Damages and liabilities vs italy and the corte di cassazione
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Damages and liabilities vs. Italy and the Corte di Cassazione. Prof. Dr. Pasquale Pistone [email protected] Italy: an outstanding candidate for damage liability?. Italy never refers cases, seldom complies with tax decisions involving similar measures of other EU MSs

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Damages and liabilities vs. Italy and the Corte di Cassazione

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Damages and liabilities vs italy and the corte di cassazione

Damages and liabilities vs. Italy and the Corte di Cassazione

Prof. Dr. Pasquale Pistone

[email protected]


Italy an outstanding candidate for damage liability

Italy: an outstanding candidate for damage liability?

  • Italy never refers cases, seldom complies with tax decisions involving similar measures of other EU MSs

  • The Italian Tax Court of Last Instance (i.e. the Tax Chamber of the Corte di Cassazione) seldom applies the acte clair doctrine in the field of direct taxation, whereas it frequently does so in other tax domains

  • Italian domestic procedural law allows for ex officio application of law => Peterbroeck, 12: should also apply to European law


Is italy carrying out a sufficiently serious breach of european law

Yes

It is persistent and…consistent in disregarding the primacy of European law even in presence of settled ECJ case law

Examples: CFC rules, outbound dividends (under infringement procedure), personal deductions for non-residents, contributions to foreign pension funds (despite withdrawal of infringement procedure), etc.

No

There is not (yet) an established body of case law in the field of direct taxes

Thin Cap GLO, 121 and FII, 215: in a field such as direct taxation, the consequences arising from the freedoms of movement…have been only gradually made clear

Is Italy carrying out a sufficiently serious breach of European law?


Examples of sufficiently serious breaches in direct taxation

Examples of sufficiently serious breaches in direct taxation

FII, 215: clarity on most aspects of inbound dividends was not achieved until Verkooijen, Lenz and Manninen achieved

Therefore, as to the Italian examples:

  • CFC => Cadbury Schweppes

  • Outbound dividends => Denkavit France

  • Personal deductions for non-residents => Gerritse

  • Foreign pension funds => Danner


Manifestly infringing the applicable law and direct taxation

Manifestly infringing the applicable law and direct taxation

  • Köbler, 53: State liability for an infringement of Community law by a decision of a national Court of last instance can be incurred only where the Court has manifestly infringed the applicable law

    BUT

  • Traghetti del Mediterraneo, 43: Such manifest infringement…is in any event presumed where the decision involved is made in manifest disregard of the case-law of the Court on the subject

    My view: manifest infringement exists in the presence of acte clair

    TAX REPERCUSSIONS FOR ITALY: if the Corte di Cassazione does not – even ex officio – disapply the Italian domestic tax provisions in the examples given, Italy should be made liable for damages


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