42As the Advocate General observed in points 75 and 76 of his Opinion, since only real estate funds governed by the law of Member States other than the Italian Republic can be set up in the form of open-ended investment funds and are, consequently, liable to be denied the benefit of the tax advantage conferred by Article 35(10-ter) of Decree-Law No 223/2006, the application of the distinguishing criterion based on the ‘open-ended’ or ‘closed-ended’ nature of investment funds leads to real estate funds governed by the law of Member States other than the Italian Republic being disadvantaged, thereby creating a difference in treatment to their detriment.
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