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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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.
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 clearIs Italy carrying out a sufficiently serious breach of European law?
FII, 215: clarity on most aspects of inbound dividends was not achieved until Verkooijen, Lenz and Manninen achieved
Therefore, as to the Italian examples:
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