Corporate, Companies and Entities whose securities are traded on regulated foreign markets, Civil Cassation, Section V, Interlocutory Ordinance no. 19381 of 08/07/2021

Art. 30, paragraph 1, n. 5, l. n. 724 of 1994 – Text prior to the changes made by l. n. 296 of 2006 – Applicability – Scope – Companies and entities whose securities are traded on Italian regulated markets – Existence – Companies and entities whose securities are traded on foreign regulated markets – Exclusion – Articles 18 (pursuant to Article 12 of the TCE) and 49 (ex art. 43 TEC) of the TFEU – Violation

The Fifth Civil Section of this Court, with two twin orders, asked the EU Court of Justice to give a preliminary ruling pursuant to art. 267 of the TFEU on the following question: whether Articles 18 (ex art. 12 TEC) and 49 (ex art. 43 TEC) of the TFEU preclude a national regulation which, like art. 30, paragraph 1, n. 5, of the l. 23 December 1994, n. 724, in the version, applicable ratione temporis, prior to the changes made by l. 27 December 2006, n. 296, excludes non-operating companies from the anti-avoidance tax regime – based on the establishment of minimum standards of revenues and income, related to the value of certain company assets, the failure of which is a symptomatic index of the non-operational nature of the company and involves the determination of income taxable on a presumptive basis – only companies and entities whose securities are traded on Italian regulated markets and not also companies and entities whose securities are traded on foreign regulated markets, as well as companies that control or are controlled, even indirectly, by them listed companies and entities.

Source Supreme Court of Cassation