CJEU – Recent Developments in Direct Taxation 2023

Guglielmo Maisto/Cesare Silvani

1. The Contship Italia case

1.1. Introduction

The joined cases C-433/21 and C-434/21 (Contship Italia S.p.A.) deal with the compatibility of the Italian anti-shell companies’ legislation under Art. 30 of Law No. 724 of 23 December 1994, as applicable in fiscal years 2004 and 2005, with the fundamental freedom of establishment. More specifically, the domestic legislation in 2004 and 2005 did not apply to companies or entities whose securities were traded on an Italian regulated market. The Court of Justice of the European Union (CJEU) analyses whether this exclusion, limited only to companies (and entities) with securities traded on Italian regulated markets, could run foul of the EU fundamental freedoms in a way that would affect the specific taxpayer involved in the case.

The Court concludes that Italy’s legislation was not contrary to the EU freedom of establishment. Considering the specific circumstances of the case, the decision of the Court appears to be correct. This contribution will examine the case and whether a question framed in a more complex way could have increased the chances of a different outcome.

1.2. Applicable law

Art. 49(1) TFUE provid...