THE (UN)HAPPY RELATIONSHIP BETWEEN SIAE AND SOCIAL NETWORKS: THE META CASE.
Meta and SIAE failed to reach an agreement to keep ensuring the free sharing of songs and copyrighted content managed by the Italian Body on social platforms owned by the Menlo Park giant, Instagram and Facebook. The after-effect is the blocking and muting of all content featuring music tracks from SIAE repertoire, although creators will be allowed to replace them with royalty-free material within ‘extra SIAE’ libraries: it is a first-time case throughout Europe.
Before delving into the heart of the matter, it seems appropriate to step back and clarify the position of anyone willing to use third-party music online.
Generally speaking, online use and dissemination of other people’s music without the author’s consent is tantamount to copyright infringement. Furthermore, should anyone be willing to use third party music or the music creation within a social network, the platform operator may require users to provide either the license number or a suitable reference to prove to the right to reproduce that specific content, failing which the video will be taken down or published with no sound at all.
However, in order to meet web users’ needs and to the avoidance of hurdles such as showcasing, from time to time, proper licenses or similar documents, third party music free-use exemptions on social media have been introduced by means of licensing agreements entered between platform operators – including Meta – and collecting entities among national jurisdictions, hence improving user experience and the service as a whole.
As a consequence, a trilateral relationship among a collecting entity, a platform owner and the user may be improperly deduced. However, the end user remains free to use any song or content (available on social platforms) only by virtue of the license agreement in force between collecting entities and social media operators.
Focusing on user (or rather, user’s social activity), while assuming lack of any license between platform operators and collecting societies, the act of matching visual content with third-party music (e.g. Instagram Stories) without the author’s prior consent would surely imply a copyright infringement.
The ‘sync’ right is afforded to authors and publishers, allowing them to combine their own music with a sequence of either fixed or motion pictures in order to create an audio-visual work. Licenses in force with artists and collecting bodies are aimed at both simplifying and legitimating access to music libraries by millions (perhaps, billions) of users who daily share their own experiences on social networks backed with proper soundtracks.
However, all of this has come to an end in view of the unsuccessful license renewal between Meta and SIAE, indeed already expired as of January 1st, 2023, resulting in the impossibility for app-users to access music among SIAE repertoire to the purposes of creating stories and original content. SIAE, an entity roughly representing 99% of Italian music repertoire, urged for the application of a revenue-share model requiring Meta to keep track of the overall income of user-generated content featuring Italian music tracks, announcing the setup of similar arrangements with YouTube (run by Google) and TikTok.
Spokespersons for Mark Zuckerberg’s company express regret on what happened and promise to continue working in the hope a new arrangement is finally put in place, despite the firm stance of SIAE, which in its own statement reports how ‘Meta’s refusal to share information relevant to a fair agreement is clearly at odds with the principles enshrined in the Copyright Directive for which authors and publishers across Europe have been fighting so hard.’
Although failure to reach an agreement between Meta and SIAE has deeply shaken the Italian creative industry, it still appears as safe to rule out any danger of Meta by-passing Italian music within the long run considering, moreover, the ongoing exploitation until very recently, despite the lack of any agreement in force to that effect.
We will keep monitoring this as well as other similar cases in the near future. We trust common sense will always prevail for the sake of protecting creativity.
m.baccarelli@macchi-gangemi.com
m.lonero@macchi-gangemi.com
c.bonino@macchi-gangemi.com
a.torchia@macchi-gangemi.com
THE CONSUMER CODE: UPCOMING NEWS FROM APRIL 2023.
After the recent amendment to legislative decree no. 206 of November 6th 2005 which came into force in January 2022, further amendments were made to the Consumer Code with special consideration to the digital market. Such modifications will be binding starting from April 2nd 2023.
Legislative decree no. 26 of March 7th 2023 (Official Gazette 18.03.2023 no. 66) introduces a stricter regulation for misleading commercial practices and related omissive behaviours, so as to offer the consumer more protection during the negotiations leading to the purchase of products on digital platforms, with stricter sanctions applicable to the professional in case of unfair business practices.
First of all, the legislator introduces new rules concerning the information that the trader shall give the consumer regarding the selling price of the goods; specifically, the newly added “article 17-bis”, deals with the price reduction advertisements in order to tackle unfair behaviours in products’ offers and, more in general, to ensure transparency on the discount applied to a specific product.
From now on, every advertisement of price discount shall indicate “… the previous price charged by the trader during a specific period of time before the discount applied …” (article 17-bis, para. 1, Consumer Code).
It is also clarified that previous price charged should be intended as the price charged by the trader to the generality of consumers during the 30 days preceding the price reduction (article 17-bis, para 2, Consumer Code).
Also specified is that “… Previous price means the price applied by the trader to the consumers in general in the 30 days prior to the application of the price reduction …” (article 17-bis, para. 2, Consumer Code); if the products have been on the market for less than 30 days, the trader is also obliged to disclose the period of time to which the previous price refers (article 17-bis, para. 3, Consumer Code), unless it relates to the launch of an offer.
As to internet transactions, in searching for products by key words, precise information must be provided regarding the parameters that determine the classification of goods as a result of the search with the obligation to specify “… the importance of such parameters in relation to others …” (new para. 4, art. 22). Evidently it is intended to increase consumers’ awareness on how to search and select products in the on-line market.
Keeping the focus on on-line sales, the casuistry of commercial practices considered to be deceptive has expanded: from now on, providing consumers with the results of an on-line search without clearly indicating the presence of a paid advertisement or without disclosing that a paid service is being provided to obtain a better classification of the products within the search will constitute a deceptive practice for all intents and purposes (see new letter “m-bis” sub art. 23 Consumer Code).
Also considerable are the new provisions regarding reviews for products sold online: from now on the trader shall adopt reasonable and proportionate measures to verify that the reviews actually come from users who have bought the product and/or experienced the service; moreover commissioning third-parties – individuals or legal entities – to write false reviews or appreciations on a given product to promote its sale, is to be considered an unfair practice (see art. 23 Consumer Code, sub letters “bb-bis” and “bb-ter”).
Such unfair commercial practices are now punished with tighter sanctions, the maximum amount of which can now reach up to 10 million euros (see new para. 9, art. 27 Consumer Code), and in case of penalties imposed in accordance with art. 21 of the Regulation (EU) no. 2394/2017, the maximum penalty imposed by the Authority may be equal to 4% of the trader’s annual turnover achieved in Italy or in the EU member states affected by the relevant violation (para. 9-bis, art. 27 Consumer Code).
The focus on the digital market of the new provisions is also evident with the introduction of a new definition of “good” traded in a commercial business, a definition that also includes “… any movable material asset which incorporates, or is connected with, a digital content or service …” (art. 45 Consumer Code, sub para. 1, new letter “c” – “good with digital elements”).
Among the new definitions related to the digital field, also to be mentioned are digital service (“a service allowing the consumer to create, transform, store data or access them in digital format” – art. 45 Consumer Code, sub para. 1, new letter “q-bis”), digital marketplace (“a service using software, including websites, parts of the latter or an app run by or on behalf of the trader which allows the consumer to conclude contracts with other traders or consumers” – art. 45 Consumer Code, sub para. 1, new letter “q-ter”) and that of digital market provider (“any professional that provides a digital market to consumers” art. 45 Consumer Code, sub para. 1, new letter “q-quarter”).
In any case, all the precontractual information to be provided to consumers when concluding distance contracts (but not only), in contracts concluded in (and out of) commercial premises, specifically information on withdrawal, delivery obligations and risk transfers, etc. (Sections I to IV, Chapter I, Title III of the Consumer Code), shall also apply “… when the trader provides or undertakes to provide a digital content by means of a non-material medium or a digital service to the consumer”art. 46, unprecedented para. 1-bis).
An adaptation of the Consumer Code to the digital world which, on the whole, should certainly be appreciated for the increased level of protection guaranteed to the consumer, in various respects (and contexts).
e.storari@macchi-gangemi.com
THE CONTROL BODY AND THE AUDITOR IN S.R.L. OR LIMITED LIABILITY COMPANIES: WILL WE FINALLY HAVE AN ALERT SYSTEM ON THE STATE OF CRISIS OF COMPANIES?
In recent years, the rules governing limited liability companies have been the subject of several regulatory interventions affecting the entities to which control is delegated (control body or audit company) and the obligation or not to appoint them. For limited liability companies the latest amendments were introduced by the Corporate Crisis and Insolvency Code and, after several postponements, will soon be applicable, upon the date of approval by the companies of the 2022 financial statements.
In our legal system, the Civil Code provides that the Board of Statutory Auditors (Article 2397 et seq.) is assigned with supervisory functions on management (Article 2403) and, possibly, legal audit functions (2409-bis), if its members are registerd with the Special Register of Auditors and if the company is not required to prepare consolidated financial statements. In principle, these rules apply to both joint stock companies (S.p.A.) and limited liability companies (S.r.l.).
In the case of joint stock companies, the appointment of a Board of Statutory Auditors with supervisory functions is always mandatory and may also perform legal audit functions, provided that the above conditions are met and the functions are not entrusted to the auditor/audit firm.
The “supervisory functions on managment” are understood to be those which consist in verifying compliance with the law, the by-laws and proper management and, in particular, verifying the adequacy of the company’s organisational, administrative and accounting structure, as well as its actual functioning. As part of these duties, the members of the Board of Statutory Auditors attend shareholders’ meetings and meetings of the Board of Directors.
“Legal audit” functions – pursuant to Article 14 of Legislative Decree no. 39/2010 – are understood to be the audit of the annual financial statements (and of the consolidated financial statements) aimed at ascertaining that the company’s accounts are properly kept, that management events are correctly recorded in the accounting records and, finally, the compliance with the rules established for the valuation of the company’s assets. In this context, at least 15 days before the date of approval of the financial statements, the board of statutory auditors (if already assigned with the legal audit functions) or the auditor or the audit company, through a special report, expresses an opinion on the financial statements (and on the consolidated financial statements where prepared) and illustrates the results of the legal audit (art. 2429 of the Civil Code).
In the limited liability companies (S.r.l.) pursuant to Article 2477 of the Civil Code, the deed of incorporation/by-laws – in establishing competencies and powers – may provide for the appointment of a supervisory body or an auditor. The body shall be monocratic (single-member) if the articles of association do not provide for a collective body. Purusant to Article 2477 of the Civil Code, second paragraph, the appointment of a supervisory body or an legal auditor is mandatory if the company:
a) is required to prepare consolidated financial statements;
b) controls a company required to carry out statutory audits;
c) has exceeded, for two consecutive financial years, at least two of the following limits: (i) balance sheet assets of €4 million; (ii) turnover from sales and services of € 4 million; (iii) limit of 20 employees employed on average during the financial year.
However, the obligation to appoint ceases if none of the above limits has been exceeded for three consecutive financial years.
Pursuant to Article 379 of the Corporate Crisis and Insolvency Code (“CCIC”), which also intervened on the abovementioned Article 2477 of the Civil Code, limited liability companies established on the date of entry into force of the CCIC itself (15 July 2019), if the above requirements are met, must appoint the supervisory body or the auditor and, where necessary, standardize the by-laws within the date of approval of the financial statements for the fiscal year 2022 (within the following 4 months). Thus, should the fiscal year be January 1-December 31 2021, the appointment or amendment must take place by April 30, 2022 (unless financial statements approval is postponed to June 30, 2022 in accordance with Article 2364, paragraph 2, of the Civil Code).
Therefore, at the time of incorporation or at a subsequent quotaholders’ meeting, quotaholders may appoint:
(i) a board of statutory auditors/single auditor entrusted with the functions of supervision of management and legal audit (case allowed, provided that the above conditions are met, as per reference to the regulations on statutory auditors of limited companies see art. 2409-bis, paragraph 2);
(ii) a board of statutory auditors in charge of supervision of management with the legal audit assigned to an external auditor/audit company (e.g. when the company is required to prepare consolidated financial statements or the members of the board are not all registered in the special register of statutory auditors);
(iii) a single auditor, individual or company, entrusted only with the legal audit (this is in the absence of a specific provision that assigns management supervision functions to the auditor, functions that – however – according to some – could be entrusted to the legal auditor through the by-laws).
In other words, in this last hypothesis sub (iii), unless admitted by virtue of a specific provision in the articles of association providing that the auditor/audit company may also be assigned the functions of supervision of management, the limited liability company would be deprived of such control.
The issue has undoubtedly already been widely discussed by the doctrine, with conflicting interpretations, but it is coming back to the fore because the revised Article 2086 of the Civil Code, paragraph 2, provides that: “The entrepreneur, that operates in corporate or collective form, has the duty to set up an organizational, administrative and accounting structure that is appropriate to the nature and size of the enterprise, also for the timely detection of the crisis of the enterprise and the loss of business continuity, as well as to take action without delay for the adoption and implementation of one of the instruments provided by the law to overcome the crisis and the recovery of business continuity.”
As a result of the above, it is believed that, where the appointment of the controlling/auditing body is mandatory, both the functions of management supervision and those of legal audit must be guaranteed, in line with what has already been stated in the ID13 Corporate Guidelines by the Interregional Committee of Notarial Boards of Triveneto, thus substantially equalizing the limited liability companies (S.r.l.) to the limited companies (S.p.A.) and this pursuant to paragraph 6 of Article 2477 of the Civil Code, in the part where the provision gives the Court the power to appoint the control body or the auditor in the event of share/quotaholders’ inertia, at the request of any interested party or upon the report of the registrar of companies. Invoking the Registrar of Companies means that the Court’s intervention, limited to the case of failure to appoint due to exceeding the parametric limits, is now no longer probable but essentially automatic. At this point, the competent Court will not only have the task of choosing the person to appoint, but also the burden of identifying the type of control to which the company should be subjected.
Otherwise, it would be really difficult to have an alert system on the company’s state of crisis, which is one of the primary objectives of the CCIC. Especially given that limited liability companies, because of their smaller size, are very often not adequately structured, and subjecting them only to legal audit would mean exposing them to a potential, and perhaps higher, risk of non-compliance with the law.
e.pucci@macchi-gangemi.com
a.buttarelli@macchi-gangemi.com
THE SIMPLIFIED REVERSE MERGER: THE VIEW OF THE TRIVENETO NOTARIES ON THE APPLICABILITY OF ART. 2505-BIS C.C. TO THE “REVERSE MERGER“.
The Interregional Committee of the Triveneto Notaries recently published a guideline on “simplified reverse merger” (Guideline L.A. 35), which affirmed the possibility to extend the simplified merger procedure set forth by Article 2505-bis of the Italian Civil Code also to a non-totalitarian “reverse merger”, i.e. the parent company holds at least 90% of the registered capital of the subsidiary and is merged into the latter.
The so-called simplified merger procedure is regulated by Art. 2505 Civil Code, and allows the merger of fully owned companies (the so-called totalitarian merger) to be implemented by the respective corporate bodies without requiring the provision of all the documentation necessary for the ordinary discipline as listed in Articles 2501-ter, first paragraph, numbers 3) (exchange ratio), 4) (allocation of shares) and 5) (date on which the shares or quotas will share in profits), 2501-quinquies (directors’ report on the exchange ratio) and 2501-sexies (experts’ report on the exchange ratio) of the Italian Civil Code. The reason for this simplified procedure lies in the superfluity of determining the exchange ratio of the shares or quotas and the related fulfillments since the incorporating company is at the same time the sole shareholder (i.e., owns one hundred percent of the assets) of the incorporated company.
The possibility to extend the simplified merger procedure provided by Article 2505 of the Civil Code to reverse merger cases has been debated in doctrine for a long time. As early as 2004, the Milan Notarial Council (Extract n. 22) held that the applicability of the simplified merger procedure was admissible to totalitarian reverse merger, i.e. cases in which the fully owned subsidiary incorporates the parent company. In such hypotheses, since the shareholders of the merged company will become holders of shares or quotas of the incorporating company in the same proportion of the shareholding previously held (in the merged company), there is no reason to fear that the merger may result in an impairment of the consistency of the shareholding of the companies participating in the procedure, and consequently there is no reason to predetermine a special exchange ratio.
Article 2505-bis of the Italian Civil Code, on the other hand, regulates the simplified merger procedure in the case of at least 90% owned companies (so-called non-totalitarian merger). The simplified procedure at issue here excludes the need for an updated balance sheet (Art. 2501-quater), directors’ report (Art. 2501-quinquies), experts’ report (Art. 2501-sexies) as well as the filing of the documents referred to in Art. 2501-septies. However, in these cases, an express provision that guarantees the right of exit to the minority shareholders of the merged company must be provided, in force of which the latter are allowed to sell their shareholdings to the incorporating company upon the terms and conditions set forth by art. 2473 of the Italian Civil Code for the withdrawal. The minority shareholders will then have to decide whether to accept the merger on the terms set out in the exchange ratio, or whether to exercise their exit right by selling their shares or quotas to the acquiring company at market value.
The recent guideline of the Notary Council of Triveneto suggests the analogical extension of the simplified procedure set forth in Article 2505-bis of the Italian Civil Code to non-totalitarian reverse merger, i.e. reverse merger by incorporation of at least 90% owned companies. The position taken by the Notaries of the Triveneto departs from the most common interpretations, which instead move in disfavor to the extensibility of the simplified discipline under consideration. Some of these interpretations generally attribute to the exceptional nature of the rule in comment the impossibility of an analogical application to hypotheses that are not specifically contemplated by the legislator; according to other positions, on the other hand, the extension of the simplified procedure would not be admissible because in the hypothesis of a non-total reverse merger it would be the shareholders of the controlling-incorporated company to “suffer” the merger exchange. In other words, it would be a completely different circumstance from that of Article 2505-bis of the Italian Civil Code in which it is the minority shareholders of the controlled company who see their participation exchanged in the framework of the merger. This substantial difference between the two scenarios would make an analogical extension of the rule under comment inapplicable.
In conclusion, notwithstanding the more established interpretations are reluctant to recognize a greater flexibility of the scheme outlined in Article 2505-bis of the Italian Civil Code, Guideline L.A. 35 of the Interregional Committee of Triveneto Notarial Council instead seeks to provide a different reading that could represent an important contribution in this regard. It could be useful to evaluate and understand the reasoning behind this Guideline, currently lacking in punctual argumentation.
a.frau@macchi-gangemi.com
m.grimaldi@macchi-gangemi.com
NEW FRONTIERS OF CONTRACTUAL NULLITY IN OTC DERIVATIVES. CAUSE IN CONCRETE OR CAUSE IN ABSTRACT?
By decision dated December 23, 2022, the Court of Milan declared the nullity of the swap contract designed to hedge the underlying indexed financial lease “due to the non-existence in the abstract of the risk in relation to all the variations of the parameter interest rate […]” and to the consequent “lack of the cause of hedging”.
The case involves a company which entered into a swap on January 30, 2012, to hedge the risk of fluctuations in the floating interest rate (3M Euribor) to which the instalments of the underlying financial lease contract were indexed. Through the swap contract, the company neutralized the risk of fluctuation of interest rate and thus the risk of a possible increase in the payment of the indexed instalments of the underlying lease, by synthetically transforming the variable-interest rate debt of the underlying lease, into a fixed-rate debt (2.537%). The synthetic interest rate transformation allowed the contracting company, in a scenario of decreasing interest rates below the fixed threshold specified in the swap contract, to offset the payments due to the bank under the swap with lower disbursements made on the underlying lease, while in a scenario of increasing rates above the fixed interest rate specified in the swap, to receive the differential flows from the bank. However, the correlation between the hedging swap contract and the underlying financial lease was not perfect due to the presence of a floor clause in the financial lease (whereby the variable 3M Euribor rate could not fall below 0.3%), a component which was absent in the swap.
This minimum threshold in the financial lease contract, according to the Court, would have prevented the swap from achieving “the effect of stabilizing the interest rate for values of 3M Euribor equal to or lower than 0.3% (…) because the decrease in interest rate of the IRS’ floating leg (collected by the client) is not offset by the decrease in the interest paid in the underlying debt which has, precisely, a minimum level (floor) equal to 0.3%.“.
In essence, at 3M Euribor values equal to or below 0.3%, the contracting company would have faced higher charges (not achieving the savings on the underlying lease, although it would be required to pay the differential under the swap agreement), while the bank would have been certain to collect the payments. The Judge found, therefore, that below the floor rate lacked “completely and in abstract terms the existence of the cause concretely pursued by the parties by entering into the hedging derivative” and the intermediary had not assumed ex ante any risk with respect to the differential values below the floor threshold. This led the Judge to declare the swap contract invalid “due to the lack of the cause of hedging” as well as “for the absence in the abstract of the risk in relation to all changes in the parameter rate of less than 0.3 percent“.
The grounds of decision which are cryptic in their legal basis, raise several perplexities.
As to the hedging function, the hedging effectiveness is usually assessed based on technical/regulatory parameters which, in essence, assume the existence of a high correlation between the risk hedging instrument (i.e., the derivative) and the underlying (in this case, the financial lease). Hedging contracts are those instruments that neutralize or mitigate certain risks belonging to an underlying portfolio.
In the case at hand, despite the fact that the expert states the existence of a high correlation between the derivative and the underlying and confirms its hedging function, the Judge declares the derivative contract void because of the failure to achieve stabilization of interest rates in the scenarios below the floor (0.3%) agreed in the underlying lease (which would have occurred in 13.89% of cases based on an ex ante estimate by the expert). A circumstance that should not result in asserting the lack of the hedging function of the entire swap contract, given that in the remaining 86.11% of cases the derivative fully performs the hedging function. Instead, it would seem correct to say that the derivative in question was predominantly hedging.
The judgment seems to introduce a more rigorous concept of hedging than that required by legal parameters (Consob Resolution of February 26, No. 1999 DI/99013791) and case law, going so far as to declare contractual nullity in the absence of perfect hedging.
The perplexities are even more tangible in relation to the legal consequences that should stem from a derivative that differs from the nature the parties declared in the contract, since both hedging and speculative derivatives are allowed by law. For local governments or pension funds, for example, the hedging function of derivatives is required by special rules, but not so between private parties. The speculative or hedging nature of the derivative entered into between private parties is (or should be, given the most recent approach of case law) irrelevant. It should have a conventional relevance between the parties and stand as an operational preclusion, with legal consequences in terms of compensation of damages, but not such as to undermine the inherent lawfulness of the derivative contract or its contractual cause, understood as the abstract purpose or economic-social function of the contract.
In other words, even where there is an agreement between the parties to put in place a hedging transaction, nothing prevents them from knowingly putting in place a derivative with mixed, or only partly speculative, purposes, in any case intended and accepted by both parties. Only in the event that the client proves that he did not understand the speculative nature of the transaction ex ante (and not through an ex post reconstruction of the hedging effectiveness) would it be possible to act for the termination of the contract with related compensatory effect, while the nullity of the contract and the related restitutions seem questionable from a legal standpoint.
Nevertheless, there is a case law approach that gives prominence to the concrete cause of OTC derivatives by stating that when a swap with a hedging function is structurally unsuitable to achieve it, it must be declared void due to the lack of cause (Cass. July 31, 2017, No. 19013, an orientation that does not seem to be taken up by the Joint Divisions of the Court of Cassation in the ruling that accepted the questionable theory of the rational risk, Joint Divisions, No. 8770/2020, and which has been criticized by scholars).
As for the element of aleatoriness, the Judge’s assertion that there is no risk in scenarios where interest rate is less than 0.3% does not seem rigorous. In this scenario, the contracting company continues to pay differentials under the swap, but it does not achieve savings on the underlying lease payments. Below 0.3%, therefore, only the economic consequences for the contracting company change, but the aleatory nature in the swap does not disappear. It seems that the Judge confused the economic effect caused by the floor in the underlying lease agreement and/or the hedging needs of the company with the aleatory element in the swap, which does not disappear in the case at stance, but rather it exists for all changes in the interest rate, with different economic consequences in interest rate scenarios below 0.3%.
The risk associated with changing interest rates exists regardless of hedging requirements, which may be lacking entirely. Speculative contracts remain aleatory. The company could have consciously decided to hedge the risk of rate fluctuation above 0.3% by bearing higher charges on the underlying in return for the hedging obtained by the bank. We are in the area of disclosure duties, of the company’s awareness of the effectiveness of the hedge, but not in the governance of the alea that permeates all interest rate scenarios in the swap in the case at hand.
m.divincenzo@macchi-gangemi.com
INTEREST EXPENSES DEDUCTIBLE WITHOUT THE EBITDA LIMITATION RULE: THE NOVELTY OF THE TAX REFORM.
The draft delegating Law to the Government for the tax reform, approved by the Council of ministers on March 16th, 2023, introduces various new tax novelties. Among them, Article 6 redefines the interest expenses deductibility’s regime for companies and entities by introducing the possibility to deduct an amount of interest expenses within a threshold (which the Directive ATAD I fix at Euro 3 million) without considering the 30% EBIDTA limitation rule.
The current domestic regulations on the deductibility of interest expenses for companies and entities (other than financial intermediaries) is provided for by Article 96 of Presidential Decree no. 917/1986 (“Income Tax Code”). These domestic rules, which reflects the most updated EU guidance (see Article 4, paragraph 1, EU Directive No. 2016/1164, “ATAD I Directive”), state that interest expenses and similar charges are deductible in each tax period:
(i) up to the amount of interest income and similar income, and
(ii) for any exceeding amount, up to the limit of the Earnings Before Interests Taxes Depreciation and Amortization (“EBITDA”).
In this scenario, the draft delegating Law to the Government for the tax reform provides for the “[…] revision of the rules governing the deductibility of interest expenses also through the introduction of special allowances […]” (see Article 6, paragraph 1, letter c) of the draft Law).
This revision of the current laws originates from the guidance set forth by the ATAD I Directive, which under Article 4, paragraph 3, allows, as an exception to the general rules, the deduction of exceeding borrowing costs up to a maximum amount fixed at Euros 3 million.
The purpose of the amendment is to render the restrictions imposed by the rules on the deductibility of interest expenses less burdensome for small and medium-sized enterprises but, at the same time, to contrast of tax avoidance and profit shifting (in compliance with the primary scope of the ATAD I Directive).
After discussions with representatives of labour unions, trade associations and professional Orders, the draft delegating law was approved by the Council of Ministers on March 16th, 2023.
After the entry into force of the Law, the Government will adopt the delegated decrees, implementing the principles expressed in the delegating Law, within the subsequent 24 months.
a.salvatore@macchi-gangemi.com
f.dicesare@macchi-gangemi.com
d.michalopoulos@macchi-gangemi.com
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