Fabrizio Colonna

IS PARENT-SUBSIDIARY DIRECTIVE (#PSD) APPLICABLE ONLY TO CORPORATE INCOME TAXES? IS PSD APPLICABLE TO ITALIAN #IRAP? Those questions should receive straight-forward answers, based on the settled #caselaw of the Court of Justice of the European Union. It is enough to go back to funding decisions such as that delivered in case C-375/98 (#EPSON), concerning the compatibility with the PSD of a Portuguese levy domestically characterized as succession/donation tax. In that case the Court was clear in holding that: ➡ the Portuguese tax was a "tax for which the chargeable event is the payment of dividends or of any other income from shares, that the taxable amount is the income from the shares and that the taxable person is the holder of the shares"; and thus, that ➡ the Portuguese tax had "the same effect as a tax on income" and that it was "immaterial in that respect that it is called 'succession and donation tax' and that it is levied in parallel with IRC". The Court consequently held that the PSD applied also to that succession and donation tax. The Court also found that Article 2(c) PSD - enumerating the corporate taxes of the Member States - did not support a different conclusion. In fact: 🔛 That provision pinpoints the national taxes to which the companies falling within the scope of the PSD are normally subject 🔝 It cannot be inferred from this that other taxes having the same effect are authorised, particularly since the final part of Article 2 refers expressly to 'any other tax which may be substituted for any of the above taxes'. That principle has been restated subsequently in well-known (or supposedly well-known) decisions, such as those delivered in cases C-365/16 (AFEP) and case C-68/15 (X). It is therefore astonishing that almost a quarter of a century ⏳⏳⏳ after the #EPSON decision, we are still waiting that Italian Courts and Revenue Agency (Agenzia delle Entrate) recognize that the #IRAP taxation of 50% of qualified intra-EU dividends received by Italian banks and insurance companies and PEs (under Articles 6 and 7 of the IRAP Decree) is at variance with Article 4 PSD. Fortunately, a reference to the Court of Justice of the European Union for a preliminary ruling has finally been ordered by an Italian Court. See ⤵ order for reference in case C-92/24 (BM). I let all EU law tax experts or afficionados to guess, based on the text of the (well-written) order, what the #CJEU shall reply... I know, it was a bit long as a post. But this time it was worth it 😉 Pirola Pennuto Zei & Associati Mario Tenore #EULAW #tax #taxlaw Università Cattolica del Sacro Cuore

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White Collar Crime : DPA or not DPA ? Clearly DPA (« Deferred Prosecution Agreement »): Recent cases have shown that there is an urgent need for action in the prosecution of major economic criminal law offences in Switzerland. The advantages of the DPA are to : 🔹1) propose a fast and effective penal solution in the interests of: 🔸the defendants who can be quickly and predictably fined without a criminal conviction 🔸the victims who can obtain rapid compensation for their loss 🔸the judicial system, which is being decongested; and ultimately 🔸the taxpayers who currently bear the costs of endless economic crime proceedings (Vincenz case, Fera AG case, Dieter Behring case…) 🔹2) create a legal framework on a level playing field with other jurisdictions (France, UK, USA) 🔹3) enhance the credibility of the Swiss judicial system and the international reputation of the Swiss financial center In addition to DPA (extended to individuals), a weakening of the sealing tool, the overcoming of excessive bureaucracy and the strengthening of the public prosecutor's offices and courts would certainely be further corrective measures. Politicians have a part to play here !

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INTERPOSITION OF FOREIGN SUBSIDIARY - DIVIDEND TAX ABUSE The Italian Supreme Court (Corte di Cassazione) has confirmed the prevalence of the domestic anti-avoidance rule, providing for the full taxation of dividends originating in low-tax jurisdictions, over tax treaty exemptions. In decision 10305/2024, the tax chamber of the Supreme Court held that: ➡ the dividend (full) exemption provided for in article 24 of the #Italy-#Germany #taxtreaty does not apply (while the full taxation provided under the domestic #anti-avoidance provision does) ✔ #if the German subsidiary distributing the dividends to the Italian parent is not genuinely interposed and redistributes dividends originating in a low tax jurisdiction (in the relevant case #Singapore, through an intermediate UK company). The #Court found that the prevalence of (#proportionate) anti-avoidance domestic law provisions over treaty provisions is confirmed by: 1️⃣ the OECD - OCDE Model #Commentary 2️⃣ Article 6 of the #ATAD 3️⃣ European Commission recommendation on #Aggressive #tax-#planning 2012/772/EU 4️⃣ the case law on abuse of the Court of Justice of the European Union The Court also pointed out several indicia (see ⬇) that lower courts should employ to ascertain whether a directly participated foreign subsidiary should be regarded as not genuinely interposed in the participation chain, such as: 🔹 the absence of an organized business activity carried out by the directly participated foreign subsidiary 🔺 the absence of a prevailing economic activity within the state of the directly participated foreign subsidiary; 🔸 the existence of agreements that compel the directly participated foreign subsidiary to pay the dividends it received on to the Italian parent 🔻the substantial temporal coincidence among the dividend distributions along the participation chain 🔹 the presence of a (substantially) exclusive tax reason for channeling the participation in the in the low-tax subsidiary through the directly held subsidiary (the German subsidiary in the case at stake) While the principle affirmed by the #Supreme #Court appears - in abstracto - to conform with both #EU and #treaty law, there is a concrete #risk that the above indicia could be selectively used by Italian Courts and Tax Authorities to deny the dividend exemption regime provided by some tax treaties and the #Parent-#Subsidiary #Directive also in non-abusive situations, in particular where the directly participated foreign subsidiary is an holding company.  #taxtreat #abuse #tax #taxlaw #EUlaw Pirola Pennuto Zei & Associati Università Cattolica del Sacro Cuore

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Tea time with the Lawyer, Milan - Italy 7 May 2024, 4.00pm Senior Partner Marco Chiesara, from our Italian member firm Lexellent, together with Martina Bianco of the Labour and Social Security Area of Assolombarda, Livio Lannutti and Massimiliano Traversa of the Trade Union Area of Assolombarda, will participate today in the second meeting of the series organised by Assolombarda and entitled "Tea Time with the lawyer", aimed at member companies and with the aim of deepening various issues related to labor law. They will speak about "The non-competition agreement: pitfalls and solutions" and will explore the issue of the non-competition agreement, examining possible critical issues and offering solutions. To read more and register: https://lnkd.in/eEhkKqFJ Don't miss it! #employmentlaw #employmentlawyers #Lexellent #noncompetitionagreement #Avvocati #PattoNonConcorrenza #DirittoLavoro #Imprese #Lavoro #Ellint

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In addition and in compliance with national regulations aimed at protecting 'MADE IN ITALY' (Decree Law 34/2019 - Law 206/2023), the Municipality of Milan is the first local administration to adopt mandatory rules governing the inclusion of the name "Milano" in the registration of third-party trademarks ("Regulation for the release of authorization to register trademarks including the ‘Milano’ sign", approved by Municipal Council Resolution No. 29 on 23 April 2024.)   The Regulation in a nutshell: 📌 it establishes conditions and procedures for obtaining authorization to register TMs featuring the word "Milano", in any form or combination 🚫 authorization is granted only if the TM doesn't harm the image of the city but instead promotes and enhances the city, its territory and the Milanese community ⛔ the authorization to use "Milan" word is not transferable 💶 currently, no fees or reimbursements are required but taxes, duties and future fees may apply ⏱ the authorization lasts ten years from the application date with renewal options, if not renewed the use of "Milano" must cease ⚠ the authorization could be revoked in certain cases ⚖ applicants have several obligations and responsibilities  (e.g. exclusive use within the specified scope for which authorization was granted, compliance with the requirements set out in this Regulation, etc.) 👮‍♂️ the Municipality of Milan handles requests after being notified by the deputed entities for receiving trademark applications (IPTO and Chambers of Comerce) ™ "Milano" name cannot be used in connection with all products and services (e.g. pornographic material and weapons are expressely excluded) 👤 eligible applicants include individuals, public administrations, other organisations of a social, cultural, educational, sporting, scientific, tourist and economic character, with or without a profit-making purpose 📓 the mere use of sign "Milano" is not regulated but the Municipality of Milan reserves the right to take legal action against any unauthorized "use of the name Milano" 👨‍🎓 any dispute relating to the interpretation or execution of the Regulation shall be attributed to the exclusive jurisdiction of the Court of Milan Now it will be interesting to see which other local administrations will follow in the footsteps of the Milanese one! #MADEINITALY #PLACENAMES #MILANTRADEMARK

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The Legislative Decree implementing the Secondary Market Directive on credit purchasers and credit servicers of NPLs in Italy has just been approved! But Bank of Italy’s technical rules will follow within 6 months…We continue to receive a lot of questions, and we are very happy to answer to the greatest extent we can. Pietro Bellone Martina Gullino Chiara D'Andolfo Fabio Gregoris #SMD #NPL #creditpurchasers #creditservicers

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The debate about algorithmic collusion has solidified to a state where agencies like the EU-Commission or the UK CMA have acknowledged its relevance for the cartel prohibition in their latest Horizontal Guidelines. In addition, national legislators in Germany and Italy have, in the last months, enacted special antitrust provisions with the intention, among other things, to tackle algorithmic collusion even outside the scope of the cartel prohibition. In our new paper, Roman Inderst and I analyze the concomitant challenges from an interdisciplinary perspective https://lnkd.in/eJ3WB7hx. Our core hypothesis: the counterfactual in antitrust analysis should not be “algorithmic pricing without collusion.” Rather, the counterfactual must be shaped around a type of modified pricing mechanism, which the agencies or courts need to define in the first place. Only then is it possible to assess if modified types of pricing will increase consumer rent or not. We develop a taxonomy of cases for the cartel prohibition, and we describe paradigms for the development of remedies within the realm of the new legislation.

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Last Wednesday, I had the pleasure of attending to the Privacy Symposium in Venice, discussing pay-or-consent and data protection with marco scialdone, Luana Patti, Sergio Aracu, Francesca Gravili, Vincenzo Tiani, LL.M. My two-cents in a nutshell: a) There are no EU regulations that prohibit considering personal data as commodities. b) The EDPB Opinion applies exclusively to very large platforms because they are essential facilities. c) Forcing companies to offer two free alternatives could infringe both Article 21 of the Italian Constitution and Article 16 of the Charter of Fundamental Rights of the European Union on freedom of enterprise. d) Privacy policies must be clear, but a paternalistic approach is not necessary. e) The supervisory authorities must adopt a unified approach, otherwise, the process of harmonization might be jeopardized. f) The role of newspapers, in a democratic society, cannot be equated with that of VLPs. #dataprotection #privacy #payorconsent #dataprivacy #freedomofenterprise

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On July 23rd, Bank of Italy has released the following communication, describing the role of the Supervisory Authorities in the framework of the Regulation (EU) 2023/1114 (MiCA) with regard the (i) EMT, (ii) ART and (iii) “other than” crypto-assets. It is stated that: - Bank of Italy will be responsible for AML supervision of CASPs, and it will have prudential supervision powers over both EMTs and ARTs issuers. Bank of Italy will supervise the transparency, fair conduct, and protection of EMT holders. - CONSOB (Italian Securities and Exchange Commission) will be designated as the competent authority for crypto-assets other than EMTs and ARTs, including controls on transparency, fair conduct, orderly trading, and customer protection. Under AML Perspective, entities wishing to engage new activities must implements risk-mitigating measures. Safeguards are considered crucial on AML/CTF prevention, particularly for risks associated with a)transactions involving self-hosted addresses, b)using anonymization tools by customers, c)discrepancies between the volumes and types of crypto-asset transactions and customer profiles, d)connections with high-risk level jurisdictions. The crypto-asset market players are invited to contact the relevant Authorities with an informal contact before submitting their notifications and authorization applications, and are also invited requesting guidance on how to submit the relevant documentation. #fintechlawyersnetwork #micar #bankofitaly #cryptoassets

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The thing about conflicts searches is you need to know what to search for. If the parties to an arbitration don’t provide all relevant names, a conflict may go undetected and put the award at risk. That’s exactly what happened in Opportunity Fund v. Telecom Italia. The arbitral tribunal dismissed a USD 15 billion claim. The Paris Court of Appeal annulled the award  because of reasonable doubts as to the president’s independence. This was because the president’s firm acted for a major shareholder of Telecom Italia. The link to our English translation of the decision is on the Arbitration in Translation page – follow it for updates). In summary: 🔹During the arbitration, Vivendi acquired an interest in Telecom Italia; it held a minority interest, but appointed the majority of the board and exercised de facto control 🔹This did not come to light until after the award was issued 🔹At that point, the president disclosed that her firm acted for Vivendi and some of its subsidiaries, though she was not personally involved 🔹The firm reserved its right to continue acting for Vivendi The Court stated:   “50. The significance of this shareholding, together with Vivendi’s direct involvement in the governance of Telecom Italia while the arbitration at issue was ongoing, show that Vivendi had a clear interest in the outcome of the arbitration, regardless of whether there was a relationship of control within the legal meaning of the term. The financial stakes of the arbitration cannot be held to be immaterial to Vivendi, given that the claims made against Telecom Italia amounted to several billion dollars.” These ties gave rise to a reasonable doubt as to the president’s independence. The Court thus held that the tribunal was improperly constituted, and annulled the award. *** My take:   🔹The onus was on Telecom Italia to inform the tribunal of the relationship between the arbitrator and Vivendi, as an entity with a financial interest in the outcome of the arbitration that exercised de facto control, as soon as that became the case (IBA Guidelines on Conflicts of Interest in International Arbitration, General Standard 7(a)).   🔹Practically speaking, this means providing all relevant names so that the arbitrator may run the appropriate conflict searches. 🔹This is especially important when the arbitrator is in a large firm, and thus more prone to conflicts. 🔹As counsel, we should be especially mindful of this when acting for clients whose ownership and governance structure changes often. ***  Arbitration in Translation aims to promote consistency in international arbitration law by providing translations into English of key arbitration-related court decisions from major arbitral seats. All of our translations are completed by professional legal translators and revised and approved by me. We do not believe in using artificial intelligence or automatic translations to complete translations of such complex, nuanced material. This work is our own.

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It’s online the practice note "Public Mergers and Acquisitions in Italy” published by Thomson Reuters addressing the main laws and regulations applicable to public takeovers in Italy co-authored by Nicola Asti and Vittoria Deregibus.   Update: Law stated as at 06-Jun-2024 | Italy. Reproduced from Practical Law Global with the permission of the publisher. Click here to read: https://lnkd.in/dRR75i5Q   Rosida Carpagnano, LL.M.   #M&A #publicmergersandacquisitions #Law #LawFirm  

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🚀 𝗡𝗲𝘄𝘀 𝗳𝗼𝗿 𝗦𝗠𝗘𝘀: 𝗘𝗨 𝗽𝗿𝗼𝗽𝗼𝘀𝗲𝘀 𝘀𝗶𝗺𝗽𝗹𝗶𝗳𝗶𝗲𝗱 𝗖𝗼𝗿𝗽𝗼𝗿𝗮𝘁𝗲 𝗟𝗮𝘄 𝘁𝗼 𝗯𝗼𝗼𝘀𝘁 𝗱𝗶𝗴𝗶𝘁𝗮𝗹𝗶𝘇𝗮𝘁𝗶𝗼𝗻 In a digital age, the agility of small and medium-sized enterprises (SMEs) is more crucial than ever. Recognizing this, the European Commission has recently put forth a proposal to amend corporate law, aiming to foster an environment where businesses can thrive digitally, even across borders. 📜 𝗞𝗲𝘆 𝗵𝗶𝗴𝗵𝗹𝗶𝗴𝗵𝘁𝘀 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗘𝘂𝗿𝗼𝗽𝗲𝗮𝗻 𝗖𝗼𝗺𝗺𝗶𝘀𝘀𝗶𝗼𝗻’𝘀 𝗽𝗿𝗼𝗽𝗼𝘀𝗮𝗹: - 𝗕𝘂𝘀𝗶𝗻𝗲𝘀𝘀 𝗥𝗲𝗴𝗶𝘀𝘁𝗲𝗿𝘀 𝗜𝗻𝘁𝗲𝗿𝗰𝗼𝗻𝗻𝗲𝗰𝘁𝗶𝗼𝗻 𝗦𝘆𝘀𝘁𝗲𝗺 (𝗕𝗥𝗜𝗦): This initiative has already linked national business registries across the EU, enabling seamless transnational operations. Businesses can now access and exchange information about cross-border branches and mergers effortlessly. - 𝗗𝗶𝗿𝗲𝗰𝘁𝗶𝘃𝗲 𝟮𝟬𝟭𝟮/𝟭𝟳/𝗘𝗨 𝗮𝗻𝗱 𝗶𝘁𝘀 𝗥𝗲𝗴𝘂𝗹𝗮𝘁𝗶𝗼𝗻 (𝗘𝗨) 𝟮𝟬𝟭𝟱/𝟴𝟴𝟰: These laws established BRIS, mandating all EU countries to connect their national registries to a central European platform. This not only enhances transparency but also simplifies administrative processes for SMEs operating across the EU. 🔍 𝗖𝗵𝗮𝗹𝗹𝗲𝗻𝗴𝗲𝘀 𝗮𝗻𝗱 𝘀𝗼𝗹𝘂𝘁𝗶𝗼𝗻𝘀: While the integration has been significant, accessing cross-border corporate information remains a challenge due to varying national regulations and limited data availability. The new directive aims to: Enhance transparency and reliability of company data. Increase data availability in national registries and through BRIS. Facilitate the use of company data for establishing cross-border branches and subsidiaries. 🌍 𝗖𝗼𝘂𝗻𝗰𝗶𝗹’𝘀 𝗻𝗲𝗴𝗼𝘁𝗶𝗮𝘁𝗶𝗼𝗻 𝗺𝗮𝗻𝗱𝗮𝘁𝗲: The Council of the European Union supports the directive's objectives but suggests further simplification of bureaucratic processes. This includes streamlining the exchange of information and access when establishing subsidiaries or branches abroad, thus reducing administrative burdens and respecting national data privacy traditions. ⏳ 𝗜𝗺𝗽𝗹𝗲𝗺𝗲𝗻𝘁𝗮𝘁𝗶𝗼𝗻 𝘁𝗶𝗺𝗲𝗹𝗶𝗻𝗲: An additional six-month grace period is proposed to help businesses adapt smoothly to these new requirements. This period will also frame negotiations with the European Parliament to finalize the directive. 📣 For businesses and professionals in the digital and corporate sectors, these changes promise not only to streamline operations but also to open up new opportunities for growth and innovation across Europe. Stay tuned as we continue to navigate these developments together! #DigitalTransformation #EURegulations #SMEs #CorporateLaw #Innovation https://lnkd.in/dqd4iKS8

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The International Comparative Legal Guides – Restructuring & Insolvency 2024, published by Global Legal Group, is now available. Our restructuring Lawyers, Giovanni Bravo and Sara Piccardo, wrote the "Italian" chapter. Click here for reading: 👉 https://lnkd.in/dT7BqXiM.

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🥇 Angelo Zambelli, Barbara Grasselli and Alberto Testi have been recognized in the 2025 edition of The Best Lawyers in Italy ! The motivation for the recognition is: “for the high caliber work in Labour and Employment Law”. The awards are published on https://lnkd.in/gsV9pm9 🎤 Inclusion in Best Lawyers is based on a peer-review survey. The research process captures the opinion of leading lawyers about the professional abilities of their colleagues within the same geographical and legal practice areas. 🔍 More information on the publication: The Best Lawyers in Italy are available here: https://lnkd.in/dCXqh7_P #employmentlaw, #labourlaw, #dirittodellavoro

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The internal definition of a permanent establishment, contained in art. 162 of the italian consolidate income tax act (TUIR), originates from art. 5 of the Model Tax Convention developer by the OECD (adopted in numerous bilateral tax treaties to prevent double taxation). Although organically framed at the civil law level within the parent company (see ECJ in C-210/04, p. 41), has its own tax autonomy for the purpose of determining the allocation of income for the economic activity carried out in the territory. An analysis for Quotidianopiù by Giuffrè. https://lnkd.in/dNb7aYBE

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Italian Dual citizenship for Americans - WEEKLY DOSE Legal Considerations When Renting a House in Italy If you're considering renting a house here in Italy, it's crucial to understand the legal aspects to ensure a smooth and secure experience. Here's a summary of key points to consider: Types of Rental Agreements: • 4+4 Contracts: Most common, offering an initial 4-year term with the option to renew for another 4 years, unless terminated by either party with 6 months' notice. • 3+2 Contracts: Less common, with an initial 3-year term and a 2-year renewal option, unless terminated by either party with 6 months' notice. • Shorter Contracts: Possible under specific circumstances, often for temporary needs. Tenant Rights: • Habitation in good condition: The property must be suitable and safe for living. • Advance notice to terminate: Six months' notice required by law. The contract may specify shorter notice periods for the tenant. Landlord Responsibilities: • Maintenance and repairs: Generally responsible for repairs unless caused by tenant negligence. • Energy Performance Certificate (APE): Must be provided by the landlord and meet minimum energy efficiency standards. Registration and Taxes: • Contracts exceeding 30 days require registration with the Revenue Agency (Agenzia delle Entrate). • Tenants may be liable for local taxes on waste collection (TARI). Additional points to consider: • Landlords are allowed to request a security deposit, typically equivalent to one or two months' rent. This is returned to the tenant at the end of the lease, minus any deductions for damages beyond normal wear and tear. • The specific notice period for terminating the tenancy will depend on the type of contract. • Review the contract carefully before signing. • Clarify responsibilities for utilities and maintenance. • Consider using a qualified translator for contracts in Italian. • Seek legal advice for complex situations. Disclaimer: This post is for informational purposes only and does not constitute legal advice. Always consult with a qualified professional regarding your specific situation.

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💡 This was the panel I was most looking forward to at this year's International Bar Association's Transitional Crime Conference (no disrespect to the others). It did not disappoint. Thanks to Saverio Lembo for his perfect take aways (he was part of the panel for a reason). 💡 ⏩ The one aspect I would add is Astrid Mignon Colombet's remark that in France a big part of the CJIPs concerned environmental criminal law matters. Given that, esp in light of the EU recently having adopted the new Directive on Protection of the Environment through Criminal Law, this field will become more and more relevant, discussions about DPAs will not stop - and should not stop. ❌ The current status quo serves no-one. ❗ ❗ However: Being realistic and aware of how unpredictable the system concerning crown witnesses in Austria work, there is still a lot of ground to cover. Because, as everybody agreed, DPAs have to offer predictability in order to work.

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Switzerland and Italy signed an amending protocol to the existing cross-border commuter agreement. The protocol regulates the taxation of home working for cross-border commuters for the long term. Effective from 1 January 2024, all cross-border commuters have the option of working from home for up to 25% of their working time. Working from home has no impact on the jurisdiction taxing income from employment or on the status of cross-border commuters. https://lnkd.in/deNq4_45

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