always connected to the methods of calculating the levy in question, but this time in the specific sector of the so-called. Betting Exchange, which was then regulated with the aforementioned resolution no. 5721/RU of 8 January 2022.
Well, it was precisely from this background that the interpretative revirement of the Agency began, which, finding itself in the situation of having to redefine the new calculation discipline for the Betting Exchange following the administrative judgment formed in the meantime in accordance with it unfavorable, then in effect decided to re-verify in an overall sense the legal compliance of its actions regarding the methods of calculating the levy pursuant to art. 217, decree law n. 34/2020.
It so happened that, following discussions with the State General Accounting Office and the Court of Auditors - Central Section for control over the management of State administrations, the Agency reinterpreted the aforementioned tax legislation and applied it, from then on forward, in a diametrically opposite sense compared to the past, i.e. in the sense that the maximum limit of 40 million euros for the year 2020 and 50 million euros for the year 2021 should not be understood as referring to "the maximum amount of the sums owed by the taxable subjects of the levy but rather to the part of the levy intended to feed the "Fund for the relaunch of the national sports system", with the consequence that the concessionaires are required to pay in full the rate of 0,5 percent of the collection, calculated according to the methods expressed in article 3 of the new determination, therefore no longer allowing the monthly amount due to be recalculated proportionally to the achievement of the expected allocation limits, as was instead established by the art. 6 of the original determination n. 307276/RU of 8 September 2020, a provision which, in fact, was no longer reproduced with the contested determination of 5 January 2023.
14. On the basis of this, in the opinion of the Board there are multiple elements, both textual and systematic, such that there should be no doubts regarding the fact that the only correct interpretation of the provision contained in the art. 217, decree law n. 34/2020 is the one that the Financial Administration followed during the initial application of the rule, which was then abandoned by the same and replaced by the one, opposed and contested here, to be considered not compliant with the law, as the necessary 'legal basis' of the tax claim.
15. The art. 12 of the Provisions on the law in general (so-called Pre-laws), entitled "Interpretation of the law", provides that "When applying the law, no other meaning can be attributed to it than that made clear by the specific meaning of the words according to their connection , and by the intention of the legislator.
If a dispute cannot be decided with a specific provision, consideration shall be given to the provisions which regulate similar cases or similar matters; if the case still remains doubtful, it is decided according to the general principles of the legal system of the State”.
In order, therefore, the hermeneutic canons that the interpreter must apply are:
a) the literal interpretation revealed by the actual meaning of the words;
b) the systematic interpretation of words according to their connection;
c) the analogia iuris and the analogia legis, for similar cases or analogous matters;
d) if the case still remains doubtful, the general principles of the legal system of the State.
16. On a textual level, the legislator has clearly stated his intention to introduce urgent measures regarding health, support for work and the economy, as well as social policies related to the COVID-19 epidemiological emergency, with the aim of balance the economic sacrifice imposed on certain economic operators subjected to a new form of indirect taxation (in this case, the betting collection concessionaires), with the higher, general and imperative needs of economic and social solidarity, indispensable not so much to support in general the economy, but precisely to relaunch specific sectors of the economy seriously affected following the restrictive measures and closures of activities imposed by the legislation to combat COVID-19, including those belonging to sports and amateur associations.
Literally, in fact, the first paragraph of the quote. art. 217 provides that the resources of which, as defined by paragraph 2, are transferred to the autonomous budget of the Presidency of the Council of Ministers, to be assigned to the Sports Office for the adoption of measures to support and restart the sporting movement.
Still on a textual level, the heading of the article in question must be considered, entitled "Constitution of the "Fund for the relaunch of the national sports system"", also in this case establishing a certain functional link between the reason for the withdrawal and the aim pursued , i.e. not the pursuit of general and unspecified reasons of public interest, but precisely the specific aim of showing solidarity with the national sports system, the relaunch of which the establishment of the Fund is responsible for.
Still on a textual level, it is also true that the second paragraph of the same art. 217 provides that "(d)on the date of entry into force of this decree and until 31 December 2021, a quota equal to 0,5 percent of the total collection from bets relating to sporting events of all kinds... net of the quota referring to the single tax referred to in Legislative Decree 23 December 1998, n. 504, is paid into the State budget and remains acquired by the treasury", but the Board believes that this expression must necessarily be correlated and read in connection with the provisions contained in the first paragraph and with the overall meaning of the measures emergency measures introduced by the decree on an urgent basis, as illustrated above, with the consequence that the exegesis according to which the maximum limit on the allocation concerns only the part of the withdrawal intended to feed the fund is neither sustainable nor acceptable, but not also the maximum amount of the levy to which the economic operators in the sector are subjected, since the resources referred to in the first paragraph to provide the Fund with the necessary means to be able to operate are precisely those and only those found according to the methods described by paragraph 2 of the same art. 217, and that the solidarity purposes expressly envisaged by the law are only those which concern the adoption of measures to support and resume the sporting movement, and not other needs which the Treasury Defense has also put forward as "homologous purposes", with the formula however not better specified.
17. On a systematic and overall level, therefore, the principle of law must be established according to which, even if the legislator has not made use of literal expressions such as to verbally explain the concept that the allocation limit of the Fund also functions as a limit on withdrawal, it is however, it is clear and incontrovertible that the aforementioned principle can be derived on the basis of the intentio legis, as revealed in the epigraph that gives the title to the decree-law; of the ratio iuris pursued, as also made clear by the heading of the legislative article; and of the necessary connection between the provisions contained in the first and second paragraphs, which cannot be read and interpreted in an isolated and atomistic way from one another, but which rather require a coordinated reading according to the principles of legal logic.
18. There is then a further consideration to be made.
The need to relaunch the sports sector, and in particular the world of small sports and amateur associations that operate there, was a need so felt by the State that it led it to introduce, in the last part of the second paragraph of the cit. 217, the provision that "If, in the years 2020 and 2021, the amount of revenue corresponding to the percentage referred to in this paragraph is lower than the sums registered in the Fund pursuant to the previous period, the quota referred to in the article is correspondingly reduced 1, paragraph 630 of law 30 December 2018, n. 145”.
This event, as has already been widely clarified, did not occur in the case under examination, in fact giving rise to today's controversy precisely from the fact that the Fund's allocation thresholds were largely reached.
The consideration of the aforementioned eventuality, however, is useful for understanding on an exegetical level, on the basis of counterfactual logical reasoning, what exactly would have happened if this had occurred.
Well, on the basis of the aforementioned express provision of the law, it would have happened that the State would have integrated the foreseen allocation limits, making the corresponding reduction of the quota referred to in article 1, paragraph 630 of law 30 December 2018, n. 145.
Also in light of this, there is therefore no reason to see the reason for subjecting the State concessionaires to a contribution effort for solidarity needs (it must be reiterated, not contested by them within the limits necessary to reach the Fund's allocation thresholds) greater than that at which the State itself would undergo in the event that the aforementioned thresholds were not reached, since in this case it is certain, by express provision of law, that the corresponding reduction of the quota referred to in article 1, paragraph 630 of law 30 December 2018, n. 145 would operate only until the thresholds are reached, and no further.
Which further confirms that the only possible reading of the regulatory provision contained in the art. 217, decree law n. 34/2020, in the connection between the first and second paragraph, is exclusively that which rests on the principle of parallelism between the withdrawal and the allocation of the fund, with the consequence, as a definitive corollary, that the limit on the allocation of the Fund also represents the necessary implicit limit to the withdrawal, on the basis of the teleological link pursued by the legislator.
19. Deriving from the considerations just illustrated, the complete and satisfactory acceptance of the legal reasons presented with today's appeals would not be necessary in itself, indeed it would actually become recessive due to the lack of the assumption of relevance, the examination of the interpretative preliminary questions (constitutional and European) correctly presented by the appellant companies only in the alternative, i.e. in the case in which the Board had reached the opposite decision.
Furthermore, against the background of these issues raised, the corollary of the so-called general "principle of conservation" which permeates the legal system clearly stands out, according to which between two possible plausible interpretations, the Judge is required to favor the one that leads to the statement that the applied rule is immune from errors compared to that which may present profiles of incompatibility with other values of the legal system.
It is known that the said principle has, over the years, been evoked several times by the Judge of Laws (in this regard, the canon enunciated in sentence no. 356 of 1996 is famous, and then repeated several times starting from sentence no. 147 of 2008 and made with the successful expression "in principle, laws are not declared constitutionally illegitimate - or a provision cannot be considered constitutionally illegitimate - because it is possible to give them unconstitutional interpretations - and some judge decides to give them -, but because it is impossible give constitutional interpretations".
The same principle is also reflected, albeit with less frequency, in the jurisprudence of the CJEU (EU Court of Justice, Grand Chamber, 8.11.2016, n.554, recitals 58 and 59 "58 Also based on consolidated jurisprudence, even if the Framework decisions, pursuant to Article 34(2)(b) EU, cannot have direct effect, but their binding nature entails an obligation on national authorities, in particular national judges, to interpret the law in accordance with the law. national (see judgment of 5 September 2012, Lopes Da Silva Jorge, C-42/11, EU:C:2012:517, paragraph 53 and the case-law cited therein). 59 In applying domestic law, the national judge called upon to interpret the latter is therefore required to do so, as far as possible, in light of the letter and purpose of the framework decision in order to achieve the result it seeks. This obligation of compliant interpretation of national law is inherent in the system of the FEU Treaty, as it allows national judges to ensure, within the scope of their respective competences, the full effectiveness of Union law when resolving disputes submitted to them (see judgment of 5 September 2012, Lopes Da Silva Jorge, C-42/11, EU:C:2012:517, paragraph 54 and case-law cited therein).".
From this perspective, if not for the purposes of preliminary ruling, it is therefore appropriate to carry out some final considerations on the level of integration of our legal system into the European one, in light of the principles of the Treaty, as interpreted with a consolidated exegetical direction by the Court of Justice, as proof of the now reached level of maturity, clarity and adequacy, in the gaming and betting sector, of the interpretative principles developed by the European judge, so that every national judge can immediately apply them, knowing the Court's point of view on the matter.
According to the consolidated jurisprudence of the Court, all measures which prohibit, hinder or make less attractive the exercise of the freedoms guaranteed by Articles 49 and 56 TFEU must be considered as restrictions on the freedom of establishment or the freedom to provide services (judgment of 22 January 2015 , Stanley International Betting and Stanleybet Malta, C-463/13, paragraph 45 and the case law cited therein; judgment of 20 December 2017, no. 322, paragraph 35).
Differently from the case examined by the ruling of 22 January 2015, but similarly to the one covered by the ruling of 20 December 2017, even in the case discussed here the national legislation did not impose new conditions on the concessionaires for carrying out the activity (e.g. extensions of the contract) , but rather introduced a new tax discipline, albeit limited, in this specific case, to a two-year period (years 2020-2021).
Although the matter of taxation falls within the competence of the Member States, a constant jurisprudence of the Court states that the latter must exercise this competence in compliance with Union law and, in particular, the fundamental freedoms guaranteed by the Treaty on the Functioning of the European Union (judgment of 11 June 2015, Berlington Hungary and Others, C-98/14, paragraph 34).
Even in the absence of a specific European regulation of derived source, the provisions of the Treaty which protect both the freedom of establishment (which includes access to autonomous activities and their exercise pursuant to art. 49) apply, and the freedom to provide services (art. 56) which implies, among other things, the free carrying out of business activities, as an economic business activity is highlighted.
In order to establish when these European freedoms are violated, it is necessary to first ascertain whether the national measure has led to a restriction of the aforementioned freedoms. Secondly, where the restriction actually exists, it is necessary to establish whether it can be justified in light of both specific limits expressly permitted by the Treaty and the general limit constituted by "imperative reasons of general interest", which are constructed differently depending on the reference sector.
Finally, if the aforementioned imperative reasons exist, it is necessary to evaluate whether the national legislation derogating from European freedoms respects the following other general European principles: i) principle of equal treatment, which prohibits the national derogation from creating discrimination between national and European legal situations; ii) principle of proportionality, which requires that the national measure be adequate, suitable and proportionate in the strict sense with respect to the protection of the national public interest, in order to establish whether the sacrifice of the European public interest is concretely justified; iii) principle of private trust affected by legislation that may be retroactive or which jeopardizes consolidated positions; iv) principle of transparency and principle of competition for the market, if there is a need for limited choice of private entities who can carry out that activity (Council of State, Section IV, ordinance no. 1071 of 31 January 2023).
In the case under examination, as has just been clarified, while there is no need to delve into the first aspect, as the appeals must be accepted, so that by definition no infringement on the freedoms guaranteed by the Treaty is foreseen, it is instead useful to retrace the orientation of the Court on the notion of an imperative reason in the general interest.
The regulation of games of chance and betting is one of the sectors in which there are considerable moral, religious and cultural divergences between Member States.
In the absence of harmonization on the matter at Union level, Member States enjoy broad discretion as regards the choice of the level of consumer protection and social order that they consider most appropriate (judgment of 20 December 2017 , Global Starnet, C-322/16, paragraph 39 and the case law cited there).
Member States are, therefore, free to set the objectives of their gambling policy and, where appropriate, to precisely define the level of protection sought.
However, the restrictions they impose must satisfy the conditions resulting from the jurisprudence of the Court as regards, in particular, their justification on the basis of overriding reasons in the general interest and their proportionality (judgment of 20 December 2017, Global Starnet, C- 322/16, point 40 and the jurisprudence cited therein).
Therefore, as long as they satisfy this last requirement, any restrictions on gambling activities can be justified by virtue of overriding reasons of general interest, such as consumer protection and the prevention of fraud and incitement of citizens to excessive spending. related to gaming (judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C-463/13, paragraph 48 as well as the case law cited therein).
The considerations just illustrated therefore further clarify and strengthen the interpretative conclusion of the legislation contained in Legislative Decree no. 34/2020, which had already been reached on the basis of domestic law, i.e. that, since said legislation was introduced as an emergency decree to deal with the economic emergency that arose following the closure and restrictions on economic activities , with the aim of finding the resources necessary to finance measures to support and relaunch the economy and, as far as art. 217, of the sports sector, the purpose constraint on the levy can only be supported, in terms of the stability of the system, by the existence of serious and serious imperative needs of general interest, which cannot be reduced to the generic 'fiscal reason'.
In fact, if the principle of alignment or correspondence between the amount of the forced levy and the maximum limit on the allocation were denied, which should therefore be understood (also) as an (implicit) limit to the levy itself, the practical effect that would be produced would be to finance public spending in general, as the law does not reveal further or different specific imperative reasons of public interest to be pursued.
To this end, moreover, they could never make up for the unspecified "homologous purposes" also proposed by the Revenue Defense in its defense writings, both because they are not verbatim foreseen by the law, and because they are the result, at most, of a 'spontaneous' destination and of mere fact by the State in favor of sports and amateur associations, i.e. such as not to allow both from the perspective of European and national law, the necessary objectivity and measurability of the needs actually desired and pursued by the legislator (according to the consolidated case law of the Court, the identification of the objectives actually pursued by the national provisions at issue in the main proceedings still falls within the jurisdiction of the referring court: in this sense, judgment of 28 January 2016, Laezza, C-375/14, paragraph 35).
20. Ultimately, the appeals, as proposed and then joined in the epigraph, must be accepted for the absorbing and fully satisfactory considerations set out above (which allows us to ignore the examination of the further articulated complaints) and, in reform of the contested sentence, Consequently, the first instance appeals must be accepted and the contested acts annulled.
21. The costs of the double level of judgment can be offset taking into account the partial novelty and complexity of the issues examined.
PQM
The Council of State in jurisdiction (Seventh Section), definitively ruling on the appeals, as in the proposed epigraph, brings them together and accepts them and, consequently, in reform of the contested sentence, accepts the appeals of first instance and cancels the contested acts.
Expenses compensated".
