1. Prof. Dr. Pasquale Pistone Institute for Austrian and International Tax Law www.wu-wien.ac.at/taxlaw Damages and liabilities vs. Italy and the Corte di Cassazione Prof. Dr. Pasquale Pistone pasquale.pistone@wu-wien.ac.at

2. Prof. Dr. Pasquale Pistone Institute for Austrian and International Tax Law www.wu-wien.ac.at/taxlaw 2 Italy: an outstanding candidate for damage liability? nItaly never refers cases, seldom complies with tax decisions involving similar measures of other EU MSs nThe 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 nItalian domestic procedural law allows for ex officio application of law => Peterbroeck, 12: should also apply to European law

3. Prof. Dr. Pasquale Pistone Institute for Austrian and International Tax Law www.wu-wien.ac.at/taxlaw 3 Is Italy carrying out a sufficiently serious breach of European law? Yes n 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 n There is not (yet) an established body of case law in the field of direct taxes n 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

4. Prof. Dr. Pasquale Pistone Institute for Austrian and International Tax Law www.wu-wien.ac.at/taxlaw 4 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: n CFC => Cadbury Schweppes n Outbound dividends => Denkavit France n Personal deductions for non-residents => Gerritse n Foreign pension funds => Danner

5. Prof. Dr. Pasquale Pistone Institute for Austrian and International Tax Law www.wu-wien.ac.at/taxlaw 5 Manifestly infringing the applicable law and direct taxation n 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 n 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